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.