The Gitmo Defense Attorney Who Refused to Toe the Line

Talented litigator Bill Kuebler was honored to be selected to represent Guantanamo detainees charged with war crimes. He succeeded wildly—and paid for it the rest of his career.

The Gitmo Defense Attorney Who Refused to Toe the Line

On his first day teaching at the United States Naval Academy, Bill Kuebler leaned against a table at the front of the classroom as his students filed in and got settled in their seats. Kuebler — round-faced and bespectacled with shoulders slightly but irrevocably hunched, a kind of bookworm’s cauliflower ear — clicked his handheld mouse and, behind his head, a PowerPoint slide flashed on the board. He started, as is the Day One expectation, with a little background about himself. He ran down a list of his past jobs, the various places the Navy has sent him, though he’d never divulge even a clue as to what that journey entailed. He said nothing about his trips to Cuba to visit clients who would have rather seen him dead, as at least one told him, than arguing on their behalf. Nothing about his testimony before the Canadian parliament, or The New York Times stories, or the GQ profile. Nothing about his very own catch-22: caught between being an obedient military officer and someone worthy of a law license. Nothing about being fired and escorted out of his office by armed federal agents. He didn’t say a thing about how he went back to work the next day.

In any event, class had begun.

Lieutenant Commander William “Bill” Kuebler died this past July, at age 44, after a yearlong battle with cancer. For the last two years of his life, he was an assistant professor of military law at the United States Naval Academy and the course director for “Law for the Junior Officer,” which all midshipmen must pass before they can graduate and be commissioned as naval officers. But by any account, though the Academy was Kuebler’s last professional stop, it was a mere footnote to the story of his career. Accounts differ on how that footnote should read. To some, his role at the Academy was a misappropriation of one of the Navy’s best legal talents and most battle-tested constitutional defenders. To others it was just comeuppance for a limelight-seeking rabble rouser.

To Kuebler’s family, it really doesn’t matter; he just did what he was called to do, whatever the cost.

The calling was initially deferred. Kuebler was a Naval Sea Cadet in grade school, and in high school, at the Army and Navy Academy in Carlsbad, California, he won the role of adjutant. He would announce the parade calls as the cadets marched in front of their classmates. It was a plum assignment for a kid with a shy disposition, made even better by the fact that it helped him attract one of the girls in the stands. In college he discovered new interests, like history and philosophy. He found a spot where the two intersected — the law.

Bill, at 3 years old, at Harbor Island, San Diego. (Photo courtesy of Dawn Kuebler)
Bill, at 3 years old, at Harbor Island, San Diego. (Photo courtesy of Dawn Kuebler)

But that girl who heard him bellow those marching orders, the girl who would become his girlfriend and later his wife, saw much earlier that Kuebler was drawn to justice. They were still in high school, Dawn Kuebler says, on one of their first real dates. “We were with a bunch of friends at the movie theater,” she recalls, “and some of the kids started throwing popcorn.” Dawn jumped up from her seat to join in the fun. Seconds later Bill jumped up too, to turn to the group and admonish them: “That’s not appropriate.” If not yet a master of rhetoric, Kuebler had found a cause for its development. (He would later become so dedicated to the craft that he and his son, also William but “Bear” to his parents, would line up Bear’s stuffed animals on the edge of the couch or bed, pick a topic from a hat, and make presentations to their captive audience).

Kuebler graduated from the University of San Diego School of Law with honors in 1996 and took a job as a corporate lawyer. But representing piles of money didn’t exactly feel like the pursuit of justice. Then, in 1998, his mother died suddenly, which gave his psyche a jolt. He rediscovered his Christian faith. He reevaluated his career. His sister Karen Picard later told a New York Times reporter, “He started to realize there’s more to life than driving a BMW and having your initials on your cuff.” At 28, late in the game by military standards, Kuebler went in search of a Navy recruiter.

Most Judge Advocates, or “JAGs,” join the Navy right after law school. Kuebler, by comparison, was salty, and his experience — let alone his talents — made him a commodity. He was sent to Italy and London, where he did some family law and later some defense work. He was then sent to the submarine base in New London, Connecticut, where he advised an admiral and received an appointment as a Special Assistant United States Attorney prosecuting cases in federal court. For his success in these jobs, for his “professional ability, leadership and litigation skills, and personal integrity,” according to the Judge Advocate General of the Navy, the service’s highest ranking lawyer, Kuebler was assigned to the Office of Military Commissions. This job would raise the stakes of Kuebler’s career. It would also completely change its trajectory.

Military commissions have no explicit place in our constitutional framework, but have been used to prosecute violations of the laws of warfare since the American Revolution. Throughout U.S. history they’ve appeared, by design, on an ad hoc basis — in time of war, and only so long as the war demands it. They were used most notably during the Civil War and after World War II.

This history helps explain why, when Kuebler first reported in 2005, the system seemed a bit rusty: although re-convened in November 2001 by executive order, not a single detainee had yet been brought to trial since President Bush issued the order. As Kuebler saw it, there was another reason. The attacks of 9/11 brought about, as he often called it, a “new paradigm” of warfare, an era in which new rules were needed to combat a new kind of foe, one who disregarded the most basic rules of warfare (like wearing a uniform and aiming at the folks in the different uniforms). He wasn’t at all against the war on terror or how it was being waged, and was eager to be a part of cutting-edge legal developments. As he later told GQ, “I approached it with the idea of affording the system a presumption of legitimacy.” Kuebler didn’t know how difficult this would be.

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Bill and Bear golfing. This is one of Dawn’s favorite photos because they always coordinated their outfits when golfing. Sometimes Bill was Bear's caddy in junior golf tournaments. (Photo courtesy of Dawn Kuebler)
Bill and Bear golfing. This is one of Dawn’s favorite photos because they always coordinated their outfits when golfing. Sometimes Bill was Bear’s caddy in junior golf tournaments. (Photo courtesy of Dawn Kuebler)

“My first client fired me on day one,” Kuebler casually told me in 2012. He and I both taught at the Naval Academy then. The client’s name was Ghassan Abdullah al Sharbi, a Saudi who spoke flawless English and had graduated from Embry-Riddle Aeronautical University in Florida before decamping for Afghanistan. After being captured in Pakistan in 2002, he was sent to the Guantanamo Bay Naval Base in Cuba, where he remained for three years, in an eight-by-seven-foot jail cell, without ever being charged with a crime. Finally, in 2005, he was charged with a novel war crime, “conspiracy to commit murder by an unprivileged belligerent,” which translates roughly to: he planned to wage war against the U.S. while not being a part of a regular army. As the date of his arraignment grew closer, he’d refused to even meet with Kuebler. When he finally did, he tried to make the point stick. “He said to me, ‘Thank you for trying to help me, but I want to kill Americans. I want to kill you. So I don’t want you defending me.’”

Fair enough, Kuebler thought. Only one problem: “MCO 1,” President Bush’s executive order creating the commissions, required that every accused be represented by a military lawyer. Kuebler sat beside al Sharbi in an austere courtroom as the Saudi explained to a military judge why he did not want to be represented by Kuebler or any American. “Same circus,” he told the judge. “Different clown.” Kuebler sat there as the judge denied al Sharbi the right not to have a lawyer.

And indeed Kuebler felt it was a right. In American law, for as long as it has existed, legal representation has been a fiduciary duty, which is to say: you can’t “represent” someone who doesn’t want you to do so.

Kuebler learned about a colleague who had also been fired, only to be ordered by the judge to represent his non-client. He began to wonder just whom their representation was designed to benefit, if it was anything more than pretty packaging to sell the public on a game that was rigged. Now back on the job, Kuebler would be tasked with defending al Sharbi against a “war crime” that had never before existed in the history of the world by rebutting evidence some of which, for security reasons, al Sharbi wouldn’t be allowed to see, in a proceeding that al Sharbi, for certain portions, again for security reasons, wouldn’t even be allowed to attend.

Kuebler also had less philosophical, more pragmatic concerns — namely, his bar license, which included ethical rules that, in his belief, prohibited him from representing someone who had fired him (although the rule was far from clear).

Not at all sure which took precedent, MCO 1 or their bar rules (and yet reasonably confident that MCO 1 was unlawful), Kuebler and his colleague prepared to file a lawsuit in federal district court in an effort to find out the answer.

But then a different lawsuit rendered the question moot.

Salim Hamdan, suspected driver and bodyguard of Osama bin Laden, was another Gitmo detainee. He’d accepted his military lawyer, who filed a suit in federal court claiming that the commissions violated both the Constitution and the most basic rights required by the Geneva Conventions. In 2006, in Hamdan v. Rumsfeld, the Supreme Court agreed. The whole system was scrapped. Kuebler went back to being fired, al Sharbi to protesting the process. The war crimes charges against al Sharbi were dismissed (though he remains jailed in Gitmo, thirteen years later).

Kuebler’s work at the commissions up to this point had been an effort to stay fired, and yet people took notice of the scrappy stock of Gitmo defense attorneys and the commission frailties their work was uncovering. GQ profiled the al Sharbi case, Rolling Stone the Hamdan case.

Later in 2006 Congress passed the Military Commissions Act, a response to Hamdan v. Rumsfeld that brought the commission back. Kuebler was soon on a plane to Cuba, once again.

There he met Omar Khadr, a Canadian citizen whose father was a bona fide bad guy, but who himself was just fifteen when he was captured during a 2002 firefight in the Afghan city of Khost. Khadr, shot and temporarily blinded in the firefight, was accused of throwing a grenade that killed an Army Special Forces medic. Kuebler was assigned as his lead defense counsel.

Bill, Bear and Dawn out to dinner for Bear’s birthday. (Photo courtesy of Dawn Kuebler)
Bill, Bear and Dawn out to dinner for Bear’s birthday. (Photo courtesy of Dawn Kuebler)

Kuebler and his team were underwhelmed, to put it mildly, by the changes to the commissions process brought on by the Military Commissions Act. They also felt that Khadr’s circumstances — particularly his age and citizenship — presented new opportunities for how to fight the case. The team developed a little saying: “The uniform has legs.” While the team filed more than 100 motions in their effort to keep the case out of a commission courtroom, Kuebler took to the lectern, and the microphone, and the op-ed pages. He made calls to Canadian civil rights attorneys, who called on their own bar organizations to intervene on Khadr’s behalf. Kuebler’s message: The United States would never subject one of its citizens, let alone a teenager, to a proceeding like this. He eventually took that message to a committee of the Canadian parliament.

By 2009, Khadr still hadn’t been tried, and Kuebler felt that pressure on the prosecution was mounting, even if the prosecution was hitting back. “One defense counsel in particular,” the chief prosecutor said, “has habitually flouted the rules” and was “grossly distorting” and “fabricating information.”

Kuebler wasn’t exactly a trailblazer. “Follow the Hicks model” was another saying among Khadr’s defense team, named for alleged al Qaeda conspirator David Hicks, an Australian citizen who had been locked up in Gitmo. His defense counsel had successfully used the media and Australian government intervention to delay his client’s trial and generally put pressure on the prosecution — although not without risk. At one point, the same chief prosecutor had threatened Hicks’ lawyer with a court-martial for using contemptuous language toward the President, a military offense.

What had really changed for Kuebler was that the technique had grown, for many, tiresome. A new senior defense counsel — that is, a new boss for Kuebler — was brought in. He’d been selected for General, and he wanted Kuebler to play the Khadr case straight up, despite all the evidence that he shouldn’t.

Kuebler was once again torn between military orders and legal ethics. (A defense counsel’s duty is, according to the American Bar Association, to do whatever — within the law — most benefits the client, including calling out “inadequacies or injustices in the substantive or procedural law.”) Unsatisfied with Kuebler’s response to his order, the General-select fired him, only to be ordered by the military judge — in an irony that Kuebler would later take some amusement in recounting — that only the client can fire his attorney.

The General fired Kuebler anyway. “I did the perp walk,” Kuebler later said about the day of his ouster. He was given a box to pack his things. NCIS agents escorted him out of the building. And the next day, Kuebler said, “I was literally filing motions with the judge from my Yahoo account.”

The Judge Advocate General quickly intervened, and Kuebler was reinstated. But by this point his assignment at the commissions was coming to an end. He’d soon turn over Khadr’s defense to another attorney. Before he could do that, he had to get his performance evaluation from his boss, the one who tried to fire him. The Navy calls these evaluations “fitness reports,” and they’re a more valuable currency than the awards an officer wears on his chest. Kuebler’s was, as he called it, “the worst fitrep I have ever seen.” His boss, the Chief Defense Counsel, had buried him.

At around the same time, the British Columbia Civil Liberties Association awarded Kuebler their highest award. He was the first non-Canadian to ever win it.

As for Khadr, his new counsel quickly finalized a plea deal with prosecutors for an eight-year prison term.

Not exactly sure where to send Kuebler next, the Navy sent him off to get a Master of Laws degree in International Law. He graduated first in his class.

The American military has an inherent personnel problem. Like its brethren services, the Navy is a worldwide force, which means that while some of its people serve in San Diego or Hawaii, others are stationed in less desirable places, like Djibouti or Bahrain. To combat the problem, the Navy employs a logical solution: it creates an inverse relationship between a job’s popularity and its value to the organization. Find yourself for too long working in a place you wouldn’t mind calling home and you might want to consider that somewhere along the way your career went off the rails.

Thus the seemingly incongruous interpretation by some that Kuebler’s job teaching the Navy’s future leaders was more pillory than promotion. I taught at the Academy as a Lieutenant for three years; colleagues and I would often joke, with what in retrospect is a sickeningly stupid choice of words, “this is where we come to die.” By the time Kuebler got there, he had been up for promotion — to commander — twice since leaving the commissions. Both times he was passed over — as he would be several more times.

“I don’t know if I would have been promoted had I done things differently,” he told me once, only after I pressed him on the subject. “But I do think we made a difference for Khadr.”

His wife would later compare Kuebler’s work for Khadr and his teaching to his approach to imminent death: “Bill did whatever he felt he was called to do.” And yet Kuebler lacked the zeal of the righteous when it came to his own career, despite what his critics at the commissions might have said. As Khadr’s attorney, he called press conferences and spoke on radio shows. He filed a petition with the Supreme Court that led, in Boumediene v. Bush, to the court’s declaration that part of the Military Commissions Act was unconstitutional. Kuebler wrote and published a dozen op-eds excoriating the military commissions system. After he left Khadr’s defense, he never published another word. In fact, he once showed me an article he had in the works. The Naval Academy was embroiled in a sexual assault controversy. The article he had started was in defense of the military justice system. I gave him a few edits, not anything he needed, and encouraged him to go for it. But his new job only required him to teach. He put the article in a drawer and never mentioned it again.

As Kuebler lay dying in the hospital, Mrs. Kuebler witnessed, he developed an attachment with the story of Abraham. He discussed it with a hospital chaplain, though she isn’t sure exactly why. Abraham, the Genesis story goes, was already a believer, but God put him through a series of faith tests, one of which was to sacrifice his own son Isaac. Although terrified and torn between loyalties, Abraham passed, and God spared Isaac. Later, in the New Testament, long after his death, Abraham is held up at various points as an example of true faith.

When he got to Annapolis in 2013, Kuebler decided he’d dedicate most of his first class to what he called “the hierarchy of U.S. law,” in order to orient his students, he said, to the big picture. So on his first day teaching, Kuebler moved on from his biographical sketch to a few more slides. On one of them, bullet point after indented bullet point descended the screen like a stairway. Kuebler pointed to the bottom bullet and worked his way up, explaining the progression in a rhythmic staccato, like the clacking of a boot as it ascends each step. “Military orders, federal statutes, the Constitution: each one is bound by the dictates of the one above it,” he said. The same on the next slide, “trial courts, appellate courts, the Supreme Court.”

In other words, The Law as Order. That was Kuebler’s Lesson One. It was merely an intro but one for which he must have seen standalone value. That’s because the notion of order — which a few years earlier, in another context and for another purpose, he might have wagged a finger and accusingly called the “rule of law” — not only puts us in our place, but assures us that that place is secure, and that any movement therefrom is dictated by its terms, and nobody else’s.

Bill Kuebler’s funeral this past July. (Photo courtesy of U.S. Naval Academy)
Bill Kuebler’s funeral this past July. (Photo courtesy of U.S. Naval Academy)

Kuebler had one last slide, a citation to a federal law: 5 U.S.C. section 3331. He asked aloud whether any of the students knew the law’s contents. They hadn’t a clue. With another click of the mouse, it flashed on the screen: the text of the oath of office, the same one his students would take on graduation day, the same one he took more than a decade earlier.

“Your oath” he said, pausing to let the words sink in, “really only requires you to do one thing.” A few choice words on the screen were highlighted in red. He read them aloud, slowly: “Swear that you will support and defend the Constitution of the United States.”

The words invigorated him, it seemed. Kuebler was just warming up, but his time was running out. So he offered them a little teaser before the class bell rang. “This class, hope-ful-ly,” Kuebler shrugged and extended the word as if to signal, although really it’s anybody’s guess, “will give you a better idea of what that oath really means.”