Guantanamo Commission Challenged by Military Defense Lawyer
Lieutenant Commander William Kuebler (pronounced Keebler), a U.S. military lawyer for a Guantanamo detainee, said to the New York Times that the war crimes system "is designed to get criminal convictions" with "no real evidence," and that prosecutors "launder evidence derived from torture." He summed it up, "You put the whole package together and it stinks." Following a June Supreme Court Decision that detainees had the right to challenge their detention in federal court, Kuebler and some of his colleagues are pressing for full review of what many have called a "kangaroo court" type of process. Kuebler is a conservative who has "never voted for a Democrat." He is religious and guided in his legal endeavors by his Christian principles. "It is a powerful way to be a witness for Christ," he said, "by demonstrating your capacity to not judge the way everybody else is judging and to serve unconditionally." Commander Kuebler has carried his defiant cause to the Canadian Parliament, seeking support for his client, Omar Khadr, who is a Canadian arrested in Afghanistan in 2002, charged with throwing a grenade that killed an American soldier. A precedent for such an extraordinary act by a U.S. officer was Major Michael Mori's trips to Australia to advocate for his Australian Guantanamo client David Hicks, local support for whom put a lot of pressure on prime minister John Howard. Hicks was released by the U.S. in 2007. Major Mori was not prosecuted and is now serving in Iraq..... Another highlight in this legal context was Navy Lt. Commander Charles D. Swift's defense of Guantanamo detainee Salim Hamdan, which went to the Supreme Court in 2006 and became a trial of the military commission, resulting in the dismantling of the Bush administration's first military commission. Prompting Swift's anti-government position was a proviso from superiors, upon hiis 2003 assignment to the case, that he could talk to his client only after his client entered a guilty plea.(!) Other grievances included the administration's dismissal of the Geneva Conventions and U.S. guidelines for this case, with the argument Al Qaeda was a terrorist group, not a proper enemy in war (Hamdan was Osama Bin Ladin's Chauffer for a time), and that he, Swift, was denied access to evidence and witnesses. (Gooogle Hamden vs. Rumsfeld or Charles D. Swift for articles.)
|Lt. Commander Kueber||Omar Khadr|
June 19, 2008 New York Times
By WILLIAM GLABERSON
When he speaks publicly, Lt. Cmdr. William C. Kuebler, a military lawyer for a Guantánamo detainee, is careful to say his remarks do not reflect the views of the Pentagon.
As if anybody would make that mistake.
In his Navy blues, the youthful commander could pass for an eager cadet. But give him a minute on the subject of his client, a terrorism suspect named Omar Khadr, and he sounds like some 1960s radical lawyer, an apple-cheeked William Kunstler in uniform.
The Bush administration’s war crimes system “is designed to get criminal convictions” with “no real evidence,” Commander Kuebler says. Or he lets fly that military prosecutors “launder evidence derived from torture.”
“You put the whole package together and it stinks,” he said in an interview.
When President Bush announced plans for military commission trials in 2001, critics said military defense lawyers would not put up much of a fight on behalf of men labeled terrorists. “They wanted us to just be good little boys,” one of the lawyers, Maj. Michael D. Mori of the Marines, once told an interviewer.
But nearly seven years later, not one trial has been held, partly because the military defense lawyers have raised a continuous ruckus, challenging the commission system rather than simply defending their clients. After the Supreme Court said last week that the Constitution gave detainees a right to challenge their detention in federal court, some of the military defense lawyers, including Commander Kuebler, seized on the ruling as another opportunity to paralyze the war crimes system with new claims that detainees are entitled to even broader constitutional rights.
The lawyers, trained in the Uniform Code of Military Justice, were selected to defend detainees in a judicial system established especially for terrorism suspects. But many of them share a sense of indignation that Guantánamo makes military justice seem like watered-down justice. Representing detainees, said one of them, Lt. Cmdr. Brian L. Mizer, “is a historic opportunity to defend the rule of law.”
Commander Kuebler (pronounced KEEB-ler) is the latest example of a lawyer in uniform attacking the Pentagon’s legal system.
He is no natural agitator. At 37, he is in some ways deeply conventional. Married to the first girl he ever dated in high school, he is a self-described born-again Christian and conservative who has “never voted for a Democrat.” Tom Fleener, a former Guantánamo military defense lawyer, described Commander Kuebler, saying, “Take the average conservative guy in the street and multiply that by a million.”
Commander Kuebler is prone to begin provocative comments with a deep sigh, as if giving himself a shove.
But he has emerged recently as one of the Pentagon’s most persistent challengers, working the news media with incendiary claims about the military’s case, filing motion after motion in court and traveling to Canada to whip up support for his client, a Canadian who is charged with throwing a hand grenade that killed an American serviceman in Afghanistan in 2002 and other offenses.
The Kuebler strategy is obvious: to irritate the powers that be into sending his client, the last citizen of a Western country at Guantánamo, home to Canada. There is no sign yet of a ticket out for Mr. Khadr, 21, the son of a family once so close to Osama bin Laden that it is sometimes called Canada’s first family of terrorism.
But the irritation strategy seems to be driving the prosecutors to distraction.
The latest incident, this month, was an assertion that found a quick audience. In a news release, he described learning of a Guantánamo manual that encouraged interrogators to destroy their notes. He suggested it was to evade questions about torture. Countless news accounts carried his claims.
The military prosecutors had complained about Commander Kuebler’s tactics before, but after the torture-concealment accusations it seemed they had reached their limit.
“One defense counsel in particular,” said the chief military prosecutor, Col. Lawrence J. Morris, “has habitually flouted the rules” and was responsible for “grossly distorting” and “fabricating information.”
Commander Kuebler responded that he “abides by military commission secrecy rules, as draconian as they are.”
However scrappy he may appear, Commander Kuebler does not claim the typical lawyer’s zest for a fight for its own sake. Instead, he said, his faith and his work are intertwined.
“It is a powerful way to be a witness for Christ,” he said, “by demonstrating your capacity to not judge the way everybody else is judging and to serve unconditionally.”
His sister, Karen Picard, said his search for meaningful work began when he was in his late 20s and a business lawyer in San Diego. His mother died suddenly. He found religion. He joined the Navy. “I think he started to realize,” Ms. Picard said, “there’s more to life than driving a BMW and having your initials on your cuff.” As a Navy lawyer, his work has included criminal defense. His clients have included a sailor charged with rape.
Since he was appointed Mr. Khadr’s lawyer last year, Commander Kuebler has taken on his cause with a drip-drip-drip of attacks on the prosecution.
He has raised questions about the government’s description of the firefight in July 2002, when the American, Sgt. First Class Christopher J. Speer, was fatally wounded. Officials have suggested that Mr. Khadr, then 15, was the last survivor of a group of anti-American fighters who “popped up and threw a grenade.”
But in February, Commander Kuebler highlighted a military report that said another enemy fighter was still alive in the compound when the grenade was thrown, suggesting that Mr. Khadr might not have been the killer.
In March, he took note of an American commander’s report that said the assailant had been killed, which would also seem to eliminate Mr. Khadr as the attacker.
He often aims at a Canadian audience as he works to pressure the Conservative government in Canada, which has been supportive of the Bush administration, to request Mr. Khadr’s return. The Toronto Star: “U.S. Doctored Evidence to Implicate Khadr, Lawyer Says.” The Edmonton Journal: “Khadr Was Likely Tortured.”
In April, Commander Kuebler appeared before a Canadian Parliament committee. “Lies have been told about Omar,” he testified.
Maj. Jeffrey D. Groharing of the Marines, the prosecutor in the Khadr case, told a military judge that “the time the defense has spent lobbying the Canadian Parliament would be better spent interviewing the witnesses.”
Asked about the role the military defense lawyers have been playing, Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said military defense lawyers have a duty to represent their clients zealously and to follow the ethical standards of their profession. He added, without naming any of the lawyers, that “it is disappointing when counsel do not live up to these standards.”
But Commander Kuebler argued that such attacks on Guantánamo were necessary. “If we’re not advocating against the process,” he said, “we’re not competently representing our clients.”
Commander Kuebler’s strategy follows energetic efforts by other military lawyers to undercut the commissions.
Lt. Cmdr. Charles D. Swift, who has since retired from the military, helped take the case of Salim Hamdan, a former driver for Osama bin Laden, to the Supreme Court. The ruling in 2006 invalidated the Bush administration’s first military commission system.
Commander Swift, now a visiting associate professor at Emory University, said he and other lawyers worried that focusing only on a defense in a commission trial would help the Pentagon argue that its system was fair enough to encourage zealous defense lawyers.
“We were concerned,” Professor Swift said, “that fighting would serve to validate the system.” The strategy to avoid that, he said, was: “Attack the system.”
Outsiders to the culture of military lawyers sometimes find their willingness to challenge their commanders’ system surprising. John D. Altenburg Jr., a retired major general who headed the Office of Military Commissions at the Pentagon until 2006, said administration planners of the commissions may have misunderstood military lawyers. They may have been influenced, he said, by old movies that showed quick military trials and perfunctory defense presentations. “I can just imagine,” he said, “a bunch of guys sitting around and saying, ‘Hey, I know, we can do military trials because the defense lawyers will all roll over.’ ”
The reality has been far different, said General Altenburg, a former senior Army lawyer.
Commander Kuebler said many of the lawyers feel the role they have been assigned “is not career enhancing” in climbing the Pentagon ladder. And at times, defense lawyers have been met with hostility within the military for their aggressive tactics.
Lt. Col. Yvonne Bradley, an Air Force reservist from Pennsylvania, was once nearly sent to the brig when she angered a military judge by asserting that legal ethics barred her from participating in the proceedings.
Commander Mizer, the fourth-generation military man in his family, challenged a Pentagon general by filing a successful claim that the general had exerted unlawful influence over the commissions.
After Major Mori made seven trips to Australia on behalf of the detainee David Hicks, an Australian Qaeda trainee, the chief military prosecutor at the time suggested that the major could be prosecuted for using “contemptuous words” against American leaders.
In Australia, Major Mori had told audiences that Guantánamo commissions were “kangaroo courts” and that Mr. Hicks was “like a monkey in a cage.” In 2007, after Australia’s prime minister at the time, John Howard, came under pressure over the case, the United States government reached a plea deal. Mr. Hicks was soon released. Major Mori was not prosecuted, and is now serving in Iraq.
As the military defense lawyers prepare for a new constitutional challenge to the Pentagon’s commissions, they are facing an unforeseen obstacle. Many detainees are refusing to cooperate with them because they see the lawyers as agents of their captors.
Mr. Khadr, however, is working with Commander Kuebler on his defense, preparing for a trial that could come as soon as this summer.
But the cooperation is not because Commander Kuebler offers any hope for a courtroom victory. If there is a trial, he said, he expects Mr. Khadr to be convicted.
“I don’t believe it is a fair process,” Commander Kuebler said.
As if anyone thought he did.