8-9-2010By Daphne Eviatar
Senior Associate, Law and Security
What hasn’t been argued today, though, is whether a 15-year-old like Khadr who was taking orders from his father, a known al Qaeda financier, ever really had a choice in the matter. What’s more, the judge still hasn’t ruled on whether the murder that he’s accused of actually constitutes a war crime, and therefore is properly being heard in this military commission. The judge suggested today that he won’t rule on that until after the trial is over, prompting objections from Khadr’s military defense lawyer that he needs to know what the judge thinks the law is in order to effectively present his client’s case. In the view of defense counsel and many international law experts, killing a member of enemy forces – in this case, a U.S. soldier – is not a violation of the laws of war. It’s what people in battle are trying to do.
The other disappointing part of today’s hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he’s found online.
Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn’t contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn’t alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann’s movie. So I don’t see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.
The judge has taken a break to deliberate over the pending legal motions. Hopefully by later this afternoon we’ll have some decisions – and a bit more clarity on what’s going to happen in this first military commission trial put on by the Obama administration.