GUANTANAMO BAY U.S. NAVAL BASE, Cuba A Canadian teen was buried facedown under the rubble of a bombed-out compound when someone threw the grenade that killed a U.S. soldier in Afghanistan, according to a soldier's report cited at the U.S. war crimes tribunal at Guantanamo on Friday.
The account raised doubts about whether Canadian defendant Omar Khadr, who is charged with murdering U.S. Army Sgt. 1st Class Christopher Speer, could have thrown the grenade that killed Speer during the July 2002 firefight in a suspected al Qaeda compound in Afghanistan.
Defense lawyers want the soldier who gave that account of the battle to testify at Khadr's January 26 trial at the U.S. naval base in Guantanamo Bay, Cuba.
They debated the witness list in court on Friday even as they hoped that U.S. President-elect Barack Obama will pull the plug on the Guantanamo tribunals before Khadr's trial begins.
Obama takes office on January 20 and has said he would move the Guantanamo trials into the regular civilian or military courts. He has not specifically addressed how he would handle Khadr's case or 16 others already pending in the Guantanamo tribunals, which were established by the Bush administration to try foreign captives on terrorism charges and have been widely condemned by human rights activists and foreign governments.
"I cannot believe that the Obama administration really wants as one of its first official acts to be the first administration in U.S. history to preside over the trial of a child on war crimes," said Navy Lt. Cmdr. William Kuebler, Khadr's military lawyer.
Khadr, now a tall and bearded 22-year-old, was 15 when he was captured by U.S. forces who entered the compound after the aerial bombing ended. Speer was in the lead and was hit with a grenade but accounts of what happened next varied widely.
Khadr was sitting up and moving when a U.S. soldier shot him twice in the back, believing he had thrown the grenade that hit Speer, according to the shooter's report on the incident.
But another participant, identified in court documents only as Soldier No. 2, gave military investigators a conflicting account of what he found upon entering the compound.
"Mr. Khadr was so covered in rubble that soldier No. 2 inadvertently stood on top of him and thought he was standing on a trap door because the ground did not seem solid," according to a court document based on that soldier's report to military investigators.
"He bent down to move the brush away to see what was beneath him and discovered that he was standing on a person and that Mr. Khadr appeared to be 'acting dead.'"
Photographs taken at the scene show a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt, Kuebler said.
He said the photos, which were not shown publicly, "make it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer."
Defense lawyers also want to call as witnesses other U.S. soldiers who told investigators that U.S. forces were also throwing grenades at the time, suggesting Speer might have been killed by friendly fire.
Khadr, the Toronto-born son of an alleged al Qaeda financier, is one of two Guantanamo prisoners captured as juveniles and charged with crimes that carry a maximum penalty of life in prison. He has claimed he was abused and threatened with rape in U.S. custody in Afghanistan and at Guantanamo.
Prosecutors said Khadr's age could be a mitigating factor at sentencing but that they were confident the evidence would show he knowingly carried the crimes as charged. Their evidence includes videotape of Khadr building and planting roadside explosives in Afghanistan.
They said they were prepared to go to trial in January.
"We have no control over the political circumstances one way or the other," said one of them, Navy Capt. Keith Petty.
Khadr is charged with murder, attempted murder, conspiring with al Qaeda, providing material support for terrorism and spying on U.S. forces who invaded Afghanistan to route al Qaeda after the September 11 attacks.
(Editing by Jackie Frank)