IHT : An unlikely antagonist in the detainees' corner

An unlikely antagonist in the detainees' corner

By William Glaberson | June 19, 2008

When he speaks publicly, Lieutenant Commander William 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," 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 George W. 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, Major Michael 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 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, Lieutenant Commander Brian Mizer, "is a historic opportunity to defend the rule of law."

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 Kuebler, saying, "Take the average conservative guy in the street and multiply that by a million."

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 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 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, Colonel Lawrence Morris, "has habitually flouted the rules" and was responsible for "grossly distorting" and "fabricating information."

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," 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 Khadr's lawyer last year, 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, Sergeant First Class Christopher Speer, was fatally wounded. Officials have suggested that Khadr, then 15, was the last survivor of a group of anti-American fighters who "popped up and threw a grenade."

But in February, Kuebler highlighted a military report that said another enemy fighter was still alive in the compound when the grenade was thrown, suggesting that 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 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 Khadr's return. The Toronto Star: "U.S. Doctored Evidence to Implicate Khadr, Lawyer Says." The Edmonton Journal: "Khadr Was Likely Tortured."

In April, Kuebler appeared before a Canadian Parliament committee. "Lies have been told about Omar," he testified.

Major Jeffrey 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, Commander Jeffrey 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 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."

Kuebler's strategy follows energetic efforts by other military lawyers to undercut the commissions.

Lieutenant Commander Charles 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.

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 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 Altenburg, a former senior army lawyer.

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.

Lieutenant Colonel 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.

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 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, Mori had told audiences that Guantánamo commissions were "kangaroo courts" and that 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. Hicks was soon released. 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.

Khadr, however, is working with Kuebler on his defense, preparing for a trial that could come as soon as this summer.

But the cooperation is not because Kuebler offers any hope for a courtroom victory. If there is a trial, he said, he expects Khadr to be convicted.

"I don't believe it is a fair process," Kuebler said.

As if anyone thought he did.