The prosecution’s sentencing case began Tuesday. We watched the court members (3 females, 4 males) file out of their van, each carrying a garment bag with their service dress uniform into the courthouse as we were going through our own security processing.
The court was called to order just after 9am, with the military judge briefly inquiring of Khadr whether he wanted to stick with his guilty plea entered yesterday. Khadr responded that he did. This was a matter of some speculation yesterday after one of Khadr’s Canadian consultants (attorneys) made statements at the press conference that could have led to the reopening of the providency inquiry regarding Khadr’s plea.
After a brief discussion of proposed prosecution sentencing exhibits, the judge admitted a number of documents. He also admitted a 10-second video of an improvised explosive device (IED) blowing up a Humvee, over defense objections on relevance and unfair prejudice grounds, and then the members joined us in the courtroom. Although COL Parrish allowed everyone to sit as soon as the members entered, both the prosecution and defense attorneys remained standing until all the members had taken their seats, reminding me of an unwritten rule of decorum in military court.
The military judge immediately inquired as to whether any of the members had heard anything about the case during the 2-month recess. Such a recess, especially with members already seated, is a highly unusual occurrence in the military justice system. Fortunately, military members are trained to follow orders to the letter, and only 1 member volunteered that he had heard anything about Khadr’s case during the break. In individual voir dire conducted by Parrish after the other members returned to the jury deliberation room, the member explained that he had seen 2 brief news items about a potential plea deal, although he hadn’t heard what the terms of such a deal were. Member #5 then assured Parrish that this additional information would not affect his ability to fairly act as a member on the case. Neither the prosecution, nor the defense, chose to challenge #5 over this, and all the members rejoined us in the courtroom.
The sentencing case started with Parrish informing the members that the plea had changed during the 2-month recess; now Khadr had pled guilty to all charges and specifications, thus relieving the members from having to complete the findings phase of the commission. After this, the judge gave short, initial presentencing instructions that mirrored those used in courts-martial. He also estimated that the case would end near the close of this week. At that point, LTC Jackson, the lead defense counsel, reminded the judge to introduce the new defense counsel on the case, the USAF major, which Parrish did.
The first evidence the trial counsel presented to the members was prosecutor Groharing reading the 50-paragraph stipulation of fact aloud to the members. Much of the first part of the agreement between the parties and the accused centered on a history of al Qaeda and Khadr’s family’s involvement in al Qaeda. It mentioned Khadr’s al Qaeda training, his making and planting of land mine, and his fluency in 4 languages (English, Arabic, Pashto, Dari). Khadr’s desire to kill lots of Americans figured prominently in the agreement.
The stipulation then shifted to the firefight at the al Qaeda safehouse in Afghanistan where Khadr was captured. The leader of the cell left when he heard US forces were approaching, but Khadr remained even after the women and younger children left the compound. Two Afghan soldiers were killed by someone in the compound after the compound’s occupants refused to meet with US forces. I noticed 1 commission member kept an eye on Khadr as Groharing read the passages about Khadr’s opportunities to leave the compound.
Capt E from the prosecution called the first witness, Special Agent (SA) S, to the stand. S is a hazardous/explosive devices examiner supervisor at the FBI lab in Quantico. The court recognized SA S as an expert in bomb making and explosives. SA S described the F-1 Russian anti-personnel grenade of the type used to kill Speer. SA S then walked the members through various prosecution exhibits that featured still photos from a video which showed Khadr and his group making and placing IEDs with the intent that coalition Humvees would run over them, causing them to explode. These video stills were often shown alongside replicas assembled by the FBI agents for a demonstration requested by the prosecution. This testimony culminated with the showing of Prosecution Exhibit 24, the 10-second video of an IED blowing up a Humvee. My entire row of spectators jumped at the explosion, even though we knew it was coming. Predictably, the Humvee was blown to pieces.