The Military Commissions Act of 2009, though an improvement over the Bush-era law governing military commission proceedings at Guantanamo, has a number of problematic provisions. A particularly important area is the rules it establishes regarding evidence obtained via torture and other abuse. While in principle it bars the prosecution from relying on statements that the defendant made involuntarily, except in a narrow set of circumstances, developments in the Omar Khadr trial suggest that this protection is not entirely effective.
While in US custody at Bagram Air Base in 2002, Khadr apparently confessed to constructing and planting Improvised Explosive Devices (IEDs) and throwing a grenade that killed US Army Sgt. 1st Class Christopher Speer. One of the key questions at pre-trial proceedings in his military commission trial was whether this confession was obtained by abusive treatment. Several months ago at a pre-trial hearing in the case, a former interrogator testified that he told Khadr a story, which unbeknownst to Khadr was fictional, of another young man who had been gang-raped in prison in order to induce Khadr to cooperate. He also testified on the routine way in which prisoners were abused, including the military's reliance on sleep deprivation, barking dogs and stress positions, although he claimed he could not remember ever using those techniques on Khadr. The military judge ruled that whatever abuse Khadr had suffered, if any, had not prompted him to make his confession, and therefore his confession could be admitted at trial.
In the end, although he previously adamantly denied the charges against him, Khadr pled guilty and entered into a lengthy factual stipulation in which he detailed his crimes, including the killing of Sergeant Speer. Because his guilt is no longer legally in question, the original confession will never be used. Yet, in a strange quirk of military procedures, the military panel issued a sentence, even though the defendant had entered into a plea bargain. The jurors did not know that Khadr had already pled guilty in exchange for an eight-year sentence, with a likely transfer to a Canadian prison after one year. If the jury had delivered a lighter sentence, Khadr would have gotten the benefit of it, so the sentencing hearing was still quite important.
Despite this, the prosecutors put on a full, aggressive sentencing case, arguing that Khadr posed a high risk of dangerousness and recommending that the jury sentence him to 25 years in prison (current commission rules do not allow reductions for time served). The defense argued mitigating factors, including his young age at time of capture, 15, his father's negative role in encouraging Khadr's involvement in al Qaeda, and the abusive conditions of his detention. Or, more accurately, the defense attempted to present to the jury the conditions of Khadr's detention, particularly conditions at Bagram during the first few months after his capture. However, the military judge refused to permit it.
Citing his earlier ruling that Khadr's statements were not the product of abusive interrogation - a ruling that did not directly challenge the interrogator's testimony about the rape threat - the judge held that portions of the transcript relating to that interrogator's testimony could not be submitted to the jury for consideration. The judge also ordered that a letter from another former interrogator detailing Khadr's abuse be redacted. The portions of the letter that did not refer explicitly to Khadr, but instead described routine practice of guards at Bagram while Khadr was detained there, were removed.
The defense intended to call as witnesses two mental health experts who had spent hundreds of hours working on the case. It's not clear why they did not testify, but there is one compelling possibility. Shortly after Khadr pleded guilty, one of his Canadian lawyers, Dennis Edney, declared that in the view of Canadian counsel, "Mr. Khadr is innocent." Although Khadr signed a sworn statement admitting that he was guilty, it is quite possible the mental health experts believe in his innocence as well. If they testified to that, Khadr's guilty plea could have been declared "improvident" and Khadr could have been forced to go on trial. (Khadr's plea agreement specifically states if the stipulation of fact - his detailed admission of guilt - is contradicted, his plea agreement can be withdrawn).
Whatever the reason, absent the defense mental health experts, who would also have tried to testify about the abuse Khadr suffered, the defense case for mitigation was incredibly weak. The harsh sentence chosen by the military jury may reflect this. Having heard next to nothing about Khadr's abuse, and a lot about what a dangerous person he was, they imposed a sentence of 40 years, one that seemed excessive to those privy to much of the evidence the sentencing jury did not get to see.
The plea agreement leaves many questions unanswered. Indeed, we will never even know for sure if Khadr was responsible for killing a US soldier. Prior to the trial, there were compelling indications that another al Qaeda militant actually threw the grenade that killed Sergeant Speer. Even if scientific developments would make greater certainty possible in the future, Khadr's plea agreement includes a promise never to pursue forensic testing of the evidence, and allows the US government to destroy all the evidence following sentencing. Khadr has also waived all appeals and promised not to pursue litigation against the US government in any forum for any matter relating to his detention and trial. No jury will ever hear Khadr's allegations of abuse or the admissions of abuse by a US interrogator. No juror will have to consider how he or she might have felt at 15 years of age, gravely wounded, in enemy hands, when threatened with gang rape.
When Navy Captain John Murphy, the Chief Prosecutor, was asked why he agreed to an eight year sentence for a murderer he said the prosecution had taken into account Khadr's age, family background, and "other factors." One wonders whether those "other factors" are the abuse and possible torture of a 15 year old boy by US personnel.
But no appellate court will ever review the record, and the Supreme Court will never consider the case. In the prosecution's view, those may be compelling reasons indeed to avoid a public trial.