They argued for the dismissal of the charges based on the following criteria:
- The fact that the tribunal itself was not established until after the alleged crimes occurred.
- Their belief that the crimes occurred during a legitimate military exchange.
The eyewitness also said a second enemy fighter was alive inside the compound when he entered. Khadr's defence lawyers said this casts doubt on the U.S. government's conclusion that Khadr threw the grenade.
"It does raise questions as to basic facts of the government's case," said Khadr's lead defence lawyer, U.S. Navy Lt.-Cmdr. William Kuebler.
.....The tribunal heard from Rebecca Snyder, one of Khadr's defence lawyers, that Khadr can't be tried for murder as a war crime because the offence occurred during a battle and should be classified under traditional laws of war.
"Soldiers are not protected targets," she argued. "That is part of what war is about, killing soldiers."
Earlier Monday, Khadr's Canadian lawyer Dennis Edney told CTV's Canada AM the defence had a number of concerns.
"We have a number of motions before the judge," lawyer Edney said.
"One, of course, is that Omar Khadr be designated a child soldier. The other is we're challenging the definition of terrorism, particularly Omar Khadr being detained as a terrorist on a tobacco field. Essentially, we're challenging all the various indictments against Mr. Khadr."
The lead prosecutor in the tribunal, Marine Corps Maj. Jeffrey Groharing, said Khadr wasn't following accepted ruled of legitimate warfare and therefore should be tried by the special court.
He pointed out that Khadr conducted surveillance in civilian clothing, and lived with women and children at a compound where the fighting took place.......
"The accused and the terrorists he was working with did not belong to a legitimate army, they belonged to al Qaeda,''
If true, then I wonder why pick little Omar Khadr from all the other detainees? Because he is a Canadian? Why would Cheney want to put a Canadian "terrorist" into the public spotlight? What does that gain him?
That opinion was based on conversations Davis had with 60 Minutes producers, Kuebler said. The producers of the show have refused to officially reveal how the video was obtained.
...... "They prohibit me from discussing just about anything included in the government's case against my client, so if the government isn't abiding by its own rules, I think that's a clear violation of those orders," Kuebler said.
Davis resigned from his post as chief prosecutor last October, claiming political interference was keeping him from doing his job properly.
..... Kuebler said the military prosecutors "desperately" wanted to play the video before the media last November when the case was before the court in Guantanamo Bay.
"They didn't get the chance to do it, and low and behold it ends up on 60 Minutes a couple of weeks later," he said, adding that prosecutors have considered the video the "smoking gun" in their case against Khadr.
However, Kuebler dismissed the importance of the leaked footage.
"I think the tape, at worst, if in fact it is what the government says it is, shows that Omar Khadr was exploited and used as a child soldier by much older people in Afghanistan, which is what we've always said," Kuebler said.