Department of State Press Question/Answer Session about the Trial of Omar Khadr

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Remarks to...
Washington, DC
May 29, 2007
11:00 A.M. EDT

MODERATOR: I want to welcome everyone to the Foreign Press Center here in Washington as well as those of you participating in Toronto to this on-the-record briefing we're doing with John Bellinger who is the Legal Adviser to the State Department. He's here today to talk about the Omar Khadr trial in Guantanamo Bay, will make a brief statement and then we'll have an opportunity for questions both in Toronto as well as here in Washington. So without further ado, Mr. Bellinger.

MR. BELLINGER: Great, thank you. Welcome to you all in Toronto, nice to be with you and you all who are here. I've got a particularly short opening statement and then just happy to take questions. So we'll be very informal as -- and I've read a number of the press pieces that you've done so I think I have a sense of the issues that you're interested in.

As you know, Omar Khadr will be arraigned next Monday -- is scheduled to be arraigned next Monday, June 4th, before a judge of the military commission in Guantanamo. Just to relate the -- how we got to where we are and then what will happen next. Charges under the new Military Commission Act and rules were sworn against him by a prosecutor on April 4th of this year. You'll recall there were five charges brought against him, murder in particular for killing of a U.S. Special Forces soldier, attempting murder for converting explosives and planting landmines, conspiracy to commit murder, attack civilians, attack civilians objects, material support for terrorism basically by providing himself for training in al-Qaida training camps and spying, conducting surveillance against U.S. forces. Those charges were reviewed and then approved by the convening officer Susan Crawford on April 24th, which triggered the time clock of 60 days before he needed to be arraigned. So if -- under the schedule he will be arraigned on June 4th. He will appear at this point -- this is pretty much like a normal either federal court or military court arraignment. It's not the full military commission. Simply the presiding officer, the military judge will be there to read the charges against him, take his plea, confirm who his counsel are and then to set a motions schedule. So it's expected to be really quite short. There would not be normally motions at this arrangement.

The next thing that we would then expect to have happen would be motions where the defense would bring various objections that they may have about the jurisdiction of the court or anything else that they may have. There is a normal expected period of these sorts of motions so it's hard to tell how long that would be at this point and probably at the time of the arraignment a trial date would not be set. It will take some time to get through whatever motions there are, assuming that there are any for a trial date to be set.

As I understand it, the arraignment will be open for the press at Guantanamo to be able to see. You'll have to confirm that with the Office of the Military Commission. And I should preface a good deal of this by saying the details of this, of course, are really subject to the control of the Defense Department. So I will -- on a number of your specific questions, may have to refer you over to the Defense Department. But that's the general schedule.

So with that, I'm just going to stop and since the news here really is the schedule for the arraignment next week, actually I will -- the reason I keep saying it's scheduled for, just to be clear, his civilian lawyers have appealed his finding of being an enemy combatant by the CSRT, the Combatant Status Review Tribunal, which was held in 2004, have appealed that as they have a right to do under the Military Commissions Act to the D.C. Circuit. And as I understand it, as part of that, they have also asked for a stay of the military commissions. So if the D.C. Circuit were to intervene and grant that stay then it is possible that the arraignment would not take place next Monday, June 4th. So with that we'll take your questions.

MODERATOR: Okay, very good. Toronto, do you want to start with the first question?

QUESTION: Okay. Michelle Shephard with the Toronto Star. In terms of his representation, we understand that he has refused to meet with his American attorneys both military and civilian, and he wants to be represented by a Canadian. What are the rules governing foreign attorney consultants and what will happen in that event if that's what it is said before the presiding officer?

MR. BELLINGER: Right, thanks. On the facts, I simply can't confirm the facts because I don't specifically know them, but I have read those same stories as well. So in answer to your question, under the military commission rules every accused before a military commission is assigned military counsel. In this case, Mr. Khadr has two military counsel assigned to him. The reason that's important is that it's critical to ensure that someone who knows the military system is assigned so that they can zealously represent the individual. The military lawyers both in Mr. Khadr's case and in the case of Mr. Hicks and others, as I think the world can see, have been extremely zealously representing their clients, calling into questions the bases of the act, making various charges. So they have been very aggressive in representing their clients.

In addition, should a individual for whatever reason not want to be limited only to his military counsel, he has the right to hire -- at his own expense, should there be any expense -- and a number of lawyers have offered their services pro bono -- civilian counsel. And Mr. Khadr also has civilian counsel and they have been the ones who have been bringing the litigation, and there has been extensive litigation in U.S. courts involving Mr. Khadr over the last three years or so, so he has had very effective and extensive civilian representation in our courts.

And then finally, the rules also allow individuals to hire foreign consultants. The reason those are not their principal lawyers is really to ensure that the system is fair. And that in most cases it's going to be difficult for a foreign lawyer, and perhaps Canada is something more of an exception, but for a foreign lawyer to be extensively knowledgeable in the U.S. military system, so one also has to ensure that the person has the appropriate security clearances. So if you think of all of the individuals in Guantanamo come from various countries around the world: Yemen, Syria, Libya. Before we can simply allow them to hire foreign counsel to assist them, we have to go through a security clearance process to make sure that they really are who they say they are.

In this case, his Canadian consultants will essentially be able to do and provide as much advice and assistance as his assigned military counsel or his retained civilian counsel, but they are called consultants because they are not the lead attorneys of record.

MODERATOR: Very good. Do we have a question here in Washington? Please wait for the mike.

QUESTION: Can I just follow Michele's question there.


QUESTION: I realize that the law has changed. But in Hamdan's arraignment, I don't know whatever it was -- 18 months ago now. He said he didn't want to be represented by any lawyer, including his court-appointed lawyer. And the lawyer found himself in the difficult position of saying to the judge, "I can't represent a client who doesn't want to have me represent him." And the judge was pretty clear, he said, "You are representing him. That's an order." And it was clearly an order both from the bench and an order within the military chain of command. Is that a precedent for what we may see even though the law has changed?

MR. BELLINGER: As I understand it, an individual may represent themselves per say if they want to and I don't know what Mr. Khadr might plan to do. As I also understand it, he cannot essentially fire his assigned military counsel. Now, the assigned military counsel will not throw themselves in his way, but they continue to be his counsel. How he chooses to make use of them will be up to him and his counsel.

QUESTION: I realize this is straying into the future and you may not be able to do that. But is it -- would it be lawful under the new act for a foreign consultant to sit with the accused and provide him with advice on a contemporaneous basis as the proceeding is underway with the assigned military counsel in effect being a filter or a cipher?

MR. BELLINGER: I simply don't know the answer to that question. That's something we can get back to you on how the details will actually work. Overall though, the system is set up so that any accused, including Mr. Khadr, will have the most extensive and robust assistance that they can have. Again, the military counsel are people with decades of experience in defending military cases. They're used to a military system. Even though there are changes in the system, it still basically relies on the court-martial rules. So they are going to be the ones who really are going to be most effectively able, and that's why we set it up that way with assigned military counsel. But then civilian counsel and then the foreign consultants, so there will be an extremely effective defense team available for Mr. Khadr to make use of.

MODERATOR: We have one more question over here and then we'll go --

QUESTION: I just want to follow up on that.

MODERATOR: Can you say it to the mike, please.

QUESTION: I'm Alison Smith with CBC. Can foreign counsel speak to the court?

MR. BELLINGER: Again, I don't know the answer to that question. I can check and have to get back to you.


MODERATOR: Okay, let's go to Toronto.

QUESTION: Colin Freeze from the Globe and Mail. Just -- if we could jump ahead, I just want to talk about if there was a conviction and sentencing was -- a sentence was handed down, does the procedure allow for mitigating factors? I mean, in a Canadian context, we might consider age at the time of the crime. We might consider conditions of detention, you know, if somebody spends a lot of time pretrial in difficult conditions that might factor in the sentencing. But I'm wondering if the procedures in Cuba allows for any such consideration of such things.

MR. BELLINGER: Well, I think the judge will consider a variety of different factors. I think, as you say, it is premature to get into what the judge may consider down the pike. But in terms of figuring out the sentence, as you know, one, the death penalty's already been taken off the table. The charges though are extremely serious ones, including murder. And the -- on the other hand, I'm sure the judge will hear a variety of arguments from the lawyers and will take into account a variety of different factors.

QUESTION: And just as a follow-up, I mean, what happens if somebody is convicted -- what's the default? Is somebody convicted to a term to be served in Guantanamo Bay or does the onus then shift for agreement to be worked between the host -- between the U.S. Government and the country of origin to send them back, like Hicks?

MR. BELLINGER: No. If he were convicted and sentenced to time, then the expectation would be that he would serve his sentence in Guantanamo Bay unless some other facility in the United States is designated. But right now the expectation would be in Guantanamo. There is not a standard expectation that something would be worked out with any foreign governments. At this point, we have not had negotiations or communications with the Canadian Government about his serving time, if convicted, in Canada. So as you say, the default would be that he would serve any sentence either in Guantanamo or in a U.S. military facility.

MODERATOR: Thank you. We have a question here in Washington.

QUESTION: Hi. It's Sheldon Alberts with CanWest. I just wanted to ask you about the perceptions about the robustness of the defense. There were concerns about the actions of the chief prosecutor in relation to perceived threats he made against David Hicks' lawyer in terms of David Hicks' lawyer speaking out too forcefully against the commissions. I know there's been complaints by -- raised by Colby Vokey about some actions that were taken against his assistant for making complaints about Khadr's treatment. And I'm wondering if that doesn't cast a bit of a cloud over just how far these defense lawyers can go without stepping outside sort of the bounds of their own career and putting themselves in jeopardy.

MR. BELLINGER: Well, I would say it certainly does not seem to have deterred so far. I mean, from what you have seen they have been I think very vigorously and robustly defending their clients not only in the military commission's setting but in the realm of public opinion. They have been publicly stating their concerns about the process, vigorously representing their clients. They do not seem to be shrinking violets in the statements that they have been making.

I think it would be very difficult for anybody to say that the assigned military lawyers for either David Hicks or for Omar Khadr have not been anything but extremely vigorous in their defense, including making complaints about the system as a whole. And that's before you even get to his civilian counsel who have been bringing challenges -- numerous challenged -- involving Khadr's detention in our civilian court. So I think if you look at this overall, and of course we understand that concerns have been raised about the military commission, but if you look at this overall, you know, for someone like Khadr or someone like Hamdan, who was bin Ladin's bodyguard, to essentially have this amount of vigorous defense, despite the fact that they are accused of being members of al-Qaida and engaged in terrorist acts, the fact that bin Laden's bodyguard could bring his case all the way up to the United States Supreme Court and win, I think it's very hard for anyone to suggest that these individuals are not receiving an extraordinarily vigorous defense.

MODERATOR: Is there a follow-up question in Toronto?

QUESTION: Hi. I'm Caitlin Owen with Macleans. I'm just wondering why it took five years for Khadr's Canadian defense lawyers to go visit him.

MR. BELLINGER: I don't know at what point he actually had consultants who were interested in his case, so at what point the beginning of the process was. So I can't say -- maybe you can -- that they have actually been trying for all five years if that's the implication of your question. It's not my understanding that they have been trying for that long a period of time. But why does it take any time at all? The answer it takes quite a bit of time in any cases, and probably Canada is the easiest. But in any cases for the security clearances and the agreements regarding the security clearances and enforcement about any breeches of security to be worked out, these things just simply take quite a long time to work out.

MODERATOR: A question here in Washington.

MR. BELLINGER: And let me just say one last thing on this. You know, the implication of the questions, and they're not just from you, is that somehow a foreign counsel is going to bring a fairer or a more vigorous defense. And while we welcome and have set up a system where there can be foreign consultants and who can be extremely involved in the defense, again, the individuals -- the military counsel who understand the military system, who have practiced the military system, who have done court-martial trials, really I think are going to be in the best position to advise and represent someone. But it's a full complement of lawyers. As you can see, Mr. Khadr has got quite a large number of lawyers to represent him and this is someone who is accused of very serious crimes, including throwing a hand grenade that killed a U.S. soldier.

QUESTION: Hi, Beth Gorham from the Canadian Press. Can you go over again what you expect to happen on Monday, if it is on Monday and also the timeline of this, looking ahead a little bit, how long the motions period would take, the trial would take and when you expect this to be completed?

MR. BELLINGER: The first part of the question I can answer; the second part of the question is it's always harder to tell. On Monday, he will be arraigned, which essentially means the charges will be read again him by the judge so that he will hear and understand the charges. He will be asked for his plea. The counsel of record will be established for him, which I think in his case will be at least for the record will be the assigned military counsel, his retained civilian counsel and then the fact that he also has his foreign consultants. None of us can do anything but speculate what will happen if he decides on the spot to make -- challenge the counsel that have been assigned to him or that he has otherwise retained. But that is the way the system will work.

And then if any of the lawyers and -- on the spot -- say we expect to bring motions, then the judge will assign -- set a schedule to hear those motions. And those are the sort of things that you can't always tell in advance. It may be that they -- he will set a date to begin to hear the motions. So the motions do not necessarily have to be brought at the time of the arraignment. The judge may simply say in several weeks time on a specific date I will hear any motions that the defense has. Or the defense may say we specifically have got some motions that we would like to bring and the judge will set a date. And that's where I can't speculate how much time it will be before that first date is set or how long it would take. Some of these can be quite complex and so it's then hard to tell when a trial date would be and how long the trial would take. That's just quite difficult to how long that could take.

QUESTION: Does he actually have to be in the courtroom? Could he refuse to go?

MR. BELLINGER: That's also a good question. I don't know the answer to that. I think -- I can check. I think the answer is that he cannot be forced to come, but I will have to check on that.

You've given me a number of questions that I'm going to have to get back to you on. We'll have to figure out a way to do it.

MODERATOR: Okay. Let's get a question from Toronto first, and then we can come back to Washington.

QUESTION: What is the message that you've had from the Canadian Government regarding Khadr's case? And more specifically have there been any concerns expressed about the legality of the trial or is Canada supportive of the commission process?

MR. BELLINGER: Well, I don't want to get publicly into diplomatic discussions between the two governments. But I will say in general terms I think Canada, like Australia and like other countries, recognize that individuals like David Hicks, like Omar Khadr who are alleged to have committed serious crimes, acts of terrorism in the course of an armed conflict that it is appropriate for them to be held accountable for those crimes and that the U.S. military commission system is an appropriate way to do that.

QUESTION: And I noticed that you didn't mention Britain. Is there -- can you say how their reaction was different?

MR. BELLINGER: The British Attorney General, as you know, reviewed the military commission rules as they were originally set up and was not comfortable with the original rules and recommended that the British Government ask for the return of their detainees. Now it's important to understand that as a result of the Hamdan decision last year that very, very substantial changes were made to the military commissions including, I think correcting all of the concerns that had been raised by the British Government and I will raise what I think were the two lead concerns. One, that the accused would not have the right to be present to hear all of the evidence against him. A system as you know had previously been set up that would allow classified information to be introduced. And while his counsel could hear it and rebut it, he would not be able to be present. That was changed. Now the accused has the absolute right to be present to hear all of the evidence against him. Also concerns had been raised that the appeals system was only through the military system. There were multiple levels of appeal but they were all through the military system. Now there is an appeal right into our D.C. Circuit and all the way up to the Supreme Court. So I think a number of those concerns that other countries, critics inside the United States had raised about the military commissions as originally established have now been changed and that the system has been very substantially revised as a result of the Supreme Court's decision in Hamdan, which again, I think demonstrates that while many people are uncomfortable about the amount of time that it has taken to get the trials going, the fact is it demonstrates, one, the difficulty in trying terrorist suspects who are captured outside one's country and where the normal court-martial rules or criminal law rules are very difficult to apply. And it shows essentially that we're working very hard to come up with a system that works.

In this case, these military commissions obviously went all the way up to our Supreme Court.

MODERATOR: Was there a follow-up question.


MODERATOR: I want to make sure everyone who hasn't asked yet has gotten a chance.

QUESTION: Well, the question's been asked for me so.

MODERATOR: Okay, please go ahead.

QUESTION: Just on the issue of the foreign attorney consultants, again for clarification. I know that Khadr's civilian lawyers and perhaps even his military lawyers have said that they would prefer that their client be represented by Canadian counsel. So it is an issue -- I mean, what's the issue? Is the issue of protecting the defendant against making a bad decision in terms of hiring someone from out of the country who doesn't know the system or is it the fact that he doesn't have the right to have a foreign attorney consultant, that it's too complicated to have a process -- you know, out of country lawyers. What's the nub of why the foreign attorney consultant can't be the lead attorney?

MR. BELLINGER: It really is to ensure that someone is absolutely fairly and adequately represented. I mean, we have bent over backwards to provide the most robust legal representation that any accused can have. But it would have been difficult for the United States essentially to judge the quality of any foreign attorney and make judgments on that. If an individual said I want to have a Saudi or Yemeni or Kuwaiti or Egyptian attorney, it would have been very difficult for the United States to then try to determine was that person well-qualified to represent someone before a military commission. Did they understand the court-martial rules? Did they understand the rules of evidence and procedure?

The fairest way to do it in the view of the Defense Department was to assign a military lawyer to every accused so that they would be guaranteed of having someone who was experienced and understood the system. Then they could add layers on top of that to allow them to -- and that's exactly why we did it. We understood that people might be uncomfortable having only an assigned military attorney, so they could then hire civilian attorneys and then foreign consultants. But it is layer upon layer of attorney assistance. But in the first instance, to ensure that someone is rigorously and zealously represented, which is what we want to ensure. There are military lawyers who are assigned to them and these are people, again, who have got experience in the military system and who are chosen -- being asked whether they will be comfortable to do this. I mean, these people are not chosen to be military commission and defense counsel in that pool of people if they -- even though they might be able to represent a U.S. soldier -- if they would not feel comfortable doing this.

And again, I think it also gets back to the proof is in the pudding. We see how vigorously these military lawyers have been out -- David Hicks' lawyer traveling all the way to Australia -- and out publicly making their cases.

MODERATOR: Were there any follow-ups in Toronto?

QUESTION: Can I just ask -- I realize this isn't your expertise necessarily, but when the Canadian lawyers went last week they left aside legalities. I think their published remarks were mostly about the conditions; that they had been struck by what they called conditions designed to suffocate the human spirit or so on. I mean, I think if you asked the Pentagon they would say after suicides and attacks on guards last year they had to put in more stringent regimes. But I think the upshot is at Camp 6 it does amount to maybe 23 hours in a cell and maybe an hour outside of it. Is this regime humane and incompliance with international norms?

MR. BELLINGER: Here again you see the lawyers zealously representing their clients. As I understand it from the Defense Department, the statements made by Mr. Khadr's Canadian consultants are simply incorrect. I checked with the Defense Department this morning and they tell me that it is simply inaccurate to say that Mr. Khadr's has not had regular exercise or has not seen the light of day. He has had regular exercise. He is regularly outside and has seen the light of day, so those allegations are just simply wrong. The conditions overall in Guantanamo, yes, we believe are consistent not only with international law but are very similar to and, in fact, are based on the rules and conditions in our maximum security prisons. A number of foreign delegations have come down recently and have issued reports -- to which I would call your attention and I mention a couple of them specifically -- the President of the Belgian Senate, Madame Anne-Marie Lizin, in her role as the special rapporteur of the OSCE on Guantanamo came and issued a report saying it's just -- conditions seem to be very similar to a maximum security prison and in fact better than in Belgian jails. Similarly the British Foreign Affairs Committee of the UK House of Commons came down, Labor, Conservatives, Liberals to visit, reached essentially the same conclusions, simply that whatever allegations may have occurred in the past, Guantanamo now is simply a maximum security prison with conditions that are in compliance with international norms.

MODERATOR: Follow up here in Washington.

QUESTION: If these statements are inaccurate, can you speak to the conditions or of physical and mental condition of Omar Khadr? Can you tell us what he's been like, what his day is like?

MR. BELLINGER: I don't have information on that. You'd have to really check in with the Defense Department to get more of the details. But you know, again, people who are accused of serious crimes and who are detained, I mean, this is a fact of life, that it is not a comfortable situation for anybody who has been accused of a crime and has to be detained; that they have a comfortable and happy lifestyle. In maximum security prisons in the United States and I'm sure in Canada, this is a -- this is not necessarily a comfortable environment. But the conditions in Guantanamo are very much modeled on conditions in federal prisons in the United States and they have outstanding medical care. It's the same medical care that is provided to our own soldiers. There is reading material, there is opportunities for exercise. These are are conditions that certainly are humane and in compliance with international standards. Whether Mr. Khadr is happy about it is a different situation. On the other hand, Mr. Khadr made certain choices in his life and, as you know, is accused of attacking U.S. forces and killing one of our soldiers.

MODERATOR: Okay, let's go here for the next question.

QUESTION: Every tribunal is different and I realize it's very difficult to make comparisons sort of across decades. But people accused in the international corridor, people accused at Nuremberg who were acquitted, were set free. Under the new Military Commissions law which grants some Geneva three status -- although it's not exactly clear what that is yet -- to civilians and non-legal combatants perhaps. There's an interesting Catch-22 here, which is were an individual like Khadr acquitted, he might be deemed an enemy combatant or otherwise, and held for the duration, which creates the interesting legal situation and I'm asking you now as a legal officer is it where it might actually be advantageous to plead guilty and get a fixed term than be acquitted and get an indefinite term.

MR. BELLINGER: You're right that at least in theory the individuals in Guantanamo are not being held in order that they may be prosecuted. They are being held because they were combatants and we believe continued to be held because they are combatants and that they would return to acts of combat. That's why they are being held, and that we think as a matter of international law, one can hold them until the end of that conflict. That said, we want to try as many of them who have actually committed crimes as we can. It's theoretically possible that if he were acquitted that he could continue to be held, but I think it is premature to speculate that that would happen. So I think people -- the accused have got to make up their own minds as to whether they want to engage in plea negotiations. That is -- the system is while it allows for that, it is not set up in order to do that. We would like to be able to try these individuals so that the world can see the crimes that they have committed and that there can be a judicial system that will judge them for the crimes that they have committed. It's up to them. In other words, it is not intended to try to elicit pleas from people, but of course as in any system, an individual in consultation with their lawyers are free to do that as did Mr. Hicks.

QUESTION: But you will not -- the Government of the United States will not give the undertaking that an individual acquitted under the military commissions will be freed.

MR. BELLINGER: The -- as a matter of law, we believe that we may continue to hold someone, even if they are acquitted, as a matter of law. Whether we would continue to do that, if someone were acquitted, it really is I think hypothetical to see whether we would do that. Certainly, we acknowledge that if someone is acquitted after trial, that that raises a certain expectation that someone might be released. On the other hand, these individuals are individuals who we believe are -- have engaged in acts of combatancy and that's why they're being held. And so we would have to look at that if an individual were acquitted.

QUESTION: I really do want to pursue it. It raises an expectation, not just on the part of the accused, but you've spoken publicly about the sort of broader public opinion issue that your government has on this. I don't think it would be unfair to characterize the expectation that an acquitted individual would be released, would be an unfair expectation. But you're not willing to say, it's a justified expectation, that these individuals -- and not just Khadr -- any individual acquitted under the system will be released.

MR. BELLINGER: We have -- as I say, we have the right to continue to hold someone. It's premature to say what decision we might make if someone were actually acquitted. But again, we are holding people not because we plan to charge them; we are holding them because we think that they were engaged in combat against us.

QUESTION: Thank you.

MODERATOR: Okay. Let's go to Toronto real quick and then we'll have some more time for questions here in Washington.

QUESTION: Just to bring up Omar Khadr's age, last year we asked -- I think it was Colonel Mo Davis about this and whether there were any considerations given to it and I think he answered to something to the like of -- well, he's 19 now. So -- but surely this wasn't the intention to hold detainees until -- that are minors until they come of age. So I guess I just want to know what were the considerations that were given to his age, with perhaps the exception of the fact that the death penalty was taken off the table, what other considerations were given to the fact that he was detained when he was 15?

MR. BELLINGER: Thank you. No, it's an important question and there are several aspects here: one, can he be detained and; two, can he be tried because of his age? Clearly, we think that the laws of war contemplate holding individuals who are juveniles. The first and second additional protocols to the Geneva Conventions to which the United States is not actually a party, but which we acknowledge portions, represent customary international law say two things on this subject.

One, they say that if a child is detained as part of an armed conflict, they should be separated from adults. So one, it's clear that the laws of war contemplate that juveniles may be detained. It does not define who is a child. We have -- and consistent with our international agreements -- treat individuals as children detained in armed conflict as individuals under 16. So for the few individuals who we took to Guantanamo who were subsequently determined -- and it was difficult to tell their ages, they didn't have their birth certificates with them -- were under 16. There were I think three individuals who were put in a completely separate camp -- Camp Iguana. Omar Khadr by the time he arrived in Guantanamo was over 16, so we did not treat him as a child. But one, we think he can be -- it's clear that he may be detained under international law and did not have to be separated because he was 16.

Second, can he be tried? The Additional Protocol also says that a child -- anyone under 18 -- let's see, I have to think back on this -- may not be subject to the death penalty and we have taken the death penalty off the table in his case. But it clearly contemplates therefore that someone under 18 may actually be tried; it just simply says that the death penalty must be taken off the table. So certainly we're aware of his status as someone who was captured when they were 15, is -- was 16 when they arrived in Guantanamo, but we think we are acting clearly consistently with international law in both continuing to detain him, not separating him from the rest of the population and in trying him for his offenses.

Clearly, he was young when he committed these offenses. That is unfortunate. I think all of us wish that none of these things had ever happened. It is unfortunate for him. On the other hand, he did make certain choices. There are youth in all of our countries, both in the United States and in Canada, who when they commit crimes need to be held accountable for those crimes. He killed an American soldier who now has a wife and children who are growing up without a father. He has maimed another soldier who's now nearly blinded. He engaged in acts of murder, attempted murder, conspiracy to commit acts of terrorism and should be held accountable for those crimes.

QUESTION: Just one follow-up question to that. I understand when he was first detained in Bagram, he wasn't separated from the other detainees at that point and he would have been 15.

MR. BELLINGER: I don't know the answer to that. By the time he actually -- you know -- I'm sorry -- an initial holding, it's very difficult to find out what people's ages are. And by the time people were brought to Guantanamo for example, the other individuals who were put in Camp Iguana, it was subsequently determined what their ages are and they were put in separate facilities.

QUESTION: I'm sorry. Just one last follow-up question, were there any comparisons drawn between his case and the laws governing child soldiers in conflicts?

MR. BELLINGER: Certainly we have looked at that as well. The laws governing child soldiers have to do with one's recruiting and use in combat of one's own soldiers. They do not say anything about how you treat other people's soldiers if they are captured in armed combat. And the laws of war, the additional protocols, as I say, specifically contemplate, that juveniles may be detained and may be tried for their crimes.

MODERATOR: Okay, I think you were next.

QUESTION: Khadr's military lawyer has been asking for a long time, several months, for an independent psychological testing of him to see if he is even able to stand trial. Under the military commission rules, is he entitled to this, or is it something that, you know, is -- there's no rule for? Can it -- will he get it? Is he entitled to it?

MR. BELLINGER: I don't know the answer to that question or the military commission rules. Certainly, in Guantanamo generally, as part of the medical care that is available to all the detainees, they have access to psychologists, and I do not know whether Mr. Khadr has taken advantage of that or not. I'd have to get back to you on the right to insist on a psychological assessment and part of the military commissions.

MODERATOR: I think we have one more question over here in Washington.

QUESTION: You mentioned the process that's going forward in the D.C. courts by civilian lawyers. Can these two processes go forward at the same time or at what point is -- does the military commission have to say the D.C. court has to make a decision before we can proceed any further?

MR. BELLINGER: They can go forward. The -- unless the federal court here were to stop the military commission proceedings. But the way the systems are set up, they can legally go forward. So, the civilian lawyers are challenging his determination to be a enemy combatant by his combatant status review tribunal. The -- under the Military Commission Act, every individual in Guantanamo has a right to appeal their case in to federal court. I think you probably understand the rules better, but much of the rest the world does not, because you see these stories that say that people are being held in Guantanamo without access to federal court. And that's just simply incorrect; it's just wrong. Every individual in Guantanamo has the right to appeal their determination of being an enemy combatant into federal court, and that's what Mr. Khadr is doing right now.

As I understand it, the legal argument is, in addition to challenging the determination that he's an enemy combatant, they have asked for stay of the military commission proceedings on the theory that only individuals who are subject to -- who are enemy combatants are subject to military commissions. So, if he were not determined to be an enemy combatant, then he could not be tried by a military commission. So, if the D.C. Circuit were to either accept that argument or were to say that they wanted to wait to hear the case, then they could legally stay the proceedings, or at least that is the argument that is being made. I am not judging the merits of it, but that is the argument that is being made by his lawyers.

QUESTION: But could it come too late?

MR. BELLINGER: The -- well, at this point -- well, if it's not stayed and the military commissions are proceeding, I suppose that could come too late. But on the other hand, it's going to be a long process in the military commissions. He's got -- the arraignment is the first thing, then we have the motions, then there will be the trial. So, I think there will be -- the two processes will be proceeding in parallel for some time.

MODERATOR: Okay, I think we're running out of time. We have time for one more in Toronto and then one more back here in Washington.

QUESTION: Go ahead.

QUESTION: Sorry, I think -- I just want to ask, what happened in that battle five years ago rightly be considered murder, in your opinion? I mean, obviously that's the position your government's taking, but -- and I think you can be enormously sympathetic to Christopher Speer and his widow and the maimed soldier, but my understanding of what happened on that day is that a compound was raided by -- you know, a firefight broke out; it was a horrible battle for both sides, and in the mop-up operation, that's when -- when all the other militants are killed, that's when Omar Khadr throws a grenade, leading to the death of Christopher Speer. I mean -- in other contexts, it may appear to be -- this is what happens in war, but the biggest charge is murder. I'm just wondering if you could explain why that's -- why this is being pursued as a murder case.

MR. BELLINGER: Yeah. No, it's an excellent question, and it's why it's important to have these video conferences and have to discuss these things, because you're right. In a normal war, where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it's not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they are -- have already surrendered.

In this case though, the members of the al-Qaida and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat. Any combat that they were engaged in was illegal. And so, as I say, while they may have thought that they were defending themselves, as they no doubt thought they were against someone who was shooting them, nonetheless, the only people who were in the right were U.S. and coalition forces because we were acting pursuant to a UN resolution in an act of self-defense against the Taliban and al-Qaida. So simply that we were engaged in a conflict against them does not mean that any military action that they took was therefore lawful. So therefore, the action that they would take against us that results in a death of our forces would be illegal and would be a act of murder.

MODERATOR: Okay, we have time for --

QUESTION: Okay, and I think -- well, just a follow-up.

MODERATOR: Yeah, please. Quickly.

QUESTION: I mean, you've established the international context. I'm just thinking in the context of that battle, did -- I mean, you keep repeating Omar Khadr made decisions. I mean, did he have a choice to take part in that battle? Did he -- you know, I mean, in the moment he threw a grenade, was that self-defense or was that an act of an illegal combatant?

MR. BELLINGER: He could've surrendered at that point. And he had instead -- and I think there will be eye witnesses that will be available to describe this -- that's the prosecution plans to put on eye witnesses -- instead, fought and threw grenades. And so this -- since he would not have been a lawful combatant engaged in lawful combat in which any actions would be immunized; instead, his acts of combatants would be unlawful and therefore he can be charged for violations of the laws of war. And that's -- that is as a matter of international law.

MODERATOR: Okay. One final question.

QUESTION: Back to the very mechanical. On Monday -- I think it's Monday, maybe Tuesday -- do we expect a voire dire as well as the arraignment pleas?

MR. BELLINGER: With the jury? I can check on that. The only person who will be there at the arraignment will be the presiding officer, the military officer.

QUESTION: No, I mean, voire dire of the -- a challenge to the --

MR. BELLINGER: Well, voire dire would be for selection, for the members of the panel.

QUESTION: I've got the wrong term then.

MR. BELLINGER: Yeah, okay.

QUESTION: When we were there last time --


QUESTION: -- until the process stopped, the background and suitability of the presiding officer was to be challenged by the defense attorneys.


QUESTION: Maybe it's the wrong term.

MR. BELLINGER: I understand what you're saying. I expect that those would be the sorts of motions that would be raised, or certainly considered. I don't know whether they would be --

QUESTION: But these would be notices. We don't expect them to be dealt with.

MR. BELLINGER: To be dealt with then. It may be that the defense could raise them either then or later, but these are the exactly the sorts of jurisdictional preliminary legal issues that would be dealt with in what we can expect would be a fairly lengthy motions litigation.

QUESTION: So, in terms of --

MR. BELLINGER: Yes, yes.

QUESTION: In terms of Monday, we should have, unless something goes awry, it would reasonable to expect a reading of the charges, an entering of plea, and the submission by the defense and possibly the prosecution of notices, of motions to be heard?

MR. BELLINGER: They may not even bring the motions at that point. They could bring some of the motions, I think it's probably more likely. But these are the sorts of things that are really up to the defense to bring, to simply say, "We will have some motions." And the judge will say, "Fine, we will hear them on June 15th."

QUESTION: Thank you.

MODERATOR: Okay, I think we're virtually out of time with this program. I want to thank everyone up there in Toronto for participating, and thank all of you as well for coming. And thank you, Mr. Bellinger, for participating.

MR. BELLINGER: Good, my pleasure. Nice to see you all in Toronto.

QUESTION: Thank you, Mr. Bellinger.