The Victims

Yesterday was an emotional day of testimony from widow Tabitha Speer and Omar Khadr. As a reminder, on Monday, Khadr pled guilty as part of a plea agreement to all of the charges against him, including throwing a grenade that killed Sgt. Christopher Speer eight years ago. We are now in the sentencing phase of the case.

In eloquent testimony, Sgt. Speer's widow, Tabitha, testified about the impact of her husband's death on their 11-year-old daughter, Taryn, and 8-year-old son, Tanner, who was so young at the time of Sgt. Speer's death in Afghanistan that he does not remember his father. Tabitha read to the court letters from her children to Khadr, and showed photos of Sgt. Speer with their children.

Mrs. Speer said of Khadr, "Everyone wants to talk about how he's the victim, he's the child. I don't see that. The victims, the children, are my children."

Mrs. Speer's emotionally affecting testimony drove home again the tragedy of her husband's death in combat. Had this case been brought in federal court, where the legitimacy of the system is not in question, it would have been resolved long ago and Sgt. Speer's family would have had some measure of closure. (More than 1,200 U.S. service members have been killed in Afghanistan since 2001, but Sgt. Speer's killing is the only one to be prosecuted as a war crime in a military commission proceeding. Because battlefield killing is not a violation of the laws of war, an alleged murder would usually be handled in domestic criminal courts.) And Omar Khadr, who was just 15 when he was captured by U.S. forces, would not have languished in detention for eight long years awaiting trial.

Yesterday, Mrs. Speer's moving testimony understandably captured the headlines. What seems to be missing from news coverage is a critically important — and likely unconstitutional — ruling by the military judge, Col. Patrick Parrish. Col. Parrish ruled that no evidence about Khadr's abuse in U.S. custody could be put before the jury to consider in sentencing.

This ruling is deeply problematic on any number of grounds. In any U.S. sentencing proceeding — whether in federal, state or military court, and regardless of whether a judge or jury decided the sentence — it would likely be a violation of the Eighth and 14th Amendments for evidence of harsh pre-trial detention conditions and abuse in custody not to be a mitigating factor in sentencing. Federal sentencing law also unequivocally states that there should be no limitation placed on background information about a defendant. Under both federal procedure and the rules governing regular military courts-martial, evidentiary standards are relaxed during the sentencing phase of a case. It is virtually inconceivable that, in any forum other than these military commissions, a judge would prohibit evidence of coercion and abuse — especially of a juvenile, as Khadr was — as a mitigating factor. (And indeed, a defense lawyer who failed to raise harsh conditions or mistreatment as mitigation of sentence would risk a strong claim of ineffective assistance of counsel, which is a violation of the Sixth Amendment.)

Apparently disregarding established law and procedure, in the military commissions, Col. Parrish seems to be able to make up his own rules.

The judge therefore ruled that the jury cannot see sworn pre-trial testimony in this case from an Army medic at Bagram who saw Khadr hooded and chained in a cagelike cell with his arms suspended from a metal grate. At the time, Khadr was 16 years old and still recovering from two gunshot wounds in his shoulder and back.

The judge also ruled that the jury cannot see previous testimony from Joshua Claus, identified only as "Interrogator One" in the military commissions, who told Khadr a fictitious story about a young Afghan sent to an American prison, where he was gang-raped and possibly killed by "a bunch of big black guys and big Nazis," because he didn't cooperate with interrogators. Claus was Khadr's primary interrogator at Bagram, and was later court-martialed for detainee abuse leading to the death of a detainee.

The jury will never hear testimony that Khadr was taken to Bagram near death and interrogated two weeks later while the 15-year-old was sedated and handcuffed to a stretcher. Nor will the jury hear about how during Khadr's subsequent detention at Guantánamo, he was subjected to the "frequent flyer" sleep deprivation program and says he was used as a human mop after he was forced to urinate on himself.

Yesterday's indefensible ruling is emblematic of an untested legal process where a judge can make up the rules, to erase evidence and allegations of abuse from the record before a jury.

(Cross-posted to Huffington Post and Daily Kos.)