May 21, 2011
“Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we’ve done every thing but the world doesn’t get it, so it might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is, and if the world doesn’t see all this, to what world am I being released to? A world of hate, unjust and discrimination! I really don’t want to live in a life like this.” – Omar Khadr in a letter to defense attorney Dennis Edney.
Omar Khadr was the first child soldier to be charged with a war crime since world war two. The non-existent crime that he was charged with, “murder in violation of the law of war” can be summed up as: It is legal for US soldiers to kill children. It is a war crime for children to kill US soldiers.
After eight years of delays while the US government searched for a possible crime and changed courts and judge, Omar found himself in front of a military tribunal with seven military officers who decided his fate ought to be another forty years of imprisonment. (For a sentence of ten years or more, six of the seven jurors had to agree.) Human Rights Watch said of the fifteen officers selected as potential jurors, All of the 15 indicated that Khadr’s age held no significance for the case. … An Air Force Captain said that in his opinion, a child would need to be as young as five or six to avoid adult courts if accused of a homicide.
The plea deal
The entire trial process was filled with irregularities. The killed US Special Forces fighter became a “medic” for the duration of the trial. Jurors attended church and Sunday brunch with prosecution witnesses and the widow of the Special Forces fighter. The plea deal revealed a completely rigged trial with some horrific implications for post trial:
- The defense was not allowed to test physical evidence (including DNA) brought by the prosecution, or bring any physical evidence of their own, and the prosecution was granted permission to destroy such evidence upon sentencing
- He is never allowed to “initiate or support” any action against the United States or any official with regards to his “capture, detention, prosecution to include discovery practice, post conviction confinement and/or detainee combatant status,” and he must dismiss all presently pending action.
- While in custody he must submit to “interviews” “whenever and wherever requested by United States law enforcement officials, intelligence authorities, and prosecutors”, without legal counsel present, and “appear, cooperate, and testify truly, before any grand jury, any court, military court or hearing, military commission or any other proceeding requested by the United States Government.”
- He agrees that if he is not “truthful” in his testimony, he “may be prosecuted for perjury, false statement or other similar offense before any court or Military Commission having jurisdiction over me.”
His own defense was determined by the prosecution:
- I will not seek to offer any testimony, in any form, from any detainee presently held at Naval Station Guantanamo Bay:
- I will not seek to obtain any depositions to be offered at the presentencing hearing, nor will I offer any depositions at the presentencing hearing;
- I will not seek to offer the testimony, either in court or via VTC of any witness, other than: (I) Dr. Katherine Porterfield: (2) Dr. Steven Xenakis. (3) Captain McCarthy; and (4) Dr. Arlette Zinck, all of whom the Government has agreed to produce at U.S. Naval Station, Guantanamo Bay, Cuba for sentencing. (understand that sentencing proceedings will not be delayed to if these witnesses are unavailable.)
His transfer to Canada is “contingent upon the consent of the Government of Canada,” which is still open to refusal, diplomatic notes notwithstanding.
The petition for clemency
Earlier on WL Central we reported that Khadr’s defense was petitioning for clemency and asking that his sentence be reduced from eight years to four (he had already served eight by the time of his trial). His US defense counsel have written that a few days before trial, they first learned that the prosecutors’ witness, Dr. Welner, proposed to testify that Omar was at high risk to recidivate as a violent extremist. The defense obtained expert testimony from Dr. Marc Sageman, a far more qualified expert, which completely refuted Dr. Welner’s credentials and testimony.
The prosecutors informed the defense that they had consulted with the Convening Authority and, if the defense filed to have Welner’s testimony withdrawn, the prosecutors had the Convening Authority’s permission to withdraw from the pretrial agreement. The defense then agreed to only object orally. The prosecutors countered that if they objected orally, they would still withdraw. The defense attempted to negotiate further, the prosecutors refused. “Faced with the immediate prospect of the Government withdrawing from the pretrial agreement and with no time to make any further record” the defense agreed to it all. The defense now maintains that the government relied on witness Dr. Welner’s testimony to “intimidate the sentencing panel” and “wrongly shielded Dr. Welner’s testimony from the standards of admissibility clearly defined by the Supreme Court and the Military Commission Rules of Evidence.”
In an initial phone call, Dr. Sageman told Omar’s defense, “Dr. Welner’s proposed testimony and conclusions are not valid; Dr. Welner does not have a baseline to make anything more than a guess; and Dr. Welner’s sample size is Omar Khadr.” In a following letter, provided pro bono, Sageman writes, “… as an internationally recognized expert in terrorism and counter-terrorism, I know of no published study that addresses the issue of dangerousness in terrorists. This piqued my curiousity about the basis of Dr. Welner’s “professional” opinion at testimony. … His c.v. mentioned that he took a fellowship in forensic psychiatry at the University of Pennsylvania in 1991-1992. I was at the University of Pennsylvania at the time and the university did not have a forensic psychiatry fellowship at the time. … he did not do a fellowship in forensic psychiatry at the University of Pennsylvania as he testified under oath … Indeed, his c.v. shows that at the time, 1991-1992, he engaged in a full time residency in psychiatry at Beth Israel Medical Center, in New York City.
Regarding Welner’s testimony, Sageman writes, “the interview lacks the usual ethical warning to a defendant that the defendant has the right to not answer questions and that there is no confidentiality between the expert for the prosecution and the defendant. The interview did not ask for any past psychiatric history and did not review potential psychiatric symptoms to assess the mental health of the defendant that could have a bearing in the assessment. Later, Dr. Welner claims that religiosity is correlated to dangerousness – a claim that is in fact without foundation – but he never probed the defendant’s level of religious understanding, beliefs and piety.”
Dr. Sageman then goes on for pages, devastating the credibility of the background sources Dr. Welner relied upon for his authorities. In Dr. Sageman’s opinion, Dr. Welner is very articulate and quite persuasive on the stand, mostly because he conveys very positive and forceful opinions to a jury. He concluded that Dr. Welner displayed this trait in this case. If the jury was indeed swayed by Dr. Welner, which seems unavoidable since he was the star witness, Dr. Sageman’s testimony should have made a very significant difference. It is hopefully unlikely that a judge would have allowed testimony from a witness who falsified their background and relied on completely unscientific methods and misunderstood or unreliable authorities. If he had, surely the jury would have agreed, given the proper rebuttal from the defense, with judge Colonel Parrish who the defense quote as stating, “Dr. Welner would have been as likely to be accurate if he used a Ouija board.”