Pentagon Fires Omar Khadr’s Defense Attorney

by Kevin Jon Heller

The more things change, the more things stay the same — at least with this administration:

He had become the most vocal opponent of the trial of Guantanamo Bay detainee Omar Khadr, taking on a position more akin to politician than lawyer and launching a two-year public and media campaign that landed him on the front pages of newspapers and inside glossy magazines.

But U.S. Navy lawyer William Kuebler’s role as the Pentagon-appointed defender of 22-year-old Khadr came to an end today when he was fired from the case.

An internal investigation by Guantanamo’s Chief Defence lawyer, Col. Peter Masciola, had been launched into Kuebler’s conduct in February following months of backroom fighting among the Pentagon’s defence team. Kuebler had accused Masciola of a “conflict of interest.”

Kuebler was dismissed for the improper supervision and management of Khadr’s defence team, according to an email sent Friday night by Guantanamo’s Deputy Chief Defence lawyer Michael Berrigan. Kuebler’s re-assignment was “in the best interests of Omar Khadr, and necessary to pursue a client-centered representation.”

[snip]

Reached in his office today, Kuebler said he could not comment. A press release, issued on his behalf, lashed out at Masciola, saying he was acting “to support he agenda of military prosecutors.”

Col. Masciola certainly has an interesting conception of “client-centered representation.” He blocked Kuebler from seeing Khadr in February, and one of Khadr’s Canadian lawyers has made it clear that Khadr himself was not involved in the decision to fire Kuebler — and may not even know about it.

http://opiniojuris.org/2009/04/04/pentagon-fires-omar-khadrs-defense-attorney/

8 Responses

  1. This is long overdue. When someone is charged with a crime before a military court, he is assigned a military officer to assist in his defense. The officer’s military assignment is to provide legal assistance within the context of the upcoming military trial. A civilian acting as part of the defense can do anything he feels appropriate. Mr Kuebler could certainly resign his commission, and then as a civilian lawyer act on behalf of his client. However, a US military officer is not free to travel to a foreign country and lobby foreign government or politicians to take political positions that happen to benefit his client, though not in any way related directly to the process of the military trial. The officer must stick to the scope of his military assignment and let civilians deal with extraneous matters.
    If a criminal defendant were assigned a defense attorney, and then the Public Defender’s office learned that during the time supposedly spent preparing for the criminal trial the attorney also drafted a will, provided detailed help on a tax matter, prepared a trust, and incorporated a business for the defendant, all while being paid by the government just to prepare a criminal defense, they would be entirely within their rights to fire the defender. On the other hand, if a defendant hires a private attorney, then he is paying the bill and can ask for any legal services he wants in addition to his defense.

  2. Oh nonsense.

    What’s long overdue is the shutting down of these illegal kangaroo courts and the removal of unindicted war criminals like Robert Gates and Gordon England from the high offices which they have disgraced by their CRIMES. Not that I’m holding my breath or anything.

    This smells like just one more example of UCI in a very long series.

  3. Can’t have it both ways…it’s either an adversary process or not.   This is par for the course as far as JAG’s who take up the mantle of defending detainees have fared.  Hat’s off to Kuebler, Swift, and their brethren for doing their duty.  I’m not sure I could.

    Bagram has become the new epicenter of the detainee debate: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv2143-28.

  4. If you are a public defender with a client accused of growing marijuana, then it might be in the interest of your client that the people elect a state legislator who promises to repeal the law your client is accused of breaking. A private lawyer could do as he pleases, but a state employee cannot, while being paid by taxpayers to prepare a defense, engage in partisan politics making the excuse that the election of a candidate would be favorable to the client’s legal situation. There are laws that prevent government workers from engaging in political campaigns while on the job. There are regulations that prohibit a naval officer from lobbying foreign government officials on his own while in uniform. If Kuebler felt he had to go outside the limitations of his military duties, he could have resigned and carried on as a civilian. The role of the defender is to defend his client in court, not to try and free his client by political campaigning that has nothing to do with the courtroom defense he was assigned to prepare.

  5. The jurisdiction of the court-martial is the foundational issue in representing the accused. I’m not as familiar with Navy regs, but AR 27-10 and 27-26 demand zealous representation of the client. Kuebler, Swift and many others have been performing their ethical and professional duty.

    Mr. Gilbert, please cite the authority for your proposition that the military lawyer is limited in venue or content as to his (or her) advocacy on behalf of the client.

  6. AR 27-10 and 27-26 require zealous defense and advocacy, but specifically within the context of the legal adversary process. I can find no mandate to advocate on behalf of a client in the press, public relations, or politics. This is a particular problem when the client is a enemy in war who is dedicated to killing Americans. In court, he is entitled to  the same zealous defense given any other client. Legally, the US is not required to give him anything more than a courtroom defense.

    In a civilian criminal trial, a lawyer may hold press conferences, appear on TV interviews, and do anything else permitted to sway public opinion in favor of his client. However, when the client is an enemy of the US dedicated to killing as many Americans as possible, then representing his interests outside the courtroom is a very dangerous and complicated proposition.

    The complaint of Masciola may be simply that of  a boss who finds an employee is spending a lot of time playing fantasy football on the internet while supposedly working. Kuebler was supposed to be preparing a defense. When he was traveling through Canada trying to drum up political support for government officials to intervene in the case, he may have represented the external interests of his client. However, it  had nothing to do with preparing the legal case, which was only thing he was supposed to be doing. So he could be accused of “improper supervision and management” of time and resources.

  7. Instead of analogies, how about something tangible?  A CAAF decision, even.  And what exactly is a “courtroom defense?”

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