MIAMI (Reuters) - A military judge presiding over the first Guantanamo tribunal of the Obama era will seek to determine this week whether U.S. forces tortured a confession from a Canadian accused of murdering an American soldier in Afghanistan.
The judge will decide what evidence can be used against Omar Khadr, 23, one of six prisoners at the U.S. Naval Base at Guantanamo in eastern Cuba that the Obama administration has designated for trial by military tribunal.
The base’s detention center currently holds 183 captives.
Khadr, who was 15 when he was captured during a firefight at a suspected al Qaeda compound near the Afghan city of Khost in July 2002, has spent a third of his life locked up with adult prisoners at Guantanamo.
He could be jailed for life if convicted in the first war crimes tribunal since World War Two to prosecute someone for acts committed as a child.
President Barack Obama froze the tribunal prosecutions immediately after his inauguration in January 2009 to give his administration time to sort out what he has called “quite simply a mess” at Guantanamo.
The military prison was opened in 2002 under then-President George W. Bush to house suspected terrorists and has drawn international condemnation and criticism from human rights groups who say inmates have been abused and tortured.
Khadr’s evidentiary hearing, starting on Tuesday, is scheduled to be the last step before his July trial in the tribunals, which Obama criticized as a presidential candidate.
“Obama should be turning the page, not adding to that history,” said Jennifer Turner, who will observe Khadr’s hearing for the American Civil Liberties Union.
By keeping some terrorism suspects in the military tribunals and trying others in civilian criminal courts, Obama has drawn fire from all sides.
Six prisoners have been designated for civilian trial in New York, including five accused of plotting the September 11, 2001, attacks. Obama is reconsidering that decision, which critics say could make New York a target, require costly and disruptive security measures and bestow U.S. constitutional rights on undeserving foreigners.
Even with new fixes that Congress adopted to bar coerced evidence, opponents of the military tribunals say they lack established precedent and an independent judiciary.
“We are basically going to trial where there is no rule book,” said Barry Coburn, one of Khadr’s lawyers. “It does not afford what any competent criminal lawyer would regard as anything approaching due process.”
Even those who view both systems as legitimate have criticized Obama for failing to pick one or the other to try terrorism suspects. They said that sets up a dangerous double standard that gives some defendants more rights than others.
The cases of Khadr and his brother, Abdullah, especially raises questions about equal treatment under the law.
They are the sons of Ahmed Said Khadr, an alleged al Qaeda financier and Osama bin Laden confidant who was killed in a shootout with Pakistani security forces in 2003. The U.S. military says he took them to al Qaeda camps in Afghanistan to learn how to use guns, grenades and explosives.
The Obama administration is pressing Canada to extradite Abdullah Khadr, 28, for trial in the U.S. District Court in Boston on charges of supplying rockets and other weapons to al Qaeda and conspiring to kill Americans abroad.
But it views a military tribunal as the right venue to try Omar Khadr on charges of conspiring with al Qaeda and murdering an American abroad — he is accused of killing U.S. Army Sergeant Christopher Speer with a hand grenade and making roadside bombs for use against U.S. forces.
Justice Department spokesman Dean Boyd said he could not comment specifically on how the decisions were made. He pointed to general guidelines that account for factors such as the nature, gravity and location of the offense, the identity of the victims and the need to protect intelligence sources.
Twenty to 30 guards, interrogators and other witnesses are expected to testify next week at the hearing to determine whether Khadr’s statements to interrogators were the unreliable product of illegal torture, as the defense contends.
His defense team says the interrogations began as Khadr lay shackled to a stretcher at the Bagram air base in Afghanistan, regaining consciousness in a hospital for the first time since U.S. soldiers shot him during the gunfight a week earlier.
Defense lawyers say that during at least 142 interrogations at Bagram and Guantanamo, Khadr was beaten, doused in freezing water, spat on, chained in painful positions, forced to urinate on himself, terrorized by barking dogs, subjected to flashing lights and sleep deprivation and threatened with rape.
Prosecutors contend Khadr was treated humanely and has fabricated the abuse allegations.
Canada’s Supreme Court has ruled that Khadr’s rights were violated when Canadian intelligence agents interrogated him at Guantanamo, and the Canadian government has asked the United States not to use those statements as evidence.
Editing by Tom Brown and Paul Simao