Aisling Reidy [Senior Legal Advisor, Human Rights Watch]: "On March 13, the defense for Omar Khadr had some fairly basic objectives – to get the government to disclose evidence, such as notes relating to the interrogation of their client when he was 15 years old, so that they could prepare their defense. They also wanted to take a deposition from a witness, a commander who had filed contradictory reports on a grenade attack in Afghanistan on July 27, 2002, for which their client stands trial. They also sought to uncover more about the treatment of their client when he was detained at Bagram in Afghanistan, seriously wounded in 2002. The government strongly objected to all such requests, arguing that their legal duties under the Military Commissions Act of 2006 were fulfilled. The military commissions judge ultimately sided with the defense, granting the defense motions, requiring the government to disclose more evidence than it was clearly ever prepared to do. This was a significant ruling in a case already controversial for its prosecution of a former child soldier, allegations of torture, and suggestions that evidence may have been amended to suit the government charges.

Deposition

On Friday, March 14, at the Military Commission at Guantanamo Bay, Army Col. Peter Brownback presiding in the case of United States v. Omar Khadr, ruled that the United States government had to make available for deposition a Lieutenant Colonel who was the on-scene commander on July 27, 2002, the day the then 15 year old, Omar Khadr is alleged to have thrown a grenade that killed a U.S. soldier.

At hearings on March 13, the government had submitted that it "strongly" and "vigorously" opposed the deposition of the soldier known as LTC "W". Invoking rule 702(c)3(a) of the Rules for Military Commissions, the prosecution claimed that the request should be denied "for good cause", e.g. to protect classified information. Khadr's defense argued that this witness was a very important witness to recreating what happened on July 27. Moreover there was a clear discrepancy in reports that he had filed, the first on July 28, 2002, indicating the person who threw the grenade had been killed on the spot and the second, filed some two months later, claiming that the grenade thrower had survived — directly implicating Khadr, who was seriously injured having been shot at least twice in the back. Despite the government's assertions that the defense would get their chance with the witness at trial, Judge Brownback agreed with the defense that the "interest of justice" would be better served by requiring his deposition: something that must now take place before April 4. The judge had pressed the government as to what the consequences would be if LTC "W" did not turn up for trial, but it was not something the government was prepared to speculate on. Judge Brownback clearly did not feel that leaving it to see whether or not the government would make this witness available when trial commences, was a risk that was worth taking "in the interest of justice." Khadr's defense attorney, Lt. Cmdr. William Kuebler, has made it clear that he believes there are indications that the battlefield report may have been deliberately altered to cast blame on his client, a charge denied by the prosecution.

"Materiality"

The equally strident protests of the government team to further disclosure of many documents including, identification of interrogators, interrogation notes of Omar Khadr and correspondence between US and Canadian authorities about Omar Khadr (Khadr being a Canadian citizen) were also ultimately unpersuasive to the Judge. While the defense sought evidence that they determined to be "material to the preparation of the defense," the government consistently repeated that it was satisfied that it had met its disclosure obligations under the Military Commissions Act, and there was nothing they had which would be "exculpatory" or "helpful to Khadr's defense." The prosecution continued to point to the discussion section of the Rules of the Military Commission which directs that for guidance on what is "material to the preparation of the defense," and thereby subject to disclosure, regard to United States v. Yunis, a case under the Classified Information Protection Act (CIPA), should be had. The argument was that the standard of "materiality" in such cases is a heightened one, and that the defense needed to show evidence would be "relevant and helpful to the defense" to achieve disclosure. Khadr's defense objected to an overly narrow application of what was "material," arguing that the discovery must include that which is relevant to the defense case and which may lead to the discovery of other relevant and potentially exculpatory material.

In the end Judge Brownback, while declining to define the scope of discovery, but specifically noting that the discussion section of the rules was non-binding, ordered the government to supply a list of personnel who conducted interrogations of Khadr, and make any such individual that the defense wishes to interview available at the end of a phone line. The government also has to hand over all notes at all interrogations taken by any government agents, including interrogators, since July 27, 2002. The government was also ordered to make available for examination the complete investigation file with regard to the allegations of political interference in the Office of the Chief Prosecutor by the legal advisor to the convening authority.

Finally, the judge ordered the government to go back and re-examine communications between the United States and Canada, including U.S. forces' battlefield communications from Afghanistan around the time of Khadr's capture and to identify all known witnesses of the firefight.

In one exchange that hinted at a certain umbrage in having to account to the Commission, the prosecution at one stage seemed to challenge the judge's calling into question of their disclosure, or lack of it. "If the military judge is not willing to accept our assertion … " the prosecution began, at which stage the judge cut them off, as if to suggest "don't even go there." Indeed the decision of the judge to order discovery shows that he was not satisfied to leave it up to the government to determine whether something was "helpful" to the defense. It now remains to be seen how the government complies with the judges instruction, and whether Khadr will finally get a chance to see the evidence against him or expose more details of his ill treatment."