By Mike Scarcella and David Ingram
The intensifying flap over Justice Department lawyers who have advocated for Guantanamo Bay detainees is spilling over to Big Law, where some firm leaders are fighting back against the criticism.
The Justice Department in the past couple of weeks has come under fire from a conservative group and Republican lawmakers for hiring lawyers who represented Guantanamo Bay detainees while in private practice. The controversy ramped up after the Justice Department refused to name the lawyers. Then the conservative Keep America Safe posted a YouTube video questioning the allegiance of the DOJ lawyers and giving the attorneys a name—“The Al Qaeda Seven.”
The political talk shows are buzzing about ethics and loyalty. Lawyers are writing opinion pieces. One Virginia congressman fired off a letter to Attorney General Eric Holder Jr. that compared Gitmo lawyers to attorneys for the mafia. And in the middle of it all are a group of former private practitioners in Big Law at firms that include Wilmer Cutler Pickering Hale and Dorr, Morrison & Foerster, O’Melveny & Myers and Sidley Austin.
“From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm’s commitment to that cause,” said Brian Brooks, managing partner of O’Melveny & Myers’ Washington office. “If the private bar doesn’t step up and show that kind of courage, then I think our whole system of justice is in question.”
Brooks, who describes himself as a conservative, said, “There’s a consensus from left to right that law and justice need to be insulated from politics.” Karl Thompson, who was a counsel with O’Melveny, was part of the team that defended Omar Khadr, the Canadian citizen who was 15 years old when he was transferred to Guantanamo in 2002.
The D.C. managing partner of Sidley Austin, Carter Phillips, said he feels "horrible" that a former partner, Joseph Guerra, who is now principal deputy associate attorney general, is taking heat for his participation on a U.S. Supreme Court brief in a detainee case. (Phillips, a former assistant solicitor general in the Reagan administration, was also on the brief.)
“I always think it is an outrage when people attack the lawyers for whom they represent,” Phillips said. “To me it’s unfortunate that we’re talking about wonderful talent, relatively young lawyers who ... are now being pilloried for something that they ought to have been cheered for.”
Whether or not the cause is popular, Phillips said, "it’s our responsibility to make sure that every side in a litigated matter is adequately represented. If that means personal sacrifice of one sort or another, that’s the price you pay.”
Michael DeSanctis, managing partner of Jenner & Block’s Washington office, said he expects the criticism to have “no effect whatsoever” on law firms. That’s because pro bono work is so ingrained at firms, and because the lawyers’ advocacy for Guantanamo detainees is already so well-known.
“This is not a secret part of their background. This is something that was out in the open,” DeSanctis said. “It seems like such old news, and such public news.”
Still, some of the firms that have been most involved in Guantanamo case have chosen to remain silent for now. The leaders of both Morrison & Foerster and Wilmer Cutler Pickering Hale and Dorr declined to comment on the controversy. Covington & Burling, which has also been active, did not respond to a request for comment.
Thomas Milch, chair of Arnold & Porter, said he is proud to work with lawyers who have advocated on behalf of detainees.
“I really do salute the private lawyers who stepped up to represent the Guantanamo detainees,” Milch said. “It’s an act in the best traditions of the profession, and I salute even more the lawyers who then went in to the government."
The debate is reminiscent of the controversy in 2007 when Bush administration official Cully Stimson resigned for his public remarks to a radio station. Stimson told a radio station that corporate CEOs should not work with law firms that advocate for Guantanamo detainees.
Amid the current firestorm, an opinion piece in Legal Times is getting a lot of play around the country. Gibson, Dunn & Crutcher partner Theodore Olson and Neal Katyal, then a Georgetown University Law Center professor, co-authored a critique of Stimson’s comments—and defended pro bono representation of both the popular and unpopular.
DOJ officials say all the talk now is pure politics divorced from reality. A DOJ spokesman, Matt Miller, defended the department’s refusal to name political hires who’d advocated for Guantanamo detainees while in private practice, saying: “We will not participate in an attempt to drag people’s names through the mud for political purposes.”
In the ranks of Big Law, the debate includes one about transparency in government.
Steven Schulman, the partner in charge of Akin Gump Strauss Hauer & Feld’s pro bono efforts, said the Keep America Safe video and the backlash “is a political issue about the public’s right to know,” and that he doesn’t necessarily disagree that Americans have the right to know who Justice Department lawyers have represented in the past, as long as that doesn’t violate client confidentiality.
But “there needs to be a discussion. Just because you represent a client doesn’t mean you agree with anything they’ve done,” Schulman said.
Gibson, Dunn & Crutcher partner Miguel Estrada, a former Bush administration judicial nominee, said in an e-mail that the fuss about pro bono work isn’t likely to deter lawyers from donating their time to causes they believe in.
Estrada said there is no reason the public should not know the identities of lawyers who donated time to work on Guantanamo issues.
“It is also fair to conclude that those lawyers personally favor giving greater procedural protections to people who may want to do us harm,” Estrada wrote. “But at the same time it is not necessarily fair to conclude that they cannot put their personal preferences aside in working for the government. That depends on the individual involved. I suspect some do and others don’t.”
No DOJ political appointees have allowed prior affiliation “to interfere with the vital task of protecting national security, and any suggestion to the contrary is absolutely false,” Assistant Attorney General Ronald Weich said in a Feb. 18 letter to Congressional Republicans.
Weich said that of the 50 largest firms in the United States, at least 34 have either represented detainees or filed amicus briefs in support of detainees. This category includes the former law firms of Holder (Covington), Acting Deputy Attorney General Gary Grindler (King & Spalding), Associate Attorney General Thomas Perrelli (Jenner & Block) and assistant attorneys general Lanny Breuer (Covington) and Tony West (Morrison & Foerster).
Carrie Levine contributed reporting to this article.