GUANTANAMO BAY, Cuba - The U.S. government "manufactured" evidence against Omar Khadr when it changed a document two months after his arrest and blamed him for throwing a grenade during a firefight that killed a soldier, his lawyer said yesterday.
The defence made public two documents in a U.S. military war crimes court showing that the on-scene commander altered official documents recounting the events of July 27, 2002, when Khadr was arrested in Afghanistan following a firefight with U.S. forces.
Those documents were received from the prosecution as part of the discovery process.
The information casts further doubt on the culpability of the 21-year-old Toronto man, who was arrested at an Al Qaeda compound at the age of 15.
Khadr is currently detained at the U.S. naval base in Guantanamo Bay, Cuba, which is used as a prison for terrorism suspects.
"The government manufactured evidence to make it look like Omar was guilty," Khadr's military lawyer, U.S. Navy Lt.-Cmdr. Bill Kuebler told reporters after a pre-trial hearing.
He went on to say the government did so "to reflect the reality that was most convenient to the United States government at that time."
The tribunal heard that in one official report dated July 28, 2002, the commander "Lieut. Col. W" wrote that the person who threw the grenade at Sgt. Christopher Speer had died, which would rule out Khadr as the suspect.
Yet, in a near-identical report written two months later, but also dated July 28, the commander changed a single line to read the grenade thrower did not die.
Army Col. Bruce Pagel, the deputy chief prosecutor, later told reporters he couldn't comment on evidence that will likely be part of the trial.
When asked by them if any evidence had been manufactured, Pagel responded with a curt "No."
The Pentagon alleges Khadr threw the grenade that killed Speer before being shot and captured. He is charged with "murder in violation of the laws of war" in Speer's death in addition to attempted murder, conspiracy, spying and providing material support to terrorism.
The two reports surfaced during a hearing in which the defence was seeking disclosure from the prosecution on various items, including the right to question "Lieut. Col. W" before the trial begins.
In particular, the defence wants the identities of all who interrogated Khadr when he was initially detained at Bagram military prison in Afghanistan, as well as their original notes and the techniques they used to extract information.
Although Khadr has so far been subjected to hundreds of interrogations by numerous individuals, Kuebler said he has received original notes from only one individual writing about three sessions.
Particularly troubling, Kuebler told military judge Col. Peter Brownback, was that various soldiers at Bagram were charged and prosecuted for abusing detainees.
It was revealed yesterday that one of Khadr's interrogators at Bagram, identified only as Sgt. C, was court-martialled and disciplined in connection with the December 2002 beating death of a detainee.
Given that Sgt. C was one of Khadr's interrogators, "creates an overwhelming lack of confidence in the evidence that the government is going forward on," Kuebler later told reporters.
But U.S. Marine Corps Maj. Jeffrey Groharing, the lead prosecutor, told the judge the defence team had been given typewritten summaries of those interrogations. He also argued the defence had failed to prove how speaking with interrogators would help their case.
Yesterday, Khadr appeared to be in good spirits as he was led into the courtroom, unshackled, with a guard on each elbow. Khadr was wearing a white prison uniform, which is reserved for detainees classified as "highly compliant."
Throughout the proceedings, he seemed engaged and appeared to pay close attention as both sides made their arguments.
After court, Kuebler explained that disclosure of information from Khadr's three months at Bagram is "critical" because this is when it was first suggested that Khadr threw the grenade.
Given the dearth of information surrounding his early days in detention, the defence told Brownback it was also necessary to gain access to diplomatic notes between American and Canadian government officials.
Kuebler believes correspondence from the Canadian government will show it was concerned about whether Khadr was a child soldier and if he was a participant in the firefight. He told reporters that Canada was putting pressure on the U.S. to address ambiguities in the allegations, which prompted the Americans to fabricate a story about his involvement.
The prosecution said its search of documents provided by the U.S. State Department offered no records relevant to the defence's case.
When Brownback specifically asked if there was any correspondence from the Canadians requesting Khadr's return, the prosecution said it hadn't found any.
Brownback ordered prosecutors to conduct another review.
To further bolster his case and illustrate the distressed physical state Khadr would have been in during those initial interrogations, Kuebler wanted to show a photo of the accused with two gaping bullet holes in his chest. But the judge refused his request.
That photo was recently published in the Star when it reprinted an excerpt of reporter Michelle Shephard's upcoming book Guantanamo's Child: The Untold Story of Omar Khadr.
Questions about whether Khadr threw the grenade first surfaced last month during a pre-trial hearing when a document was mistakenly disclosed to reporters. It stated someone else was with Khadr during the firefight and was still alive when the grenade was thrown.
Khadr's trial is set to begin in May.
Brownback said he would rule on most of the defence motions by late today.
© 2008 The Toronto Star