After the drama of the IED video, LTC Jackson stood to cross-examine the agent. Jackson verified that the agent was a professional who is supposed to be objective, yet SA S refused to submit to a pretrial interview with the defense counsel. This was true despite the fact that SA oversaw the creation of the Humvee video for the prosecution. While it does not seem to be standard practice within the civilian community for federal law enforcement agents to make themselves available to both parties before trial, it is customary in courts-martial to allow such interviews by both sides.
Next, the defense counsel elicited that Khadr’s admissions to the agent allowed the removal of the IEDs Khadr set, avoiding injury or death to coalition troops that were the intended targets. SA S admitted he believed Khadr was 15 at the time of the interviews.
On redirect, Capt E asked leading questions that brought an objection from Jackson. Before being permanently excused from the commission, SA S acknowledged that many variables were at play in determining the scope of injuries expected from the dropping of 2 500-pound bombs on a compound, such as that in which Khadr was found.
The next prosecution witness was SA G, who had interrogated Khadr 7 times at GTMO in late 2002. SA G had 21 years of experience with the FBI and a background as a Marine. SA G interviewed Khadr at the Camp Delta hospital with no parent or doctor present. Khadr, with a junior high education, was quiet and cooperative; in fact, he eventually was glad to see the agents when they came for interviews. The agent described a “mutual respect” during their “conversational” encounters during which Khadr was offered food and restroom breaks. Khadr provided a “tremendous amount of information” about his father, as his father was still on the run at that time.
SA G described Khadr’s recounting of the firefight during which he was captured. Khadr thought he’d see signs for Allah, as he believed he’d die in the battle; then he realized the Americans had saved his life. SA G reported Khadr was happy he killed an American soldier and bragged about this to other detainees.
There was an ongoing dispute as to whether the witnesses could testify about Khadr’s lack of remorse for his actions, with the government citing US v. Alis, an Air Force court case that I recognized as involving the court-martial of the staff judge advocate (senior attorney) at a base who had used his office as a dating pool and “recreation center.” The defense argued that “lack of remorse” wasn’t a matter in aggravation. Ultimately, the judge rejected the prosecution’s arguments and refused to allow such testimony because the interrogators did not ask Khadr if he was sorry for his actions.
During the cross-examination, Jackson skillfully read sections of what we believe was the lead interrogator’s (#11) notes from the interrogations in a successful attempt to impeach SA G’s memory that also wove in statements about Khadr’s regrets and other information sympathetic to the defense. Moreover, while SA G had described Khadr as “cold and callous” during his direct examination, those words were nowhere to be found in SA G’s notes from the interrogation. SA G explained that he doesn’t editorialize in his notes; he simply recalled this detail 8 years later. “Editorializing” or simply recording one’s observations about a captive’s demeanor would be quite helpful to put into the notes, so this struck me as a somewhat less than genuine explanation of the omission.
The defense counsel also highlighted Khadr’s isolation during the interviews. He was in the hospital, wounded, and SA G didn’t request permission from Khadr’s doctors to conduct the interrogation. Yet, SA G admitted he gets a doctor’s permission to interview other hospitalized suspects.
A second agent who interrogated Khadr 25 to 30 times in 2002 repeated virtually the same testimony given by SA G.