Added Guantanamo Hearing Deals With Pre-trial Publicity

Presiding Officer Marine Col. Robert S. Chester, an experienced military judge, ruled that public comments made by the prosecution did not damage the defense's case.

Muneer Ahmad, civilian defense attorney for Omar Ahmed Khadr, requested Jan. 11 that Chester prevent chief prosecutor Air Force Col. Morris Davis from making inflammatory comments in the media. In particular, Ahmad, a law professor at American University, objected to Davis referring to Khadr as a "terrorist" and saying he believed the 19-year-old Canadian is guilty of murder. Ahmad specifically asked Chester to compel Davis to retract his statements.

Ahmed argued that legal rules against inflammatory statements are not equally applicable to the defense as to the prosecution because prosecutors are not just responsible for winning a trial or putting someone in jail, but also for the fairness and the integrity of the entire process, while defense attorneys' sole responsibility is to their client. "Prosecutors enjoy a greater responsibility," Ahmad said.

Ahmad said the law recognizes that prosecutors have an advantage in terms of resources. An imbalance between manning of defense and prosecution teams has plagued the military commissions process since the first hearings in August 2004. The issue presented itself in hearings here this week in a 4-to-1 ratio of military attorneys working for the prosecution to those working for the defense.

The defense attorney also argued that Davis' comments not only could affect the case but also could harm his client's reputation. He said the presiding officer should take steps to protect against comments that create "heightened condemnation of the accused."

A Navy lieutenant on the prosecution team argued that prosecutors also have the right to protect the reputation of their client, in this case the government. He said Davis merely was countering years' worth of statements in the media from defense attorneys and from other parties, including human rights groups, who questioned the fairness of the proceedings. Military commissions ground rules prohibit media from identifying members of the prosecution teams beyond Davis, the chief prosecutor.

The lieutenant said Davis' comments regarding his belief that Khadr is guilty are reasonable for a prosecutor to make, particularly in light of strong rhetoric from the defense team. "It may be a hard blow, but it was not a foul blow," the lieutenant said.

In denying the request, Chester said his concern is the fairness of the military commission proceedings and that Davis' comments did not jeopardize that. He added that Davis is entitled to counter inflammatory statements made by Ahmad, including that the process is a "sham" and that the accused cannot get a full and fair trial.

He said he carefully considered arguments from both sides and that he decided Davis' comments did not rise to the level of damaging the defendant's case.

In a news conference a short while later, Ahmad expressed disappointment in the decision. "I think that we need to take very seriously the potential damage that's done to Omar by the making of negative comments about him," he said.

"I accept, obviously at this point, the presiding officer's decision, but I still believe that it's inappropriate for the prosecutors to be making known their opinions about his innocence or his guilt," he added.

In the same news conference, Davis countered that his comments were appropriate for a prosecutor and didn't influence the fairness of the trial. He explained that it's his job to be assured of a defendant's guilt before bringing charges and to convince the members of the panel of that guilt.

However, he added, the commissions system still is built on a presumption of innocence. "The system, the military commission process, the members that will be hearing the case, in essence the jury, ... will come in with a presumption of innocence, and that won't change until we present proof beyond a reasonable doubt that he's guilty," Davis said.

Khadr is due back in court the week of March 27, when attorneys for both sides will have the opportunity to present legal motions in the case.