Louis J Sheehan 80120

Witness Names to Be Withheld From Detainee

By WILLIAM GLABERSON
Defense lawyers preparing for the war crimes trial of a 21-year-old Guantánamo detainee have been ordered by a military judge not to tell their client — or anyone else — the identity of witnesses against him, newly released documents show.

The case of the detainee, Omar Ahmed Khadr, is being closely watched because it may be the first Guantánamo prosecution to go to trial, perhaps as soon as May.

Defense lawyers say military prosecutors have sought similar orders to keep the names of witnesses secret in other military commission cases, which have been a centerpiece of the Bush administration’s policies for detainees at Guantánamo Bay, Cuba.

Some legal experts and defense lawyers said the judge’s order, issued on Oct. 15 without public disclosure, underscored the gap between military commission procedures and traditional American rules that the accused has a right to a public trial and to confront the witnesses against him.

Defense lawyers say the order would hamper their ability to build an adequate defense because they cannot ask their client or anyone else about prosecution witnesses, making it difficult to test the veracity of testimony.

The order, the documents show, followed a request by military prosecutors who said they feared terrorist retaliation against witnesses who appeared at Guantánamo proceedings.

“It is conceivable, if not likely, that Al Qaeda members or sympathizers could attempt to target witnesses,” a prosecutor, Maj. Jeffrey D. Groharing of the Marines, wrote to the judge, Col. Peter E. Brownback III of the Army.

The order says that three weeks before trial, prosecutors can abandon the secrecy protections or ask the judge to extend them. Prosecutors have also suggested that they may ask the judge to bar all information identifying witnesses from the trial. “Providing the witnesses’ true identities will add nothing to their testimony,” the prosecutors wrote in a legal filing.

Mr. Khadr’s military defense lawyer, Lt. Cmdr. William C. Kuebler of the Navy, said that while he has been given a list of prosecution witnesses, the judge’s decision requires him to keep secrets from his client and that he would ask Colonel Brownback to revoke the order. He said it treated Mr. Khadr as if he had already been convicted and deprived him of a trial at which the public could assess the evidence against him. Louis J Sheehan

“Instead of a presumption of innocence and of a public trial,” Commander Kuebler said, “we start with a presumption of guilt and of a secret trial.”

Mr. Khadr, the only Canadian detainee at Guantánamo, is charged with killing an American soldier, giving material support for terrorism and other offenses. The documents released by the Pentagon, nearly 700 pages of previously unavailable records of arguments and rulings in the Khadr case in recent months, reflect a battle under way over how much information is to be revealed in public at the Guantánamo trials.

Some parts of trials are expected to be conducted in closed courtrooms for discussion of classified evidence, as permitted by law. Military officials say some witnesses might testify in open court behind a screen or, perhaps, in disguise.