In passing: Navy Lt. Cmdr. William Kuebler, defense attorney at GTMO for Omar Khadr

kueblerShocked and saddened to read that U.S. Navy Lieutenant Commander William Kuebler died from cancer on July 17, at age 44. (photo credit)

Bill’s representation of Omar Khadr, born in Canada and seized by U.S. forces in an Afghanistan battle, is recounted in an Ottawa Citizen obituary. I feel compelled to add my own recollection.

We met in December 2008, at Guantánamo. The occasion was the first set of military commissions hearings since November 4, 2008, when voters chose then-Sen. Barack Obama to become the next U.S. President. Because Obama had pledged to shut down GTMO, many of the lawyers, media, and observers aboard the chartered jet that took us to the U.S. military base at the southwestern tip of Cuba were calling this “The GTMO Farewell Tour.”

The week began with a failed attempt by Khalid Sheikh Mohammed and his codefendants to plead guilty to capital charges of masterminding the terrorist attacks of September 11, 2001. It ended with a hearing in Khadr – a hearing in which Kuebler proved himself a master of his craft. As I wrote at page 13 of my report for the National Institute of Military Justice:

‘Of particular interest was the effort of Navy Lt. Cmdr. William C. Kuebler (pronounced “keebler”), lead military counsel for Omar Khadr, to gain admission during this pretrial hearing of photos made during the firefight at which Khadr was captured. Kuebler argued that the photos would help the defense to make its case for compelling certain witnesses, whose testimony, it was said, would exonerate Khadr by indicating that he was buried beneath rubble at the time someone threw the grenade that killed a U.S. servicemember. The judge refused, and Kuebler went forward without the photos. But the dispute whetted the appetite of the media to see the photos, and some published a next-day story suggesting Khadr’s innocence.’

This understanding of the importance of public scrutiny, combined with an ability to inform the public even as a request was denied, illustrated Kuebler’s diligent representation of his client, Khadr – who, today, is out of prison and living in Alberta, Canada, released on bail while appeals are pending. “Khadr owes more to Bill than to any other advocate,” the Citizen obituary aptly states. And so we pause in his memory.

Marriage Cases ruling upends tradition … on how many teach Constitutional Law

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

To close America’s 4th of July weekend, reviewing un cri de coeur démocratique

mdmAmid this weekend’s reminiscences of the birth of the United States, I found much to ponder in one reading – not in English, but rather in French.

Entitled La démocratie dan les bras de Big Brother – that is, Democracy in the Arms of Big Brother – it’s the transcript of Le Monde journalist Franck Johannès‘ recent interview with a longtime colleague of mine, Mireille-Delmas Marty, emerita professor of the Collège de France de Paris. (photo credit; prior posts)

Delmas-Marty sounds a warning about the “downward spiral” that, in her view, has created an unwelcome “metamorphosis in criminal justice” in the years since terrorists attacked New York and Washington on September 11, 2001. 1st in the vortex was the United States, she says, and she fears that her own homeland, France – and, indeed, the planet – are following suit.

Contributing to this analysis, in her view:

► Characterization of terrorist acts as “exceptional” offenses, related to more to war than to ordinary crimes, coupled with the redefinition of unlawful association so that it may apply to “only one person,” without proof of actual association with another.

► Globalization of surveillance and “social control,” in an effort to predict offenses before they happen. Post-9/11, the United States moved from notions of preemption to notions of prevention, she notes. She argues that today the United States, and others, have moved further, to “prediction” – a shift that lends justification to confinement of persons deemed harmful, not only before they have been proved to commit an offense, but also after they have served postconviction sentences. She contends (all translations mine):

‘To lock up a human being, not to punish harm but rather to prevent harm, as if he were a dangerous animal, is in truth an act of dehumanization…’

► Persistence of nonstate actors that once would have been deemed exclusively “criminal organizations,” but now are seen as parties waging armed conflict. Not long ago, Al Qaeda dominated this discourse; today, it is “the so-called ‘Islamic State.'” Delmas-Marty continues:

‘With whom is a treaty of peace to be concluded? We now have all the ingredients for a global, and permanent, civil war.’

liberteAmong Delmas-Marty’s recent books is Libertés et sûreté dans un monde dangereux (2010). In the Le Monde interview, as in that book, she calls for restoring a balance between desires for security and the value of liberty. (It’s a balance that I’ve explored in my own writings, including “Punish or Surveil” (2007).)

“To dream of perfect security,” Delmas-Marty maintains, is an “illusion.” She allows that “[i]n the name of the struggle against terrorism, there can be restrictions on the right to respect for privacy,” yet she would require that such restrictions themselves be constrained in accordance with the principles “of legality, proportionality, and democratic control.”

Much to ponder as the United States begins its 240th year of democracy.

Briefing: Torture & children deprived of liberty

mendezAll who care about children and international law will want to register for “Torture of Children Deprived of Liberty: Avenues for Advocacy,” “a global online briefing” to be hosted at 12 noon Eastern Standard Time next Tuesday, May 5, by the Anti-Torture Initiative of the D.C.-based Center for Human Rights & Humanitarian Law, American University Washington College of Law.

Panelists will include:

Juan E. Méndez, American University law professor, U.N. Special Rapporteur on Torture, and author of the 2015 thematic report on children deprive of liberty, which will form the core of the discussion (credit for photo of Méndez delivering this report to the U.N. Human Rights Council last month)

Jo Becker, Advocacy Director, Children’s Rights Division, Human Rights Watch

Ian M. Kysel, Dash/Muse Fellow and Adjunct Professor of Law, Georgetown Law Human Rights Institute

► Dr. Benyam Dawit Mezmur, Vice Chairperson of the U.N. Committee on the Rights of the Child and of the African Committee on the Rights and Welfare of the Child, as well as  a law professor at the University of Western Cape in South Africa, and Addis Ababa University in Ethiopia

Registration and further information here.

ICC Prosecutor marks International Day against the Use of Child Soldiers

Reprinted in full, “No child should be made to suffer such horrors,” the statement issued today by International Criminal Court Prosecutor Fatou Bensouda in commemoration of the 13th anniversary of the entry into force of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict — a date known since then as the International Day against the Use of Child Soldiers:

2bensoudaThousands of children around the world continue to be used as soldiers and affected by the horrors of war.  Instead of a childhood filled with tranquillity and joy, learning and play, children are far too often the primary victims of armed conflict, where they are trained and forced to kill, rape, pillage, and undertake hard physical labour.  Their traumatisation should weigh heavily on our collective conscience, and cannot be left unabated.

The daily reality for these children, boys and girls, is both appalling and traumatic. Thrust into battle zones, they must struggle to survive or perish, often through violent deaths; where they are forced to witness or commit unspeakable acts of violence against others, military or civilian, men, women or children, at times, even against their own families. They may be exposed and fall victim to horrific sexual violence.

The Rome Statute of the International Criminal Court (ICC) mandates the ICC Prosecutor to investigate and prosecute the crimes of genocide, war crimes and crimes against humanity – crimes which shock the conscience of humanity.  The conscription, enlistment and use of child soldiers figure amongst the most reprehensible crimes under the Rome Statute.

There is no such thing in the Rome Statute as lawful conscription of children under the age of 15 into the armed forces or groups, or their enlistment irrespective of whether the child joins voluntarily or through compulsion. Those who recruit children or use them to take active part in hostilities are committing serious crimes and must be held accountable.

The law must be a cornerstone of protection for all children in war zones. On this International Day against the Use of Child Soldiers, the world owes it to our children to renew its collective resolve to prevent and end impunity for these crimes.  This is not only a moral imperative and a legal duty under the Rome Statute, but necessary to ensure the success of future generations.  A crime against a child is an offence against all of humanity.

“Associate Dean for International Programs & Strategic Initiatives”

PrintRather than approve as comment a recent IntLawGrrls post, I wish to thank Karen Hoffman and other ‘Grrls for their good wishes, apparent in the title of that post: You go ‘Grrl! Diane Marie Amann named Georgia Law Associate Dean for International Programs and Strategic Initiatives. It recounts what for me is most welcome news: Our new Georgia Law Dean, Bo Rutledge, has appointed me to the Associate Deanship described in the post’s title.

My deep thanks to the post’s author, Karen Hoffman, and from the many IntLawGrrls and others who’ve sent congratulations. I look forward to drawing on your support and good counsel as we work to continue Georgia Law’s international law tradition, which began in 1940, when Sigmund Cohn, a Berlin judge driven out of his homeland by Nazi policies, joined the faculty and began teaching international law. Other landmarks included the establishment in 1977 of the Dean Rusk Center for International Law & Policy – named, of course, after the former U.S. Secretary of State who taught here after retiring from government service – and the arrival of the 1st holder of my Emily & Ernest Woodruff Chair in International Law, Louis B. Sohn. These are but 2 of the brilliant international lawyers who’ve taught here (today’s cohort includes Dean Rutledge and my colleagues Harlan Cohen and Tim Meyer).

They’ve prepared students for brilliant careers. Alums include: Ertharin Cousin, Executive Director of the World Food Programme; Luis A. Aguilar, a member of the Securities & Exchange Commission; Federal Trial Judge Valerie Caproni, former Chief Counsel of the FBI; William V. Roebuck, U.S. Ambassador to Bahrain; U.S. Navy Cmdr. Walter Ruiz, who represents one of the five 9/11 defendants before the Guantanamo military commissions; Kit Traub, Minister-Counselor for Political Affairs (Acting), U.S. Embassy, London; Kannan Rajarathinam, Political Affairs Officer at UN Assistance Mission for Iraq; Charles A. Allen, Deputy General Counsel for International Affairs, U.S. Department of Defense; Kiran Ahuja, Executive Director, White House Initiative on Asian Americans and Pacific Islanders; and Jean-Marie Henckaerts, Legal Advisor, International Committee of the Red Cross.

I look forward to contributing to this grand tradition.

Deadline nears for ASIL Helton Fellowships

asil_logoThe American Society for International Law is accepting applications for its 2015 Helton Fellowships. The Helton Fellowship Program, established in 2004, recognizes the legacy of Arthur C. Helton, an ASIL member who died in the August 19, 2003, bombing of the UN mission in Baghdad. Helton Fellowships provide financial assistance in the form of “micro-grants” for law students and young professionals to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas.
Applications are due this Monday, January 19, 2015, and only the first 50, fully complete applications will be considered. This is a fantastic opportunity for students and new  professionals to further their career in international law.
Details here or by e-mailing fellowship@asil.org.