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As Lieutenant Commander William Kuebler stood before the assembled law students in his full, crisp, admittedly intimidating military dress, he began with a caveat: "Because I'm standing up here in a military uniform, I have to tell you at the outset that that my views do not reflect an official position of the United States Department of Defense or the US Government." A subtle smile interrupted his serious demeanor, "This will become evident in a matter of moments in any event."
Kuebler is an American lawyer who, like many of his fellow citizens, decided to serve his country after the 9/11 attacks and joined the military. He was eventually assigned as a Defense lawyer for terrorism suspects held at Guantanamo Bay, Cuba. His list of clients includes Omar Khadr, a Canadian citizen taken into custody by American forces in Afghanistan in 2002, and accused of causing the death of an American soldier. Khadr was 15 years old at the time.
Art Guantanamo, Bill Kuebler has wrestled with disillusionment and eventually frustration, and now has some choice words reserved for the legal process established there, a process of which he is an increasingly dissenting part.
It is a process that has seen the concept of torture "narrowly redefined." It has seen rules of procedure and evidence invented on the fly to suit specific needs. ("They were able to sit around and say 'Gee, if the hearsay rule is A, we win. If the hearsay rule is B, we lose. Well, hmm, let's pick A', and that's the process we have in Guantanamo.")
It has seen people detained without charge for years and taken out of the usual criminal process. Because of the questionable evidence gathering methods, says Kuebler, "We can't prosecute them in ordinary criminal courts, so we had to create this new special trial process called the Military Commissions."
His conclusion as to why these Commissions were established is succinct and damning: "It's real simple. It's to launder evidence and convict people using evidence derived through coercion, in some cases torture, that could not support the basis for a criminal conviction in any US court or any court in the civilized world. That's what Military Commissions are about. And that is the legal framework of the U.S. War on Terror."
Having described in detail this glaring affront to the rule of law, he continues, "So as a matter of US law today, you as a Canadian or a Brit or anyone who is not a US citizen are worth less in terms of due process. If that offends you, it probably should."
This brings us to the case of Omar KhaDr For Kuebler, that a Canadian citizen is subjected the patently unfair trials at Guantanamo should be unacceptable to us. He cites the "commendable example" of the British government, who repatriated all its citizens held at Guantanamo in 2004 (and recently extended that policy to British Residents) because, in Kuebler's view, "the UK takes its commitment to human rights and the protection of its citizens so seriously that, notwithstanding the severity of the allegations, they think that there are values that are more important." Australia, he points out, has done the same.
That Khadr was 15 at the time he was captured adds another troubling dimension. "It goes without saying that every civilized legal system on the face of the Earth draws a distinction between children and adults for purposes of prosecution and criminal punishment," says Kuebler. "But not the Military Commissions—it's one size fits all. In fact, if Omar goes to trial for what the government calls a war crime, it will be unprecedented in the history of modern war crimes tribunals."
So we have a Canadian citizen, arrested at 15, detained without charges for years, subjected to brutal interrogation methods, with virtually no hope for a fair trial—what can be done? Kuebler ends with a plea: Canada must repatriate Khadr so he can face a fair trial in this country. "If you are concerned about the treatment and respect for the rights of a fellow Canadian citizen, don't wait for the Military Commissions, the US Federal Courts, the executive branch, or Congress to allay your concerns," he says. "If anything is going to be done for this particular Canadian, if his rights are going to be protected, it is only because the Canadian people and the Canadian government act to protect them."
On November 8th, Canadian citizen and child soldier Omar Khadr will return before the Military Commission to continue his trial. American Bill Kuebler will be by his side, in uniform, standing on principle and fighting his own government tooth and nail to ensure Khadr gets a fair trial. The Canadian Government, presumably, will do nothing. At least not until the citizens it is mandated to serve get as offended as they should be.