William Keubler email on USA v. Khadr -- date redacted -- 1
To briefly reply:
1. Paragraphs 1 through 6 of the government response bear on the weight to be given the evidence, not its admissibility.
2. Sen. Graham's 2005 remarks dealt with the issue of whether detainees should have access to the federal courts through habeas corpus, not whether Congress intended military commissions under the MCA to exercise jurisdiction over children.
3. Though Sen. Graham appeared to refer to Mr. Khadr in the comments in paragraph 9, his remarks do not indicate that he was aware of Mr. Khadr's age at the time of his alleged offenses. Indeed, his reference to a "medic" shows that the Senator was not sufficiently informed as to actual allegations in the case to know that the government does not allege that SSgt Speer was acting as a medic at the time of the 2002 assault or that he otherwise enjoyed a protected status. Accordingly, Sen. Graham's 2005 remarks are of no relevance to the issue at hand.
4. What is relevant is Sen. Graham's unrehearsed, first-blush reaction to the prospect of the MCA's application to a minor in light of the government's position that Congress affirmatively intended the MCA to allow for the exercise of jurisdiction over "all unlawful enemy combatants, irrespective of their age." Sen. Graham being one of the principal authors of the legislation would not, if the governments' contention were true, have had the response that he did -- particularly if Sen. Graham was specifically aware of the particulars of this case in 2005, as the government contends. What Sen. Graham says in a press release issued after the government has apparently solicited a "clarification" of his remarks, and after Sen. Graham has had the potential consequences of his remarks explained to him by the prosecution, is of no significance.
5. On this latter point, the defense notes its concern at apparent efforts by the prosecution to manufacture evidence to be presented to this commission.