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By Jennifer Turner, Human Rights Researcher, ACLU Human Rights Program

Yesterday was day two of pretrial hearings in the case of Toronto-born Omar Khadr, who has been in U.S. detention for a third of his life, since his capture at age 15 in Afghanistan.  The hearing was sidetracked by Khadr’s refusal to come to court because of a medical condition and marred by the military judge’s lack of concern — even though, according to his lawyers, he's in significant pain.

The chair usually occupied by Omar Khadr was conspicuously empty when yesterday’s hearing began. Khadr’s lawyer Barry Coburn announced to the court that Khadr was experiencing "extreme physical pain" in his left eye—which was blinded by shrapnel in the firefight when he was captured. Khadr was given eye drops and originally said he intended to attend the hearing, but when he was to be transferred from the prison to the courthouse in the back of a windowless van, guards required him to wear "eyes and ears," tight-fitting blackout goggles and sound-blocking earmuffs. But the blackout goggles pressed painfully against his eyes, so he refused to ride in the van with them. His lawyers said he’d never been required to wear the goggles and earphones in the van before Wednesday.  

Khadr has attended every military commissions hearing in his case, until today. He’s usually attentive during hearings and hasn’t claimed medical reasons for not participating before, according to his lawyers.

The judge, U.S. Army Col. Patrick Parrish, appeared utterly unsympathetic and announced he wouldn’t second-guess the military’s changed security procedures. Judge Parrish announced the hearing would continue without Khadr—until he realized that Khadr wasn’t properly read his rights when he was arraigned in 2007. No judge had ever advised Khadr of his right to attend hearings and the consequences of not attending when hearings proceed without him, as required by both the old rules manual and the new rules released Tuesday night. We recessed until afternoon, to give Khadr’s lawyers an opportunity to persuade him to come to court.

Wearing the white uniform designated for compliant prisoners, Khadr shielded his eyes as he entered the courtroom for the afternoon session. Khadr hunched over with his head in his hands throughout the hearing, and appeared to be crying into balled-up tissues at times. Dr. Stephen Xenakis, a retired Brigadier General and expert witness for the defense who examined Khadr during the morning recess, later explained to reporters that Khadr has a serious infection aggravated by shrapnel in his eyes. Dr. Xenakis said Khadr’s condition is urgent and requires immediate medical attention.

Judge Parrish showed no concern for Khadr’s condition and flatly rejected defense arguments that his eye pain, exacerbated by the blackout goggles, prevented him from participating in the hearing. Coburn argued that Khadr’s medical condition is "debilitating and extremely painful" and affected his ability to focus on and participate in his own defense, but the judge was unmoved. Later, Coburn remarked to reporters, "you can’t have a fair trial unless the defendant can participate actively."  

Coburn has a good point. An accused’s ability to participate is important in any criminal case, but was particularly crucial yesterday as the court heard testimony from FBI Special Agent Robert Fuller about interrogations he conducted of Khadr at Bagram. Defense lawyers have asked the court to exclude self-incriminating statements they say Khadr made as a result of torture and other abuse.  

It seems critical that Khadr be able to concentrate on Fuller’s testimony, so that he can help his lawyers challenge Fuller’s assertion that Khadr was "happy" and "eager to talk to us" during interrogations at Bagram.

Omar Khadr’s entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments and multiple sets of rules since he was first charged in 2004, and it still hasn’t gotten off the ground. Khadr’s military commissions case has been plagued by procedural and legal problems, and today’s events—Khadr’s inability to follow important testimony and the discovery that he wasn’t read his rights at his arraignment—are only the latest examples. As we’ve seen in Khadr’s case, the military commissions are a recipe for endless legal challenges and delay. Enough is enough.

Originally posted to ACLU on Fri Apr 30, 2010 at 06:40 PM PDT.

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