The Guantanamo "war crimes" trials took another shameful turn yesterday when the Navy lawyer representing Canadian-born Omar Khadr revealed that a 2003 Pentagon manual encouraged interrogators to destroy their hand written notes made at the time of the interrogations. Only last week the military judge assigned to preside over Khadr's trial was unexpectedly replaced, after rebuking prosecution lawyers for their delay in turning over evidence to Khadr's defense counsel.
According the AP and Canadian media, the new disclosure could be used to seek the dismissal of charges against Khadr, and in a pending Supreme Court case challenging the denial of habeas corpus under the notorious Military Commissions Act.
From CanWest News Service:
A formerly secret document shows the Pentagon allowed its Guantanamo Bay interrogators to destroy notes they took of interrogations - a policy Omar Khadr's lawyers say denies them the chance to challenge the legitimacy of any "confessions" he made.
Navy Lt.-Cmdr. Bill Kuebler, Khadr's lead military attorney, stumbled over the interrogation directive as he reviewed prosecution-held documents at the prosecution office of the Pentagon's war crimes commissions.
While he was denied permission to walk out with them, he said he made careful notes - and on Monday is submitting an affidavit of what he learned to the U.S. Supreme Court.
The affidavit quotes from the Pentagon's "standard-operating procedure" manual for so-called Tiger Teams, which typically consisted of an analyst and an interrogator who would together question terror suspects held at the U.S. naval base in Cuba.
The directive is significant because Khadr has said he was subjected to coercive interrogation techniques after U.S. forces seized him in Afghanistan in 2002. Kuebler says interrogators' initial handwritten notes may have corroborated those claims because - unlike later typed summaries - they would typically detail everything that went on.
"By destroying handwritten notes containing 'interrogation information' and preserving only the sanitized summaries, interrogators effectively destroyed evidence of illegal treatment of detainees - as well as evidence that could be used to contradict the statements recorded in the summaries," Kuebler said in a statement.
According to Kuebler, the Pentagon Manual suggests military lawyers were aware that contemporaneous evidence of interrogation techniques could undermine any future trials:
According to Kuebler's notes, the directive says: "Once . . . created, handwritten interrogator notes may be destroyed. This mission has legal and political issues that may lead to interrogators being called to testify, keeping the number of documents with interrogation information to a minimum can minimize certain legal issues."
Khadr's case has been followed closely in Canada but so far, the Canadian government has not sought to interfere, even though Canadian lawyers have sought to have Khadr released to and tried by Canada. In addition, Khadr was no more than 15 when he was captured in Afghanistan in 2002. (See here and here for a discussion of the International Law under which minors, generally regarded as "victims" rather than "criminals," can be prosecuted.) For more background, see here and here.
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