GUANTANAMO BAY NAVY BASE, Cuba — American air strikes in Afghanistan in 2002 so buried Canadian Omar Khadr beneath the rubble of an al Qaeda compound that the accused teen terrorist was incapable of throwing a grenade that killed a U.S. soldier, defense lawyers argued Friday.
The new defense theory emerged at a hearing ahead of the Jan. 26 war crimes trial of Khadr, captured at 15 and accused of terrorism in a firefight that killed a U.S. soldier six years ago in Khost, Afghanistan.
Defense lawyers want Judge Patrick Parrish, an Army colonel, to compel testimony from an American who was there — known in public as "Soldier No. 2."
''Soldier No. 2 is the one that inadvertently stepped on Mr. Khadr?'' Parrish asked while the now adult accused doodled on a notepad.
Yes, the lawyers responded, noting in their brief that the soldier found Khadr inside a bombed-out compound ''so covered in rubble'' that the soldier stood on top of him.
The American 'thought he was standing on a 'trap door' because the ground did not seem solid ... [and] bent down to move the brush away to see what was beneath him and discovered he was standing on a person.''
The hearings reveal an emerging fog-of-war defense by Khadr's Pentagon-paid lawyers, who are increasingly arguing that troops could not know for sure who threw a grenade that killed a Special Forces soldier in a firefight in July 2002.
U.S. forces had assaulted the compound in search of al Qaeda holdouts in the ninth month of their invasion of Afghanistan. When someone fired from inside, killing two local translators, American forces ordered two 500-pound bombs dropped on them.
Once the place was largely leveled, U.S. troops assaulted the compound. The victim, Army Sgt. 1st Class Christopher Speer, 28, of Albuquerque, N.M., was struck by ultimately lethal shrapnel.
Khadr was discovered shot twice in the back. U.S. medics saved him, and he subsequently supposedly confessed to throwing the grenade while being interrogated there and in Cuba.
Defense attorneys have already sought exclusion of the teen's confessions, saying they were the fruits of abuse. Moreover, they have sought psychiatric expertise to argue that Khadr was so shell-shocked by the U.S. bombs even he cannot know if he threw the grenade.
The government said Khadr was an al Qaeda fighter who had no authority to fight anyone in Afghanistan, and was responsible for the death of Speer and wounding of another American soldier.
Now 6-foot-2, with a bushy beard, he could be ordered to serve life in prison if convicted.
The Khadr case is being widely watched.
His is the first slated to go to trial six days after Barack Obama becomes president. Obama's team is deciding whether to suspend or discard military commissions in favor of criminal trials and traditional courts-martial.
Critics argue he deserved special status as a so-called ''child soldier,'' not six years behind the razor wire of Guantanamo in the company of adults considered enemies of America.
Moreover, the Toronto-born 22-year-old, who was captured at 15, is the lone citizen of a Western nation among the 250 detainees here after the systematic repatriation of more than 500 other detainees, notably British citizens once designated for war crimes trials, too.
The judge set the next pre-trial hearing in the Khadr case for Jan. 19, the Martin Luther King Jr. Day federal holiday, with spillover sessions slated for Inauguration Day and the rest of the week.
''Justice doesn't take a holiday,'' said Army Capt. Keith Petty, a case prosecutor.
Khadr's lead defense lawyer, Navy Cmdr. William Kuebler, declared afterward that absent an order to stop the trial Jan. 26 Obama will preside over "the first administration in U.S. history to try a child soldier."