Canada, Bring Home Omar Khadr
Young Guantanamo prisoner needs Ottawa rescue, says US military lawyer.

By Jared Ferrie
From TheTyee.ca
2007

A Canadian imprisoned in Guantanamo Bay since he was 15 years old won't see justice unless Ottawa brings him home, Omar Khadr's American military lawyer said yesterday.

Lt.-Cmdr. William Kuebler urged Canadians to write to their MPs about Khadr, now 20, who is facing trial in a "rigged system" that contravenes international law.

"If the rights of this particular Canadian citizen are going to be protected, it's going to be because the Canadian public and the Canadian government do something to protect them," said Kuebler, speaking at a luncheon in Vancouver hosted by the Canadian Institute for International Affairs.

If Ottawa doesn't intervene, Khadr might never be released, he added.

What makes a soldier?
Khadr is accused of throwing a grenade that killed U.S. Special Forces Sgt. Christopher Speer during a July 2002 battle in Khost, Afghanistan. Khadr was critically shot and sent, along with others captured during and after the U.S. invasion of Afghanistan, to the American military base in Guantanamo Bay, Cuba.

The killing of one soldier by another in battle is not ordinarily considered a war crime, but the U.S. subsequently designated detainees "unlawful enemy combatants" -- a term that theoretically strips them of rights laid out in the Geneva Convention. The term "is not found in Department of Defense manuals before 2004," noted Kuebler.

He said the Military Commissions Act, which Congress approved last year, was constructed on an ad hoc basis in order to convict people using evidence derived from torture and coercion. For one thing, the commissions don't consider non-uniformed combatants soldiers -- despite the fact that U.S. Special Forces and their allies in Afghanistan weren't wearing uniforms when they overthrew the Taliban in 2001.

Another quirk of the system is that it does not apply to American citizens, hundreds of whom have been convicted of terrorism-related offences in federal courts, according to Kuebler.

"As a matter of U.S. law today, a Canadian is worth less than an American in the matter of due process," he added.

Different passport, different treatment
Khadr is now the only Westerner left at Guantanamo. In May, David Hicks returned to Australia, after spending five years at Guantanamo, to serve the remainder of his sentence. He was the first person convicted under the Military Commissions Act and is due for release next year.

Kuebler said the Australian government only went to bat for Hicks after public outcry over the fairness of the trial, as well as living conditions at Guantanamo.

The British government successfully demanded repatriation of a number of citizens, and has also requested the return of five U.K. residents. Kuwait has managed to repatriate five of its citizens.

In contrast, Prime Minister Stephen Harper and former foreign affairs minister Peter MacKay have expressed confidence in the U.S. government's ability to provide a fair trial.

Canada has not only refused to lobby for Khadr's repatriation; Canadian Security Intelligence Service (CSIS) agents have interrogated him while in American custody.

"Their first action upon learning Omar was in detention in Guantanamo was to go down and take advantage of that," said Kuebler.

In 2005, CSIS defended its tactics, explaining it had an obligation to help protect national security by questioning Khadr, whose family members have admitted to having links with al-Qaida.

Child soldier or terrorist?
Omar Khadr's father, Ahmad Khadr, was allegedly a senior al-Qaida operative who began indoctrinating his son at age 10.

While the senior Khadr was killed by Pakistani soldiers in 2003, he could have been subject to prosecution for war crimes, according to Kuebler, who pointed out that international law does not lay blame on child soldiers.

"It lies with the adult person who put that child in combat."

Canada has been a leading advocate for the rights of children, said Kuebler, calling Ottawa's policy toward Khadr "inconsistent."

As a contrast, he pointed to the case of Ishmael Beah, who recently documented his experience as a child soldier in Sierra Leone in a best-selling book.

Beah admits to killing more people than he can count and describes incidents that would constitute war crimes if committed by an adult, including shooting prisoners. At 15, Beah began his rehabilitation process and has been lauded for conquering his horrific past.

Khadr still spends 23 hours a day confined to a cell where the lights are never turned off and cardboard covers the windows, Kuebler pointed out.

Do Canadians care?
Canadians are split on the question of what to do with Omar Khadr, as polling results released in June by Angus Reid reveal:

Forty-six per cent agreed that Khadr should be treated as a child soldier, while 36 per cent disagreed.

Forty-one per cent said Canada should actively intervene to secure his release, while 40 per cent disagreed.

Fifty-one per cent said Khadr should face justice in Afghanistan.

Ambivalence to Khadr's fate may have something to do with statements of public support for terrorism made by members of his family. For example, in March 2004, Omar Khadr's mother, Maha, and his sister, Zaynab, expressed sympathy for al-Qaida and suicide bombers during a CBC interview. Still, Kuebler has said he is surprised that the Canadian government has made no effort to repatriate one of its citizens.

The Angus Reid poll may provide a clue to Ottawa's reasoning: Conservative voters were most likely to say that Canada should not attempt to repatriate Khadr, while Liberal and NDP voters said exactly the opposite.




Omar Khadr's Lawyer: On a Mission

By Jesse Ferreras
From TheTyee.ca
2007

Omar Khadr's lawyer can be forgiven for seeming a little dejected.

Over the course of two months, Lt. Cmdr. William C. Kuebler, a judge advocate general (JAG) representing the young Canadian accused of terrorism, has delivered dozens of talks at institutions throughout the world on behalf of his client. The result has been positive reviews for his work, but little political action to help him out.

One of the most recent news reports about Khadr's case has Kuebler calling the decision to allow his trial to proceed at Guantanamo Bay an "Alice in Wonderland" scenario.

Khadr has been a prisoner at the notorious U.S. military prison at Guantanamo Bay, Cuba, since the age of 15 on charges that he killed a U.S. Special Forces soldier during a 2002 raid in Afghanistan. Kuebler is the lead lawyer in a group of four that includes two Canadians and two counsels from the U.S. Office of Military Commissions. He is also the third American lawyer assigned to represent him after his client fired two American lawyers in May.

Now 21 years old, Khadr is scheduled to have his case reopened tomorrow, Nov. 8, in what his lawyer has called a "kangaroo court," a military judicial process that Kuebler has been working hard to expose as a sham in talks at institutions such as Oxford, McGill, and the University of British Columbia.

Confounded by Canada
When asked whether he would be interested in being the subject of a story, Kuebler laughed and said, "If you want to waste the ink."

His talk at UBC filled the Meekison Arts Student Space, a common area reserved as meeting space for UBC's biggest faculty. He wore the uniform of a navy officer, a testament to an oath he has taken to defend the United States against its enemies, but his position at Khadr's side put him in the role of "devil's advocate," so to speak.

He is, after all, defending someone widely believed to have killed a fellow member of the U.S. military.

There's no doubt that Kuebler takes his oath very seriously, but UBC was one stop on a speaking tour to show his lack of confidence in the judicial process that his client is about to face.

Kuebler is confounded that Canada, a country that prides itself on defence of human rights, is allowing one of its nationals to face a tribunal created by the Military Commissions Act.

The act was passed by the U.S. Congress in 2006 with the intention that detainees be provided a "fair trial in accordance with the applicable laws of war." Procedures were adopted that would allow special tribunals to try "unlawful enemy combatants" for violating the law of war.

Kuebler doesn't buy that. "The administration [has] come up with a novel theory of the law of war to justify the jurisdictional basis for these trials," he told his UBC audience. "The ultimate purpose was to have a system in which the president and other executive branch officials had virtually unfettered discretion to design rules."

Torture and Coercion
Kuebler argued in his talk that Khadr is facing an unfair process that, among other things, accepts hearsay as evidence and deems almost anyone fighting back against American forces a war criminal.

This is allowed through a provision in the act that determines that anyone under the banner of "unlawful enemy combatancy" who has "purposefully and materially supported hostilities against the United States" is guilty of a war crime if they are not wearing a uniform or insignia to show who you were.

But one of the biggest flaws he points to is that military commission cases at Guantanamo are built on confessions obtained through torture and coercion.

"They do not employ the same safeguards to ensure that that evidence is reliable, probative, that it's voluntary," he said. "It became necessary to create a system in which we can essentially launder that information and convict people based on something other than reliable evidence."

"That, in a nutshell, is why we have military commissions."

'Lawyers help people'

Lt. Cmdr. Kuebler's father, a corporate lawyer, instilled a drive in his son to be a lawyer at a young age.

"I'd ask him, what do lawyers do? And he'd say, 'lawyers help people,'" he said. "It's a way to help people and it's a way to use my talents to help people in need."

Kuebler has been a lawyer in various offices since graduating with a Juris Doctor from the University of San Diego, cum laude, in 1996. As a student he took part in the National Moot Court Team, a competition that allows second- and third-year students a chance to hone their chops in a mock court setting.

He helped lead his team to participation in the Philip C. Jessup International Law Moot Court Competition, an annual contest that pits university teams against each other to argue cases as if before the International Court of Justice.

He also served as an editor of the San Diego Law Review, the school's journal of legal scholarship. "If you manage to defraud your way to good grades in law school they put you on a law review," he remarked sarcastically.

After joining the Office of Military Commissions in 2005, the Pentagon assigned him to Khadr's case. He is his third American lawyer after Khadr fired two American lawyers last May, and he admits he has had a hard time earning his trust.

"A number of months passed after I had been assigned to the case before he would even meet with me," he said. "Omar probably began from the position that anybody would in his position, being distrustful of a U.S. military officer."

Kuebler added that subsequent meetings have been more cordial, but said that he feels like he's talking to a teenager.

Standing Ovation
In defending Khadr, Kuebler joins a recent tradition of U.S. military lawyers who have gone abroad to their clients' countries to muster support.

His story has a parallel in that of Major Michael Mori, a Marine defence lawyer who in 2006 lobbied the Australian people on behalf of David Hicks, an Australian held at Guantanamo on charges of providing material support to terrorism.

Mori's efforts involved various talks throughout Australia that addressed flaws in the military commissions. He became a sensation when he addressed a rally of a reported 2,000 people in Adelaide.

What followed was a march to the office of the Australian foreign minister, in which it was reported that Mori carried a petition signed by 50,000 people with the demand that Hicks be repatriated.

His efforts were ultimately successful and helped lead to Hicks's release from Guantanamo. Mori was called a "hero" and a "role model," according to reports.

Kuebler's efforts, meanwhile, are more modest. He has chosen simply to educate people rather than circulate a petition. An August 2007 speech to the Canadian Bar Association resulted in a standing ovation and was followed by a letter from the Association's president to Prime Minister Stephen Harper, asking for Khadr to be brought back to Canada.

Retired Judge Advocate General Scott Silliman, now a professor of law at Duke University, praises Kuebler's efforts.

"Here is a navy Lt. Cmdr. who is defending an alleged terrorist against an individual, the president of the United States, who is also his commander-in-chief," he said. "I am fiercely proud of individuals like Kuebler and his colleagues."

Risking his career?
But the success of such lawyers hasn't come without scrutiny. While defending Hicks abroad, Major Mori was accused of showing contempt for a government official, an important tenet of the military's ethical code.

It hasn't been ruled out that Kuebler could face similar scrutiny. "In the future, [he] may suffer some personal consequences for representing his client zealously," said Mike Berrigan, deputy chief defense counsel at the Office of Military Commissions.

"Every attorney in the military faces that. Some military attorneys refuse to be defence counsel for that reason; they think it will hurt their careers."

But Kuebler is careful to distance himself from speculation he's a dissenter. "I don't consider myself a whistleblower," he said. "I'm just doing my job as Omar Khadr's lawyer.... I don't have a hard time saying these things."

Urging Canadian Action
For his efforts, Kuebler has seen little fruit towards getting his client a fair trial. In late September he met with Liberal Leader Stéphane Dion, who later announced that Canada should demand Khadr's return, but only if the United States does not guarantee him a fair trial.

Liberal MP Omar Alghabra, who was also at the meeting, was impressed by Kuebler's demeanour but was careful to specify that his party's position was that Khadr should be tried on American soil and only be brought back to Canada if that would not happen.

Beyond that, his client has not become much of an issue in Canada. The media have not discussed him very deeply and few seem to lose sleep over the fact that an accused terrorist will face so controversial a judicial process tomorrow.

Kuebler says he won't give up until his client sees what he hopes will be actual justice, and that he can't do it without help from Canadians.

"I would urge you as Canadian citizens to not wait or assume that the United States governments, or the United States courts, are going to fix the problems that I've identified," he told his UBC audience.

"I believe firmly that if the rights of this young Canadian citizen are going to be protected, it's going to be because Canada acts to protect them."