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American Forces Press Service

Case of Accused Teen Terrorist Hits More Legal Roadblocks

By Sgt. Sara Wood, USA
American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, April 6, 2006 The military commissions case of accused terrorist Omar Khadr, which has already dealt with questions about pre-trial publicity, was confronted with more legal issues yesterday, with the defense team facing an ethical dilemma and then going on to challenge the presiding officer's fitness to serve.

The defense's ethical dilemma came after Canadian-born Khadr, 19, told the court he was boycotting the proceedings because he was not being treated fairly, even though he was cooperating in the commissions. Khadr's defense counsel, Marine Lt. Col. Colby Vokey, said the boycott came because Khadr had been moved to solitary confinement March 30, which made it difficult to prepare his defense. After a heated exchange with Marine Col. Robert S. Chester, the presiding officer, and a brief recess, the defense requested that the confinement issue be dealt with right away.

Chester denied the defense's request, and Vokey and Muneer Ahmad, Khadr's civilian defense counsel, said they could not continue with proceedings because it was against their client's wishes. Ahmad said that Khadr had made clear to them that he wanted the confinement issue resolved before any other proceedings took place. To continue would be a conflict with their client's, and therefore would be an ethical violation for the attorneys, Ahmad said.

Chester said the court could not immediately decide the issue of Khadr's confinement status, because the prosecution had not had any time to do research and find possible witnesses. Because there was no legal authority that proved continuing would be an ethical violation, he ordered proceedings to move forward. The defense team cooperated with further proceedings, but under protest.

In a statement issued after the morning's proceedings, a Joint Task Force Guantanamo spokesman said no one at Guantanamo Bay is ever in solitary confinement.

"Consistent with Army regulations, individuals in a pre-trial status are separated from the general population," said Navy Cmdr. Robert Durand, director of public affairs for JTF Guantanamo. "These measures are largely for the protection of the detainee."

Most of the detainees charged by the Office of Military Commissions are housed in Camp 5, which is a state-of-the-art facility completed in May 2004 where detainees can communicate with one another and use a recreation yard, Durand said.

In later proceedings today, during voir dire -- the process by which the legal counsel determines if a judge can be fair and impartial -- the defense raised two issues that caused them to challenge the suitability of the presiding officer and ask him to step down from the case.

The first issue raised was Chester's extensive attention to material in the media and other outside sources about this case. This issue was dismissed quickly by the prosecution and by Chester, because his stated reason for looking at the material was to ensure nothing in the public domain would affect the fairness of the hearing.

"These commissions are important; that there be a full and fair trial is important; that Mr. Khadr's rights are protected is important," Chester said in response to questions about his reasons for paying attention to the media.

The other issue raised was the fact that Chester, who has extended his service past retirement to serve in the commissions, currently has a job application in to become an immigration judge for the U.S. government. The U.S. attorney general makes selections for immigration judges, and the attorney general has a personal interest in the outcome of the military commissions, Vokey said, so that puts Chester in a compromising position.

"You are asking for a job from someone who has a vested interest in how you decide this case," Vokey said.

The prosecution countered that the attorney general does not have any authority in military commissions, and therefore is not affected by the outcome. Chester agreed, saying that his decision will not be influenced by his application.

Chester denied the defense's request that he remove himself from the case, and said further details as to why he made this decision will be provided at a later date.

Khadr is charged with attempted murder based on the allegation that he emplaced improvised explosive devices on routes frequented by U.S. military convoys. He also is charged in connection with a grenade attack that killed Army Sgt. 1st Class Christopher Speer and two Afghan military members in Afghanistan on July 27, 2002.

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