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Khadr's lawyers question star witness testimony

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Lawyers for Canadian war criminal Omar Khadr claimed they were duped into not challenging or objecting to the testimony of the Pentagon’s highly controversial star witness during Mr. Khadr’s trial in Guantanamo last year.

The defense lawyers, Lt. Col Jon Jackson and Maj. Matthew Schwartz, filed a clemency request on Monday seeking a reduction of Mr. Khadr’s eight-year sentence to four years. The request alleges the prosecuting attorneys misled the defense into believing the government would withdraw from the plea deal if the defense challenged the credibility of Dr. Michael Welner, a psychiatrists called to testify on the “future dangerousness” of Khadr.

In fact, sources say, the Convening Authority, the government’s chief officer for Military Commissions, had never said the government would withdraw from the deal.

During his testimony, Dr. Welner described Khadr as “angry,” “dangerous,” “devout” and “not westernized.”

Dr. Welner, who was paid $400 an hour for his work and who met Khadr for a total of eight hours, concluded that Mr. Khadr presents “a high risk of dangerousness as a radical jihadist” after “marinating” in extremist ideology while detained in Guantanamo. “He murdered. He has been part of al Qaeda. And we're still at war.”

Dr. Welner was testifying as an expert witness during the sentencing phase of Mr. Khadr’s trial. Mr. Khadr had pled guilty last year to the killing of a US soldier in Afghanistan in 2002, when he was 15.

In a copy of the clemency request obtained by Al Arabiya, the defense, relying on their own expert psychiatrist, claims that Mr. Welner’s methods were “unscientific” and were used to intimidate the sentencing panel, and that his opinion regarding the risk of Mr. Khadr’s recidivism was “designed to inflame and mislead the jury,” and that Dr. Welner has “no representative statistics” on which to make his sweeping conclusions about Mr. Khadr’s particular status: “Dr. Welner's sample size is Omar Khadr.”

In more colorful parts of the request, the defense states “even the military judge, Colonel Parrish, stated in feedback to the defense following the trial that Dr. Welner would have been as likely to be accurate if he used a Ouija board.”

In a written response to Al Arabiya, Dr. Welner said the defense’s request was “pathetic fiction.”

Chief Guantanamo prosecutor Capt. John Murphy denied misleading the defense: “We dispute the defense’s allegations and have filed a response with the Convening Authority on the clemency petition,” he wrote in a statement to Al Arabiya.

The request itself deals with esoteric legal matters; much is based on he-said-she-said arguments about conversations between lawyers. Moreover, legal experts say the defense could have used other maneuvers to challenge Dr. Welner if they wished. In fact, the defense did question Dr. Welner’s sources during the their cross examination.

But the substance of the arguments presented in the clemency request, and the subsequent response by Dr. Welner, underscore the bigger, trickier issue of trying to determine future recidivism within the Guantanamo detainee population. The newness of the field also presents questions regarding future Guantanamo military trails set to resume soon.

Dr. Welner, in his response to the clemency request, stated that in contemplating future dangerousness “I encountered.... an area where no systematic guidelines are chronicled and no actuarial measures are available.”

Sources tell Al Arabiya that members of the Obama administration were unhappy with Welner's controversial testimony, and that the Convening Authority does not want Dr. Welner to testify in any future Guantanamo cases.

In some of the more contested and highly publicized portions of his testimony Dr. Welner said he partially depended on the work of Nicolai Sennels, a Danish psychologist who studied criminal Muslim youth in the Netherlands, to come to his conclusions about the likelihood of Mr. Khadr becoming a repeat offender.

Mr. Sennels is skeptical about the ability of former criminal or terrorist Muslims to reform. Among his claims is that the Quran is an “evil book” and that “massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool.” Mr. Sennels also calls for a halt of “Muslim immigration” to Europe and says that Muslim immigrants should be encouraged to return back to their home countries.

Dr. Welner, when presented with some of these statements during the trial, said that he still respects Mr. Sennels’s work, though he does not agree with all of his views. As part of a response to Al Arabiya Dr. Welner wrote it is “well-studied and established that inbreeding occurs more frequently in numerous Muslim societies than it does in the United States or Canada. But that is irrelevant to Khadr and to my analysis.”

According to the plea deal, Mr. Khadr, now 24, will return to Canada this year to serve the rest of his eight-year sentence. Legal experts believe he will be released shortly after being repatriated.

(Muna Shikaki is a correspondent for Al Arabiya in the Washington, DC, bureau. Follow her on twitter @munashik. Additional reporting was provided by Angela Simaan, also of Al Arabia, who can be reached at: angela.simaan@mbc.net)