Big Law Defends Guantanamo Lawyers

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.

Comments

[Gene Hutchins]

Perhaps I am just Neanderthal about military and now 'asymmetrical conflicts'.
The Geneva Convention to me a layman applies to the uniformed troops of a Sovereign Nation entity. It does NOT APPLY to the 'outlaws, 'brigands', 'pirates'..the people at GITMO, one like my sone captured in Iraq. It does not apply to them.

For the three "Al Queda In Iraq" [US military acronym is AQIR} he captured [they were loading a vehicle with explosives; were themselves ladened with body charges9 the fuses weren't set0 and among the items they were going destrou was the satellite phone taken from a KIA US soldier, two laptop hard drives. Incident occured 4/14/08, G/4/6 Cavalry]

The US troops could have killed them on the spot..they were in civilian clothes and had spent the past 10 months presenting themselves as local national merchants.

War between organized nations is bad enought.. but when an independent transnational organization that is functioning like guerillas and other parties not protected by the Geneva Conventioon.. Field Commanders can do with them as they wish, in my humble layman Neanderthal opinion.
Gene Hutchins VietNam Vet 1968- 1971

[Mike Coleman]

I'm not a lawyer but I've seen a lot of one lately. As a former member of the USAF, we were taught a lot about the Geneva Convention and the ramifications of breaking the rules. We were taught that the GC was as every bit as American law as anything in the states. We were also taught that it was not about them, it was about US. As Americans we were taught to be the good guys. Now we act like a child that someone stubbed their toe. I've been around a long time and I think that the lawyers that went to GITMO did a great service in the name of fair play. Americans have also had that sense of fair play and for us to break teh rule to suit us doesn't feel right to a lot of people. The memos of Yoo, Bradbury was a low point in American Law and I hope that some of you are doing things to change it.

[James E. Coleman, Jr.]

One of the most important lessons I learned as a young lawyer working for Wilmer, Cutler & Pickering was the importance of private lawyers defending the rights of unpopular clients who otherwise might not receive adequate representation. We were encouraged to take on such representation and not wait to see if others might do so. That is the highest tradition of our profession, and was one of the foundational values of my firm.

As a law professor in 2006, I spoke out against the unfair prosecution of three white Duke students falsely accused of sexually assaulting a black dancer. In the beginning, I was one of the first and one of the few lawyers of any political stripe to do so. At the same time, I also was criticizing prosecutors and judges in my state for their indifference toward poor defendants and defendants of color.

It is a dangerous game to suggest that a lawyer who defends the rights of a particular client is opposed to the rights of others. Lawyers who engage in such attacks are unworthy of their profession and do the public a great disservice.

[Charles H. Carpenter]

While I was at Pepper Hamilton, working on GTMO habeas litigation, we were proud to represent a Marine in his proceeding. I'm quite sure that any of my colleagues in the GTMO bar would have done the same.

United States v. Nazario (2008) involved a former Marine Staff Sergeant faced with charges that he committed manslaughter in Fallujah in 2004, during one of the fiercest battles of the Iraq war. It was the first case in which a former member of the U.S. Armed Forces was tried in a civilian criminal court, as opposed to a military court martial, for allegedly committing a crime during combat operations. A civilian jury in the U.S. District Court for the Central District of California acquitted Nazario of all charges. The case tested the power and scope of the Military Extraterritorial Jurisdiction Act of 2000, and the acquittal underscores flaws in the law that could lead to legislative changes to the Act.

[JT]

"I would feel better about these guys if they were just as eager to defend American soldiers accused of abusing detainees."

Who says they're not? Have any American soldiers accused of crimes lacked legal representation? I don't think you can name a single example, but please do if you can.

[Law Grad]

Lawyers should take more personal responsibility for the agendas and causes they advocate. Attorneys who choose to represent credit card companies in certain tactics that are harmful to consumers should question whether they truly approve of the behavior of their clients. Attorneys who represent companies polluting water we drink or air we breath should likewise question when the agendas of their clients go too far. Simply because a talented lawyer can successfully argue that conduct is legal doesn't exhaust all moral or ethical considerations.

That said, many lawyers are willing to represent clients that may be unpopular. Representing a client does not mean that lawyer personally endorses every activity that client engages in, just as doing business with a customer does not mean that business approves of everything the customer does. Lawyers, should, however take more personal responsibility for the consequences to others when they choose to provide professional services to clients.

[Brian D. Liddicoat]

I would feel better about these guys if they were just as eager to defend American soldiers accused of abusing detainees. Both the American soldier and the al-Qaeda member can be represented very adequately by military attorneys. Yet our friends at Sidley Austin only seem interested in representing people who have openly confessed to trying to kill as many Americans as possible. You think common American soldiers can afford to hire a big-name private lawyer when they're accused of hurting a PoW?