Author: Spencer Ackerman

White House Internet wizard Jesse Lee writes to defend the record of the solicitor general and Supreme Court nominee:

Most prominently, a handful of Republican Senators and conservative commentators have attempted to portray Kagan as “anti-military” due to her opposition to “Don’t Ask Don’t Tell” during her tenure as Dean of Harvard Law School, citing her continuation of Harvard’s non-discrimination policy that required employers using the recruiting services provided by the Office of Career Services to agree not to discriminate based on sexual orientation or other criteria. Of course Kagan’s opposition to the policy was in no way anti-military — just as opposition today from figures such as General Colin Powell or Joint Chiefs of Staff Chairman Admiral Mike Mullen is rooted in admiration for all those who serve, so too was Kagan’s. Indeed, Brigadier General Patrick Finnegan, dean of the academic board at West Point, described such characterizations of Kagan as “ludicrous.”

A common claim from these critics is that the military was “banned” from the campus altogether during Kagan’s tenure as Dean – in fact, not only was the military allowed to continue to recruit in classrooms on campus and through the Harvard Law Students Veterans Association, a review of the recruitment figures has shown that recruitment kept completely on pace with previous years during Kagan’s time. Even more absurdly, some have claimed that Kagan’s upholding of Harvard’s nondiscrimination policy somehow violated the law – in fact, there has never been a law requiring that campuses allow military recruiters, only that the government was empowered to deny federal funds if military recruiters were not given access, so this claim is preposterous on its face. As the New York Times reported, “Her management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law.”

It would certainly be ironic if a line of conservative attack against Kagan is that she was far too inflexible about adhering to the letter of existing policy and existing law. That said, the guy who first concocted the idea that Kagan had a problematic relationship with the military because of the way she handled Harvard’s position on “Don’t Ask, Don’t Tell” is a liberal (and my former boss), Peter Beinart.

It’s difficult not to be skeptical here, but the Iranian regime is announcing that it’s reached a deal, brokered by Brazil, to send the majority of its uranium to Turkey to be enriched into a state unsuitable for nuclear weapons. On the face of it, that would revive a deal President Obama proposed last year to have a third country do Iran’s enrichment for it, thereby putting time back on the clock before Iran went nuclear to assemble an international strategy to change Iran’s decision-making on developing nuclear weapons. Iran rejected that offer.

But that’s the face of it. The United States is in its strongest position ever at the United Nations Security Council to place economic sanctions on Iran, thanks in large part to consistent Iranian rebuffs of U.S. outreach. That means the smart strategy for Iran is a late-breaking show of superficial reasonableness. “This is a potentially important breakthrough and could signal a return to engagement, which everyone wants to see,” proliferation expert Jacqueline Shire tells Politico’s Laura Rozen. But it remains to be seen if what everyone wants to see gets in the way of what they should see.

The Obama administration has yet to comment on the prospective Turkey enrichment move.

GUANTANAMO BAY — A youthful-looking woman in a gray suit with long brown hair is known only to us as Interrogator Number 11. She was a military interrogator at Guantanamo Bay who interrogated the detainee she refers to as “Omar” from October 28, 2002 until November 14, 2002. The timeline indicates she was the first interrogator, and certainly the first military interrogator, to interrogate Omar Khadr after FBI Special Agent Robert Fuller queried Khadr in Bagram. The thrust of her testimony is simple: Not only did Khadr talk to her voluntarily, he was personally warm to her.

Far from the picture of coercion painted by Khadr’s attorneys, Number 11 testified, “It was a very relaxed, open, very friendly atmosphere. He smiled a lot. Always willing to talk.” As part of what was called a Tier Three interrogation team, she interrogated Omar twelve times, first in a hospital ward and later in one of 20 interrogation rooms in two trailers in the detention facility’s early days. Number 11 said she was specifically assigned to Khadr because she could be “more of a mother figure for him, and he could relate to me.”

In Number 11’s telling, it worked. She said Khadr told her, “I would rather be with you than bored in my cell … anytime, call me.” She said she never heard a thing about Khadr being in any way abused, and specifically talked about seeing what she called the “Rumsfeld Memos” authorizing more abusive treatment for detainees — and said she specifically forswore using any. In return, she said Khadr provided “detailed information” about al-Qaeda’s training camps, guest houses and chain of command. “He would always say to me his father was fourth in command for UBL,” the military acronym for Osama bin Laden. “He’s met Osama bin Laden. He’s met his wives, his children, at the Jalalabad compound. … He played with his children.”

“Omar,” she said, was a cooperative and talkative interlocutor, even correcting spellings, pronunciation and timelines when she misstated them in her notes or mis-recited them to him. On several occasions, Number 11 testified, she would “not even have to ask follow-up information because he [gave] such detailed information. He was very alert.”

GUANTANAMO BAY — Sometime during this hearing, Omar Khadr’s lawyers intend to call as a witness someone identified only as “Interrogator #1.” Interrogator #1, his lawyers told Col. Patrick Parrish, the military judge here, will testify to personally threatening Khadr with rape during Khadr’s detention at Bagram Air Field in 2002. But before Interrogator #1 ever says a word in Parrish’s proceedings, the prosecution got to work undermining the credibility of his account.

Navy Capt. John Murphy, one of the prosecutors, asked FBI Special Agent Robert Fuller, who interrogated Khadr six times at Bagram in October 2002, if Fuller ever heard Khadr discuss “rape, being shipped to Egypt” or anything of the sort. ”No, I did not,” Fuller replied.

Did Khadr have the opportunity to raise such threats with Fuller? “Certainly at the beginning or end of interviews or even during interviews,” Fuller said. “But we typically asked him at the end of interviews well-being questions.”

It is unknown why Interrogator #1 plans on potentially incriminate himself on Khadr’s behalf. The defense claims that another pseudonymous intelligence operative, known as Interrogator #3, materially misrepresented a report that would have corroborated Interrogator #1’s account and discovered that misrepresentation in a Justice Department inspector general’s report.

GUANTANAMO BAY — A question that intuitively speaks to the voluntariness of Omar Khadr’s statements to interrogators in Bagram (and later Guantanamo) in 2002 when U.S. forces captured him after a July firefight in Afghanistan’s Khost Province: Was Khadr a child back then?

FBI Special Agent Robert Fuller, who interrogated Khadr six times in Bagram in October 2002, testified earlier this week that he was “aware” of Khadr’s age when interrogating him, but that it didn’t change his interrogation plans in any way. Khadr was born on September 19, 1986. He was 15 years old when the U.S. captured him and had just turned 16 when Fuller interrogated him.

So, Kobie Flowers, Khadr’s attorney, wanted to know, was Khadr a child then? “I guess, depending on [when] you consider a person turning to an adult,” Fuller said. Come again? “I would not legally consider him an adult, but would consider him to be doing adult-like actions, [like] constructing IEDs.”

But that means he’s a kid, right? Flowers said. Particularly the way Khadr looks on the extremist video obtained shortly after his capture? “He looks young,” Fuller said, “younger than when we met him.”

Flowers appeared frustrated. “You’re not gonna give me that he’s a kid?” he asked.

“I’m not going to argue semantics with you,” Fuller replied.

Flower moved on, and recited how old he was when he met a variety of extremists. Khadr was 10 years old when he met someone named Abu Tariq; 10 or 11 when he met Abu Ibrahim and Abu Qatada and the slain al-Qaeda operative Abu Laith al-Libi; 13 years old when he met Ayman Zawahiri and 13 or 14 when he met the long-at-large al-Qaeda military committee member Saif al-Adel and the extremist strategist Abu Mus’ab al-Suri. He was 11 years old when he first met Obama bin Laden.

What about another aspect of the extremist video? Flowers asked. Did Fuller hear Khadr say someone looked “like a teddy bear” and if so, “Does that speak to a certain level of sophistication?” he wondered.

“I don’t know that was a particular nickname someone had,” Fuller said, conceding nothing.

GUANTANAMO BAY — After a lengthy exchange in which Kobie Flowers, an attorney for Omar Khadr, sought to establish that preparatory material used by FBI Special Agent Robert Fuller, who interrogated Khadr six times at Bagram Air Field in October 2002, included material derived from abusive treatment — something Fuller resisted, but not firmly — Flowers introduced a twist. “I’m going to ask a question from Mr. Khadr,” Flowers said, in reference to his absent client, who he said passed him questions to ask Fuller. “Did you hear of any torture or mistreatment going on at Bagram?”

Fuller asked if Flowers wanted to give him “fact or rumor.” Answer as you like, Flowers replied. “I’m not aware of any factual information, but there were rumors as to some techniques,” Flowers said, like “yelling at detainees. Music played. Like I said, I don’t have factual knowledge of that.” He was, Flowers helped him remember, aware of at least one military interrogator who was court-martialed for detainee mistreatment, and possibly a second.

Flowers continued, passing on a second question from Khadr: “Did you hear of any detainee deaths?”

“I did hear about one,” Fuller answered. (Two detainees are known to have died in U.S. custody in Bagram in 2002: Dilawar and Habibullah. Both were killed by U.S. forces in the detention facility in December 2002, after Fuller interrogated Khadr that October. It isn’t clear to me whether Fuller is referring to one of them, or referring to a contemporaneous other death he knew about.)

The prosecution challenged the relevance of Flowers’/Khadr’s questions, but Flowers replied that they spoke to whether an environment existed at Bagram conducive to uncoerced statements. Fuller added that as per FBI protocol at the time — something documented in a recent Justice Department inspector general report into FBI activities at military and CIA detention centers — he did not Mirandize Khadr, though he conceded that usually providing Miranda rights ensures the court-certified voluntariness of a statement.

GUANTANAMO BAY — Col. Patrick Parrish, the judge presiding over Omar Khadr’s military commission, gaveled the third day of the proceedings into session. For the second morning in a row, Khadr is not in the room.

Khadr received medical treatment yesterday for what a retired Army medical corps general called an “urgent” condition resulting from shrapnel that remains in his eyes from his 2002 capture in Afghanistan. He initially resisted attending his hearing after officers at the detention facility attempted to place blacked-out goggles on his face for transportation to the courthouse, which he considered painful and humiliating and which aggravated his condition, according to ret. Brig. Gen. Stephen Xenakis.

Jeff Groharing, the chief prosecutor in Khadr’s case, immediately called Khadr’s absence “voluntary.” Marine Capt. Laura Bruzzese testified that Khadr told her this morning his eye is feeling better — at one point, she said, he joked with her, “I hope you don’t have to be a witness today” — but objected that the guards “are trying to intimidate” him by performing what she said was a standard search of his waistband to ensure no items were smuggled out of Camp Delta. The search entails a guard using a finger to stretch the elastic waistband on a detainee’s pants all around his midsection, shaking it, to see if anything falls out. “The cuffs were hurting his shoulder” as well, she testified he told her “almost an aside.”

“I want to come to court, but I want to come respectfully,” Khadr told Bruzzese, she testified. Rather than experience another provocation and potentially jeopardize his case through an outburst, she said, he opted not to attend.

“I understand the sensitivity” with testimony about detainee movements from Camp Delta, said Khadr lawyer Barry Coburn, but requested Parrish to consider the impact of the procedures for transferring detainees “insofar as it relates to his state of anxiety.” His cross-examination of Bruzzese briefly took an odd detour into figuring out “which digit” is typically used by a guard in a waistband search.

“My client is perceiving he is being penalized… by an actual de facto change in the process,” Coburn said, despite firm denials from the military that no deviation from standard procedure for detainee transport has occurred in Khadr’s case.

Parrish ruled that Khadr’s absence is voluntary and without extenuating circumstance. “No one has disrespected Mr. Khadr,” he said. “We will continue without him.”

GUANTANAMO BAY — Navy Commander Brad Fagan, a spokesman for the military command running the detention facility here, told reporters that Omar Khadr “is being looked at right now by a doctor.” Khadr is experiencing an “urgent” medical condition, according to Dr. Stephen Xenakis, who briefly checked him out earlier this afternoon, owing from a combination of residual shrapnel in his eyes, conjunctivitis and elevated blood pressure.

Fagan explained that Khadr has an appointment to see an optometrist tomorrow. There’s a full-time optometrist at Guantanamo’s Naval Hospital, but there isn’t a proper ophthalmologist, an actual eye doctor. The optometrist’s examination of Khadr will be transferred to an ophthalmologist off-base. It’s doubtful that Khadr actually saw a doctor this morning, although a Marine captain testified this morning that he visited an infirmary in Camp Delta and received some pain-relieving eyedrops.

Asked if the command would entertain the idea of permitting Khadr not to wear the blacked-out goggles that Xenakis said “aggravate” Khadr’s condition during transport from his cell to court, Fagan replied, “That’s hard to say. We’d have to see what the Joint Medical Group doctor has to say and what the optometrist has to say.” The goggles are a security measure to protect guards from the prospect of a detainee assault during transport. They do not touch the detainees’ eyes, ski-goggle style, Fagan clarified.

Fagan additionally challenged the defense’s claim — which clearly comes from Khadr himself — that Khadr had not previously been forced to wear the goggles and accompanying noise-dampening earmuffs while in a vehicle. It’s “standard operating procedure for the transport of detainees,” he said, adding that “there hasn’t been any deviation from the procedure,” in Khadr’s case or others. As far as Fagan is aware, this is the first time Khadr objected to wearing the goggles.

“At any time, if the detainees have discomfort in this area, all they have to do is say something to a guard,” Fagan said, “and they’ll be looked at.”

GUANTANAMO BAY — Stephen Xenakis, a retired brigadier general in the Army medical corps and a psychiatrist as well as a general practitioner, didn’t have time to conduct a thorough examination of Omar Khadr, who complained this morning of pain in his eye. But Xenakis did have the chance to look at Khadr — who has conjunctivitis aggravated by the shrapnel that remains in his eyes, leading him to cry in court this afternoon, as well as elevated blood pressure — and he called Khadr’s condition “urgent.”

“If Omar Khadr were a young man who came into an emergency room, and I’m speaking here as a general physician,” Xenakis told reporters, with “his history of having had the head wounds that he did, the shrapnel that is still in his eyes, the opacity — that is, clouding of the lens, the emergency surgery that he had on his left eye, he had some procedures as well on the right eye that still retains shrapnel, and he complains of this headache — mostly also with pressure of nausea — then this is a condition that becomes urgent.” He recommended Khadr’s case “be referred to as quickly as possible to an ophthalmologist, to be evaluated to see if these symptoms are attributable and treated as acute conjunctivitis or something more serious.”

Several of us asked Xenakis if that indicated Khadr has been given insufficient medical care. He backed off that characterization, and said that he considered the severity of Khadr’s treatment consistent with discovering the condition last night, when Khadr apparently began complaining of pain. Asked about the blacked-out ski goggles Khadr was forced to wear to be transported from his cell to court, Xenakis added, “The medical opinion I was prepared to render is that the goggles aggravated his medical condition.”

I asked if Xenakis would recommend the Joint Task Force responsible for the Guantanamo Bay detention facility not place the goggles on Khadr tomorrow if Khadr appears in court. “Personally, if I was making a medical decision, because the goggles aggravate his condition, I would probably recommend they not be used,” Xenakis said.

Barry Coburn, Khadr’s lawyer, said he didn’t want the hearing delayed, as it has taken years for Khadr to receive any form of justice, and this most hearing has been delayed several times already. But he said “there’s a humanitarian issue in ensuring the pain is treated,” and if he’s not treated, “that level of pain, by its very nature, impairs his ability to participate in his defense. That’s just a matter of basic fairness.”

GUANTANAMO BAY — The prosecution in Omar Khadr’s pre-trial hearing screened what may be its trump card when the actual trial portion of the military commission gets underway in July: a 25-minute video captured by U.S. forces in Afghanistan showing a 15-year old Omar Khadr in a compound with people making and emplacing roadside bombs. The older men on the tape, believed to be from 2002, talk openly about intending to use them on Americans. Only the tape doesn’t show Khadr emplacing the bombs, and only briefly shows him handling a part believed to be for an improvised explosive device.

Khadr, a Canadian citizen, followed his family to Afghanistan, particularly his parents, who appear to be well-connected to al-Qaeda. In the video, it’s not clear if his father is present. But Khadr is shown with a number of adult men who specifically talk about attacking Americans in Afghanistan. (In a different shot, one fans himself and says, “As for the jihad against the heat, it is the hardest.” They sit on a carpet with wires and what appear to be circular Italian VS 2.2 anti-tank mines. At one point, Khadr — chubby-cheeked, with bushy hair and a wispy mustache — handles a piece of equipment that appears to be related to the bomb construction.

The video is amateur — several voices ask if the camera is on or working properly — and it repeatedly and abruptly splices together random footage. Some of it shows men horsing around, calling each other names. Other parts show a fat man eating a mango and wiping his fingers with pink toilet paper. An odd shot shows a reclining, shirtless man balancing a piece of machinery on his chest and occasionally trying to lick it. Khadr briefly appears, lit by green night vision, giggling in a close up of his face while appearing to still be in the compound, checking to see if the camera works.

It cuts out, and several minutes pass before the camera captures an extended nighttime scene of men digging into the road to emplant an improvised explosive device. There is briefly sound of a “young male’s voice,” as FBI Special Agent Robert Fuller testified. The picture is dark, and it does not clearly show anyone who looks like Khadr.

There are other shots of Khadr on the tape. In one, he sits on a carpet, fanning himself, complaining of the Afghan heat and expressing thanks to his hosts for the fruit juice they gave him. There is an AK-47 in the background, but Khadr does not touch it in the frame. At one point he tells a disembodied voice, “You look like a teddy bear.”

Portions of the tape have aired on CBS’s “60 Minutes.” (I couldn’t immediately find it on YouTube.) To the best of my knowledge, the version of the tape we watched in court has previously been aired in a different Guantanamo hearing for Khadr, but not outside of a courtroom.

Khadr’s attorney, Kobie Flowers, objected to the airing of the tape, calling it irrelevant and unfairly prejudicial. Flowers argued that the hearing is to determine the voluntariness of Khadr’s statements to interrogators and the place for images that speak to the overall merits of the prosecution’s case against Khadr is the full hearing. (Although Flowers said yesterday he would seek to exclude the video for trial.)

But the prosecution won out. The statements on the video “show the maturity and the sophistication and the intellect of the accused,” Navy Capt. John Murphy said. “Although the statements themselves are going to be elements at trial, they’re supportive of the fact that they’re both voluntarily provided and reliable.”

The video, it should be said, does not include anything relevant to the murder charge against Khadr.

GUANTANAMO BAY — Crisis averted. With his right hand shielding his eyes and dabbing at his eyes with a tissue, Omar Khadr returned to court for his pre-trial hearing. Joe DellaVedova, a spokesman for the military commissions, confirmed there was no forced cell extraction. Khadr appeared voluntarily.

That doesn’t mean he’s doing well. Khadr’s lawyer, Barry Coburn, told Col. Patrick Parrish, the judge in the case, that Khadr “has been and is now in a lot of physical pain” as the result of “foreign bodies” that remain in his eyes as the result of 2002-era shrapnel wounds he sustained during his capture in Afghanistan. The foreign bodies, combined with “severe conjunctivitis” in his non-functional left eye and some in his right, as well as elevated blood pressure, left him in “extreme pain,” Coburn said. Parrish agreed to end the hearing today at 4 p.m. accordingly.

Coburn said that the blacked-out goggles that detention-facility officials wanted Khadr to wear to transport him from his cell to court were “exacerbating” the pain. Commander Brad Fagan, a spokesman for the detention command, contradicted an earlier claim by Coburn, saying that Khadr’s treatment this morning followed “longstanding security transport procedures.”

GUANTANAMO BAY — We’ve just been informed that the recess ordered by Col. Patrick Parrish, the military judge, to ensure Omar Khadr will be advised of his fundamental rights in his military commission, has been extended to 2 p.m. But that doesn’t mean we’ll be out of the procedural thicket in another hour.

Uncomfortable with moving forward until Khadr knows his rights, Parrish told Khadr’s lawyers that either they can administer those rights by proxy at Camp Delta or he’ll order what’s called a “forced cell extraction” — having guards force Khadr into court. Khadr did not attend a pre-trial hearing this morning, and prosecutors and defense counsel sparred over whether that decision was actually voluntary.

But even if Parrish opts for the “forced cell extraction” (or FCE in military acronym-ese) that doesn’t necessarily mean Rear Adm. Thomas Copeman, the commander of the detention facility housing Khadr, will comply. “In the past Admiral Copeman has refused to do a FCE without a court order,” Navy Commander Brad Fagan, a spokesman for Copeman’s command, emailed reporters here. “As per Khadr and today’s events, we’d have to wait and see what the judge/court decides to do (i.e., if they decide to issue a court order or not).” Parrish, in other words, may have to issue a formal court order for the FCE — and see if Copeman complies.

Omar Khadr and the Guantanamo Bay detention center (ZUMA, Spencer Ackerman)

GUANTANAMO BAY — Welcome to the first courtroom logjam of what officials here call military commissions 4.2.

Omar Khadr’s pre-trial hearing this morning experienced an unexplained hour-long delay. Court officers filtered in at 10 a.m., without a certain important individual: Omar Khadr.

Image by: Matt Mahurin

Prosecution promptly called a Marine Corps captain, Laura Bruzzese, to testify that she informed Khadr at 5:15 a.m. that there was a hearing scheduled for this morning. Khadr had a blanket over his head and complained of pain in his left eye, which has been sightless after an injury sustained during his 2002 capture in Afghanistan. She had him escorted to the infirmary, where he received an eyedrop for the pain, and in Camp Delta security officers attempted to load Khadr into a van to transport him to court. Part of that transfer involved putting what Bruzzese called “Eyes and Ears” on Khadr: blackout ski goggles and earmuffs to block out his senses while in transit.

Only Khadr refused. When Bruzzese asked him why he wouldn’t wear the Eyes and Ears — standard operating procedure for transiting a detainee, she testified — Khadr responded, “The only purpose is to humiliate me.” Under cross-examination, she testified that the van used for transport has no windows. Khadr wouldn’t, in other words, be able to understand where he was going even without the Eyes and Ears.

Khadr’s aggressive defense lawyer, Barry Coburn, contended that Khadr was not voluntarily absent from the hearing. “My understanding is that this has never been done before,” Coburn told Col. Patrick Parrish, the military judge, referring to the placement of the Eyes and Ears on a detainee in the van.

Parrish didn’t appear sympathetic. “This court is not going to second-guess the security requirements” placed by military officials here for detainee transfer, he said. Parrish denied Coburn’s requests to call witnesses to testify as to the involuntary nature of Khadr’s refusal to attend.

But then Parrish returned from a brief recess arising from an unrelated issue with new facts. Court reporters verified that the prior judge in Khadr’s case, Col. Peter Brownback, did not inform Khadr during his 2007 arraignment that a defendant has the right to attend every hearing in his case and that the proceedings will not stop if he declines to attend.

“I don’t feel comfortable proceeding until it is clear on the record that he has been so advised,” Parrish said, preparing to bang his gavel down for a recess. “The Manual says it is so fundamental.”

Before he did, Parrish urged defense counsel to visit Khadr at Camp Delta and “advise him of his fundamental rights.” If Khadr affirms to his lawyers that he understands and still doesn’t want to attend, Parrish said he’d accept that outcome. Alternatively, Parrish said he would “have him forcibly brought” to court to inform Khadr of his rights. (One of the most knowledgeable reporters here, Carol Rosenberg of the Miami Herald, said that judges don’t necessarily have the authority to order a detainee movement, as it’s been challenged in prior cases.)

So thanks to an obscure procedural snafu from 2007, Coburn and his partner, Kobie Flowers, are racing to Camp Echo, where detainees meet with their lawyers, to talk to Khadr. Neither would tell me in the confusion of the courtroom which option they’d choose. But they brought along Steve Xenakis, a mental health expert, to evaluate Khadr — most likely so that if Khadr declines to attend, they could proffer an expert statement about how voluntary he considers his absence.

“How quick can we get on the road, guys?” was the last thing I heard Coburn say before his team raced out the door.

The court reconvenes at 1 p.m. One potential problem: Camp Echo is outside the wire of Camp 4, the facility for “compliance” detainees, where Khadr resides. Conceivably, security officers could force Khadr to put on the Eyes and Ears, even to talk to his lawyers at Echo.

GUANTANAMO BAY — I’ll be heading into the courtroom for Day 2 of Omar Khadr’s pre-trial hearing shortly, and that means I’ll be unable to provide any updates until I leave the super-secure facility (no cellphones, no computing devices of any kind, no nothing) around lunchtime. But something I wasn’t able to fit into my recap of Day 1 was a savvy move by the prosecution: They want the judge to authorize them to conduct an evaluation of Khadr’s mental health without defense counsel present — something that will delay the pre-trial hearing’s resolution by several weeks.

The legal grounds on which chief Khadr prosecutor Jeffrey Groharing seeks the exam are a bit obscure. But Groharing’s fellow prosecutor, Air Force Cpt. Christopher Eason, argued that the defense’s contention that Khadr has suffered depression and post-traumatic stress disorder consistent with surviving abuse — the basis on which the defense wants a judge to rule that Khadr’s statements to interrogators are inadmissible — obliges the government to seek its own determination. What’s more, Eason continued, the defense hadn’t made Khadr’s mental health records available to the prosecution, offering instead to let them talk with the defense’s mental health experts. Finally, Eason said that the exam the government seeks can’t occur with defense counsel present, since that might “prejudice” the outcome of the exam.

Unacceptable, said Kobie Flowers, a lawyer for Khadr, since it would entail Khadr “incriminating himself by participation” in the exam. “That’s certainly way outside the ballpark in my experience,” Barry Coburn, another of Khadr’s attorneys, told reporters after the hearing adjourned for the day. “We’re going to, I think, have a very strenuous objection.”

Army Col. Pat Parrish, the judge in the Khadr case, didn’t decide the issue today. But he appeared surprised when he asked Eason how long the prosecution anticipated it would need for the exam. “Five weeks,” Eason replied.

“That would require a recess in continuance of the suppression motion,” Parrish intoned. And that’s serious. Khadr’s actual military commission is scheduled to start July 12. It can’t get underway until the pre-trial hearing settling the suppression motion that the defense filed is resolved, since the motion cuts to the heart of what the prosecution can use as the basis of its case against Khadr. Further delays, in other words, put the trial date at risk — especially since the defense is likely to raise new procedural objections if Parrish grants the prosecution’s request.

Eason was unmoved. “The government’s contention is this is critical,” he told Parrish.

A view from the recreation yard at Camp 4 of the Guantanamo Bay detention center (Photo by Spencer Ackerman)

GUANTANAMO BAY — Making the most of their first court appearance since President Obama halted and then resumed the military commissions, attorneys for Omar Khadr, the Canadian citizen held here since he was 15 years old and charged with murder and support for terrorism, launched a forceful case Wednesday afternoon that a military judge should bar from court all statements Khadr made to his interrogators for the last eight years.

Image by: Matt Mahurin

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“We will show this case was tainted by these statements from the very beginning,” Kobie Flowers, one of Khadr’s lawyers, told a packed courtroom, with Khadr himself seated just a few feet away. The physical and mental abuse that Khadr claims in an affidavit to have suffered at the hands of U.S. law enforcement, intelligence and detention personnel “contaminated” the heart of the government’s case against Khadr, he said: “The well, as it were, was poisoned.”

But in the hearing’s most dramatic moment, Flowers said at least one interrogator would testify to having personally taken part in Khadr’s abuse. As detailed in a motion filed by the defense in 2008, Khadr claims in his affidavit that his interrogators threatened him with rape, denied him medical treatment for gunshot and shrapnel wounds he suffered in his July 2002 capture in Afghanistan, and used him as a “human mop” to clean up his own excrement. The interrogator, referred to in the hearing only as “Interrogator #1,” will testify on behalf of the defense that he personally threatened Khadr “with rape” by threatening to render Khadr to an undisclosed Arab country where he would face the abuse.

Flowers and Coburn further alleged that the government has impaired its ability to investigate Khadr’s case and accordingly hindered their ability to defend their client. They said that at least 31 different law enforcement and intelligence agents had interrogated Khadr, but that the government had only provided them access to three — and that one of them, known only to the court as “Interrogator #3,” may have falsified a report of Khadr’s interrogation — something they learned only after reviewing an extensive report from the Justice Department into FBI knowledge of abuse at Bagram Airfield in Afghanistan and Guantanamo Bay.

The Manual can’t resolve more fundamental disputes concerning the military commissions. Several times throughout Wednesday’s hearing, Khadr’s lawyers referred the detainee’s “Constitutional rights,” only to face objections from the prosecution that the Constitution doesn’t apply to the Guantanamo population. Parrish, seeking to streamline the issues he must adjudicate, instructed counsel to table the debate.

GUANTANAMO BAY — Seated near me in the courtroom today during Omar Khadr’s pre-trial hearing was a sight for sun-beaten eyes: Daphne Eviatar, the former TWI legal affairs correspondent who’s now working for Human Rights First. Shortly after Army Col. Pat Parrish, the judge hearing the case, gaveled this afternoon’s proceedings into recess, I caught up with Daphne so she could walk everyone through the highlights of the defense’s attempt to suppress Khadr’s statements to interrogators from being used against him in his scheduled July military commission.

Video after the jump:

GUANTANAMO BAY — A brief detour from my Guantanamo coverage, as a State Department official, speaking only on background, confirmed something else I’ve been working on. The private security company formerly known as Blackwater and now known as Xe Services, will be allowed to bid on the next generation of the State Department’s lucrative Worldwide Protective Services Contract. The company’s track record of killing Iraqi civilians, shooting at Afghan civilians, taking for personal use U.S. military-issued rifles from the Afghan police and setting up shell companies to win government contracts will not be an obstacle.

Once again, the fact that no federal acquisition official has recommended Blackwater be barred from bidding on federal contracts means, the official said, that “any company, including Xe Services and its subsidiary companies, [may] submit a proposal in response to an acquisition process established on the basis of full and open competition.” While a Blackwater/Xe Services spokeswoman did not reply to repeated phone calls seeking comment before I left for Guantanamo, she told me last year that the company intends to bid on the contract — which is the successor contract to the one that allowed it to protect U.S. diplomats in Iraq and Afghanistan in the first place.

Nor is the fact that the Iraqi government took away Blackwater’s license to operate in Iraq a dealbreaker. “The solicitation is for undefined worldwide requirements,” the State Department official said, meaning any specific country “license is not required for the award of the base contract.”

The last Worldwide Protective Services contract, as it’s formally known, was awarded to a consortium of three firms: Blackwater/Xe, Triple Canopy and DynCorp. This time around, State intends to award it to six firms, who will then bid on the right to protect diplomats in specific dangerous countries. The year-long contract has an annual option for renewal for four years, making it essentially a four-year contract. Its cost has yet to be determined, but it’ll be announced — along with the winners — by September 30. A back-of-the-envelope calculation places the value of the previous WPS contract at $2.2 billion.

Sen. Carl Levin (D-Mich.), whose Armed Services Committee uncovered the shell-company establishment and the Afghanistan weapons diversions, wrote to Attorney General Eric Holder in February to request the Justice Department investigate the company for fraud.

GUANTANAMO BAY — Only two reporters actually got into the courtroom where Omar Khadr’s pre-trial hearing will take place to suppress his statements to interrogators. (I wasn’t one of the reporters: my lottery for the pool coverage had me heading over this afternoon.) But Army Lt. Col. Jon Jackson, one of Khadr’s military lawyers, just ventured forth to tell the press corps not to bother: the hearing is delayed.

How come? Because of yesterday’s late-breaking release of the Manual for the military commissions. Col. Pat Parrish, the judge hearing the case, ordered a delay until 1 p.m. so that prosecution and defense counsel (and, perhaps, he himself) can familiarize themselves with the Manual’s prescriptions for the commissions’ rules of evidence and procedure.

I’m in the afternoon pool to sit in the courtroom. There’s no way to communicate with the outside world inside the super-secure courtroom. (I can’t even tweet!) So I’ll have to update you from the hearing after the session concludes, probably in the early evening.

GUANTANAMO BAY — There were doubts, after yesterday’s late-breaking release of the Manual for military commissions, whether this morning’s pre-trial hearing to suppress Omar Khadr’s statements to interrogators would go forward at all. Now, the hearing’s about to get underway — whether Col. Pat Parrish, the military judge in Khadr’s commission, will order a delay when it does, is a different story — but it begins with a different surprise.

Michelle Shephard of the Toronto Star scoops the rest of us here by reporting that the government offered Khadr’s lawyers a plea deal: five years on top of the seven years the Canadian citizen has already done at Guantanamo and Bagram. Khadr’s defense counsel turned down the deal. Breakfast conversation among reporters was garnished with speculation about whether the rejected plea offer means the prosecutors at the Defense Department’s Office of Military Commissions think they can’t win the suppression hearing — meaning a lot of evidence against Khadr wouldn’t be entered into court when his military commission properly begins in July — or that they don’t want the flagship case of the Obama era to be one against a defendant captured and mistreated when he was 15 years old.

Either way, we’re about to get going here. The press still does not have the Manual. We do, however, have 2007-era copies of protective orders preventing us from reporting “identifying information of intelligence personnel” in the event Khadr’s interrogators testify — or, for that matter, the “names or other identifying information” of seemingly any witnesses. (Yes, these are protective orders flowing from the 2006 Military Commissions Act that the Supreme Court struck down.) So get ready for some “Witness #1″ descriptions!

GUANTANAMO BAY — This morning, attorneys for Omar Khadr, the Canadian citizen charged with murder, conspiracy and material support for terrorism, will attempt to persuade a military judge to exclude from his military commission every statement Khadr made to a U.S. interrogator. They will argue, as they have in their motion, that Khadr’s youth (15 years old at the time of his capture), the confusion caused by the circumstances of his detention and the broad implications of that treatment render all his statements inadmissible. Right now, a judge has no guidance for ruling in this dispute outside of the Military Commissions Act of 2009 — unless he’s a speed-reader. And its provisions on this question reflect the influence of a man who has since become chief commissioning officer of the military commissions.

Section 948r of the Act is what Col. Pat Parrish, the military judge, will have to apply to Khadr’s case. It’s meant to exclude any “statement obtained by the use of torture or by cruel, inhuman or degrading treatment.” Sub-section (d), however, provides guidance about other statements not directly produced by such coercion and how “voluntary” a judge should consider them — precisely the question at stake in tomorrow’s pre-trial hearing.

The judge “shall consider the totality of the circumstances” around how a defendant provided such a statement. That includes “the circumstances of the conduct of military and intelligence”; the “characteristics of the accused, such as military training, age, and education level”; and “the lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.”

Interestingly, that’s a standard proposed by Vice Adm. Bruce MacDonald, then the Navy’s judge advocate general, last July to a Senate panel. During a hearing of the Senate Armed Services Committee during the drafting of the Military Commissions Act of 2009, MacDonald argued that there needed to be a broader standard for admissible evidence than fruit-of-the-poisoned-tree-concerned senior officials from the Justice and Defense departments wanted:

To assist our practitioners in the field, I recommend that you develop a list of considerations to be evaluated in making this determination.

Those considerations should include the degree to which the statement is corroborated, the indicia of reliability in the statement itself and to what degree the will of the person making the statement was overborne. [snip]

I am worried that a military judge that has a voluntariness standard imposed upon them is going to look at a statement taken at the point of a rifle, when a soldier goes in, breaks down the door, and takes a — takes a statement from a detainee, I’m worried that they’re going to apply a voluntariness standard to that. And I would argue, that’s an inherently coercive environment, when you have a rifle pointed at you.

And I’m concerned the judge is going to look at that under a strict voluntariness standard and say, that statement doesn’t come in. I would rather see this as part of a totality of the circumstances leading to, is the statement inherently reliable?

And what I’ve proposed is a series of factors that would give the judge more guidance, perhaps, on how to do that analysis.

Sen. Carl Levin (D-Mich.), the chairman of the committee, replied, “If you have actual language on your factors, you might want to share it with us.” MacDonald pledged to do just that.

It’s unclear how the considerations listed in the “totality of the circumstances” language will apply to Khadr’s case. Age is an explicit consideration, and one Khadr’s lawyers are pushing for. However, the “totality of the circumstances” might also mean that the “change in place” of Khadr’s questioners between Afghanistan and Guantanamo — or their “change in identity” during his Guantanamo detention — might inhibit the defense’s ability to contend nothing Khadr said was voluntary. Parrish will consider the question this week. (Maybe not necessarily starting tomorrow as scheduled, though, now that the commission Manual has just been issued.)

Oh, and Vice Admiral MacDonald’s newest job? Chief commissioning authority for the military commissions. After all, he’s clearly had more influence than anyone who isn’t an administration official or legislator over the Military Commissions Act of 2009.