Omar Khadr’s Hail Mary (Allah) Pass at GITMO Tribunal

by Jerry Gordon (April 2011)

Last year’s eventful proceeding of admitted Jihadist Omar Khadr at Guantanamo served as a prelude for the Obama Administration’s turnabout commitment to military trials.

The Guantanamo Military Tribunal conviction of Khadr, Canadian citizen and son of al-Qaeda financier turned teenage Afghan Al Qaeda Jihadi, was based upon his acceptance of a plea bargain in late October, 2010 for the killing of a US Army medic in Afghanistan and the preparation and laying of explosive mines in July, 2002.  That plea bargain was brokered by our State Department with the Canadian Foreign Ministry without the knowledge of the military jury in the Khadr proceeding.

Khadr’s trial began in August when Presiding Judge, Patrick Parrish, blew Khadr’s phony claims of torture by the US military out of the water, and his admissions were to come before the jury. Khadr had fired still another pair of devoted defense attorneys in order to stage a “cry for help” to his conspiratorial supporters that he could not get a fair trial. All of this while the Parrish court contorted itself to give him every allowance and legal assistance he could receive, including three mental health expert witnesses. Parrish even gave the defense the jury they wanted, despite prosecution challenges. After years of phony torture and mistreatment claims, including a self-serving video in which Khadr played up his plight for the United Nations, the Military Commission finally went to trial.

Lt. Col Jon Jackson’s opening argument featured a picture he claimed, depicted the stricken Khadr, and so mangled that he could not have been responsible for killing Army medic SFC Speer. Khadr’s supporting journalists from Al-Jazeera, the New York Times and the Toronto Star in the gallery were stunned, when a very credible prosecution witness, the Special Forces soldier who shot Khadr, demonstrated how it could not have been Khadr in the photo, but rather dead terrorists. The Khadr defense was caught flatfooted with more damning videotaped evidence of bomb making that followed. Lt. Col. Jackson collapsed in front of a shocked courtroom with the soldier who shot Khadr still on the witness stand.

Jackson was whisked off to the hospital for “tests” that only suggested that he had had gall bladder surgery earlier, hardly an explanation for the two months of delays that followed. Rather than a diagnosis, a plea deal emerged from nowhere that stopped the runaway train of what appeared to be a smartly designed prosecution in its tracks. Canadian free speech advocate Ezra Levant speculated about how the Obama Administration basically threw the Khadr fight. One should question how Omar Khadr – admitted Jihadist who made bombs and admitted murdering a US soldier as an al-Qaeda loyalist — got so generous a plea deal as eight years, with only one additional year to be served in GITMO.

The empanelled jury passed sentence ignorant of the pre-arranged plea deal. A sentencing hearing resumed in October. Previewing the proceeding, Michelle Shephard, the national security reporter for the Toronto Star wrote an adulatory piece about Khadr’s experts, especially psychiatrist Dr. Stephen Xenakis, who was prepared to say that Khadr was “not dangerous.” Xenakis was put forward as a former US Army Brigadier General who was moved by his conscience. (Xenakis, never did testify in court, kicked to the curb by his own defense team even after they went so far as to  trumpet him in their opening statement).

Unfortunately for Khadr, the prosecution team hired Dr. Michael Welner, Chairman of The Forensic Panel. Dr. Welner is well-known to those of us who follow terrorism and well known to the American legal community. Welner is the top forensic psychiatrist in the country and is brought in whenever a case requires a difficult melding of investigation and psychiatric understanding. Welner has developed a reputation for doing quality, airtight, and honest work. At the Annual Meeting of the American Academy of Forensic Sciences this year, a past President of the organization lauded his work as “meticulous” and his reports “amazing quality of detail.” ABC News has made him the most visible forensic psychiatrist in America. We greatly appreciated his fine written examination on psychopathy, media, and the psychology at the root of terror. We have long been impressed with his clear and incisive thinking and open-minded way of studying cases wherever the evidence leads. We personally recommended him to Senator Joe Lieberman last year to assist in their inquiry of the Nidal Hassan massacre at Fort Hood.

The evidence in Khadr’s case led Welner to conclude Khadr’s claims of torture were bogus, and Welner’s work helped prosecutors turn a libel that had scandalized the US government into a debunked afterthought. When the sentencing hearing presented the question of future dangerousness, Welner presented testimony to the jury from over 100 sources setting a higher bar for risk assessment of potential Jihadists. Welner’s testimony was a material element  in the prosecution’s case that culminated in a symbolic 40 year sentence for Khadr. And this from a jury his defense team handpicked.

The jihad apologists among the media covering the Khadr proceeding responded bitterly to the effect that Welner’s testimony had on the jury’s sentence. They embarked on a cynical campaign to delegitimize his testimony – and now, Dr. Welner himself. First came longtime Gitmo detainee reporter, Carol Rosenberg of The Miami Herald, who lied to her readers when she “quoted” Welner calling Khadr “irredeemable.” Then came Michelle Shephard of the Toronto Star, the longtime cheerleader for the Khadr defense team. She managed in a single article to misrepresent nearly every reference to Welner’s testimony, capping it with a completely false and shocking headline of Welner’s testimony being based on inbreeding research.

We have followed Shephard’s biased coverage of Khadr, including her airbrushed “bio” of Omar Khadr in her book Guantanamo’s Child: The Untold Story of Omar Khadr –a fawning paean for a convicted terrorist.  Shephard has even spoken at a rally to free Omar Khadr. The Toronto Star effectively sent Shephard, an auxiliary of terrorist Khadr’s defense team, as its “national security correspondent” to cover a trial as “news” without disclosing the patent conflicts of interest. We had written about Shephard’s jailhouse devotion to Khadr in our coverage of the recent news of the Federal Canadian Justice Ministry appeal of an Ontario court decision of August, 2010 freeing his older brother Abdullah from the prospect of extradition to the US on unrelated terror charges.

In late March 2011, the Khadr defense filed a clemency motion in late March attacking Dr. Welner’s expertise, ethics, interview, and testimony. Self-styled terror “expert” Marc Sageman was the hammer defense attorneys used to attack Welner. Sageman, a former CIA case officer is the author of Leaderless Jihad: Terror Networks in the 21^st Century whose research and findings, especially his blind “bunch of guys” theories have been disputed by noted counterterrorism expert, Bruce Hoffman and others. Sageman has profited from feeding this bafflegab to feckless officials in the US Government.  

The defense team had the chutzpah to ask for clemency when Khadr had already agreed to plead guilty to murder, laying bombs to kill many American troops, and martyrdom Jihadism. That and the latitude given the Khadr defense team defy credibility.

It came as no surprise when the Khadr defense team used the all-too-willing Shephard, once again, to leak the clemency filing smear job as a “scoop” against the prosecutors and Dr. Welner. Of the clemency motion, Shephard wrote:

In a 40-page motion obtained by the Toronto Star, Khadr’s lawyers argue that testimony from Dr. Michael Welner was “unscientific” and “designed solely to inflame and mislead the jury.”

Lawyer Army Col. Jon Jackson and Air Force Maj. Matthew Schwartz also claim that prosecutors threatened to revoke Khadr’s plea deal if they challenged Welner’s credentials as an expert witness.

Army Col. Patrick Parrish, the judge presiding over Khadr’s case, allegedly quipped to the defense that “Dr. Welner would have been as likely to be accurate if he used an Ouija board,” according to the motion.

One small problem. No one in the court ever heard the presiding judge ever say that. So the defense suggested that Colonel Parrish, an extremely respected jurist with experience in sensitive  cases, would essentially make some off hand remark to the defense attorneys about Dr. Welner in the men’s room. It defames Col. Parrish as much as it does Welner. The defense team and Shephard simply threw them both under the bus.

Welner responded by calling the defense tactic “slimy and pathetic,” and noted “the longstanding defense strategy of false charges against the government, the US military, the prosecutors, and theater when the established procedure is unsuccessful.”  The Khadr case has been laden with shameless manipulation by the Khadr defense. That is evident in a defense team of American attorneys that lied about torture and defamed the United States, a defendant who clearly attempted to stage a claim of mistreatment while being videotaped for none other than the Red Cross, and using Lt. Col. Jackson’s unreported “medical condition” that enabled a plea deal in the case.

Shephard took it upon herself in the same story to refer to a defamation complaint Dr. Welner levied against her and the Toronto Star publishers. The only problem?  In her story, she referred to the complaint against “a Star journalist.” What Shephard and the Toronto Star editors shockingly did not disclose to Toronto Star readers: that defamation complaint was filed against none other than Shephard herself  for her October coverage of Welner’s testimony. What else could you expect from a writer of such compromised and lamentable credibility?

Shephard yesterday Tweeted a passage among her cabal of Khadr groupies from an Al-Arabiya send-up of the Shephard hit piece story suggesting “sources” among President Obama’s Administration “were unhappy” with Welner and “the Military Commission’s Convening Authority does not want to use him in Guantanamo again.”  That Tweet laid bare the bigger agenda.

The irony of this defamatory innuendo about “sources” is that it mirrors the defense clemency claim that the prosecution somehow had a pipeline to dictate to the Military Commission Convening Authority. Here, al-Arabiya claims to be communing with the same Convening Authority. The Pentagon could not possibly be that easily duped.

The Welner-bashing Al Arabiya article, and the Khadr devotees Tweeting its poisonous agenda touched on another irony from the defense motion. Namely, the false defense allegation that Welner’s lucid testimony literally “intimidated” the jury picked by Khadr’s trained professional jury consultants. Actually this reflected the intimidation of the community of terror apologists given the prospect of closer scrutiny by Dr. Welner in future proceedings at GITMO. Gitmo detainee supporters in the press such as al-Arabiya have launched a derogatory misinformation offensive against Welner, the most qualified forensic psychiatrist retained in mental health trials of alleged terrorists. The goal of dumbing down professional assessments at GITMO makes future cases more winnable to al-Qaeda and their useful idiots in the press and human rights community planning for the long haul. Welner presents a big problem to terrorists because he presents effective, well grounded professional testimony. Omar Khadr is, when all is said and done, the rock star of Gitmo. He apparently rocks Al-Arabiya’s world, too.

Is this an example of intimidation of our Military Justice system by foreign Shariah Islamic interests? Is this a prelude to what we can expect to happen in future military tribunals of detainees at GITMO? We have been critical of the government’s handling of al-Qaeda. We will watch closely to see whether the Convening Authority stands feeble in the face of this ludicrous indictment of its procedure, or sets limits with those who aim to make a mockery of this and future proceedings. Will the folly of civilian courts be echoed in the typically sober forum of military court? Will we see politically emasculated decision-making or the courage displayed in Col. Parrish’s handling of the fraudulent torture claims? Will we see a variety of the circus of Judge Ito or the sage of Judge Mukasey? With far more sensitive trials ahead, its time for the Commission to stand behind its well-vindicated procedure or hobble the process disastrously.

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