President Obama recently announced that Guantanamo Bay will not be closing in January – reneging on a promise he had made to close the detention center within a year of his taking office. This did not come as a surprise to the many lawyers who have provided counsel to the detainees in Cuba.
At a panel discussion about the Guantanamo lawyers, Ramzi Kassem — a City University of New York law professor representing one of the current detainees – said: “What matters more than when [the closing] happens is what happens to the  men still there.”
Hundreds of attorneys have been working for years to ensure habeas corpus for the over 800 men who have been detained at Guantanamo Bay. The lawyers who have assembled to represent detainees come from many walks of law, from human rights advocates to law school professors to Biglaw partners. Seton Hall law professor Mark Denbeaux and civil rights attorney Jonathan Hafetz have collected the stories of 113 of the Guantanamo lawyers, law students, and translators for The Guantanamo Lawyers: Inside a Prison, Outside the Law.
There is a rainbow of Biglaw firms involved in Guantanamo. Among the firms working there (with lawyers who contributed to the book) are WilmerHale, King & Spalding, Pillsbury Winthrop, Jenner & Block, Pepper Hamilton, Dorsey & Whitney, Baker Hostetler, Paul Weiss, Perkins Coie, Reed Smith, Mayer Brown, MoFo, Weil Gotshal, Hunton & Williams, Covington, Dechert, Bingham McCutchen, and Shearman & Sterling. A heart-warming tale among the horrors of the book was two Allen & Overy attorneys who fell in love and married after meeting while representing a 17-year-old Yemeni detainee.
Both Denbeaux and Hafetz point to Thomas Wilner of Shearman & Sterling as one of the most important Gitmo lawyers. “He cleared the way for the others,” said Denbeaux. “Shearman was the central [Biglaw] firm in getting it all going.”
More about Wilner, and tales from other Biglaw Guantanamo counsel, after the jump.
Jonathan Hafetz explained that Shearman was doing work for the government of Kuwait. When some Kuwaiti men disappeared after being detained by U.S. government, Shearman’s clients asked for assistance in finding out what happened to them. “Tom Wilner made the first push. He was the greatest force behind this,” said Hafetz. “When Shearman resisted getting involved, he threatened to leave the firm.”
Then-associate Kristine Huskey writes in the book:
Less than six months after 9/11, Tim Wilner, a partner at Shearman, and my mentor, colleague and good friend, received a call, an inquiry from abroad: Would we take on a matter regarding Kuwaiti citizens who had gone abroad to do humanitarian work and who now might be in the custody of the United States?
Wilner served as counsel of record to Guantanamo detainees in Rasul v. Bush — in which the Supreme Court gave detainees the right to habeas corpus — and in Boumediene v. Bush — in which the Supreme Court held that the Guantanamo detainees’ right to habeas corpus is protected by the Constitution.
Biglaw firms did experience blowback for getting involved. In 2007, a Pentagon official, Cully Stimson, urged corporate clients to make their law firms choose between “representing terrorists and representing reputable firms.” Those attacks continue, as pointed out by Julian Sanchez at True/Slant responding to an article in Human Events that leads with this paragraph:
Some of the nation’s wealthiest and most powerful law firms have donated hundreds of millions of dollars in free legal services to terror suspects at the Guantanamo Bay prison. Their work, bolstered by left-wing activists groups, has helped to free, or force the transfer, of hundreds of al Qaeda suspects to third countries. Some have gone back to terrorism and the job of trying to kill Americans.
The article ends with a list – plagued with misspellings — of the ten largest firms that have provided pro bono counsel to the detainees.
“It was a human rights catastrophe and a disaster for this nation,” said Jonathan Hafetz at a book launch panel discussion at NYU Law School on November 10. “The book is not intended to glorify the lawyers; it’s intended to explain Guantanamo.”
“Lawyers are raised to represent other people’s movements, but the 600 to 700 lawyers involved with Guantanamo Bay really started a movement,” added Michael Ratner, the president for the Center of Constitutional Rights and another contributor to the book.
Prominent among those who “started this movement” were Biglaw types. Then-Covington & Burling partner David Remes famously stripped down to his skivvies to illustrate the conditions for detainees at Gitmo. Jenner & Block partner Thomas Sullivan testified before the U.S. Senate Judiciary Committee about the habeas corpus rights from detainees
The Guantanamo Lawyers is a series of personal accounts assembled to create an oral history of the place – the series of names without affiliations and disjointed essays make for a slightly frustrating reading experience — but it fully conveys the absurdity of trying to achieve justice there. Their clients were shackled to the floor during all visits. Notes were considered classified and were sent to secure facilities in Crystal City, Virginia, making it difficult for non-D.C. based lawyers to review them. Seeing and talking to clients involved two days of traveling and a security clearance.
I asked Mark Denbeaux about the biggest challenge for corporate lawyers involved with Gitmo. “The other lawyers involved, like the death penalty lawyers, are accustomed to the government acting badly,” replied Denbeaux. “It was shocking for the corporate lawyers though to see how the law can be twisted. They were almost radicalized in their views.”
Indeed, several left Biglaw after representing Gitmo detainees. Remes left Covington to found Appeal for Justice, a nonprofit human rights and civil liberties litigation firm. Kristine Huskey left Shearman & Sterling to become the co-director of the National Security Clinic at UT Law School. Tina Monshipour Foster left Clifford Chance to become the executive director of the International Justice Network.
The book is full of frustrated accounts from Biglaw types. Tom Sullivan of Jenner & Block writes:
My impression of the prisoners I’ve encountered at Guantanamo is shared by my partners who have visited our clients at the prison, as well as by the other fine lawyers for prisoners with whom we’ve spoken. We believe most of these men are not and never were criminals or terrorists, were not connected with Al Qaeda, should not have been imprisoned in the first place, and if sent home would resume peaceful, productive lives, albeit damaged by the awful experiences they have endured during the past seven years.
Many detainees wound up in Guantanamo thanks to $5,000 bounties offered by the U.S. military.
Julia Tarver Mason, a partner at Paul Weiss, writes:
If you had told me ten years ago that our government would be deliberately holding people in captivity on a naval base outside the U.S. mainland so that we could do whatever we wanted to them without the intervention of U.S. courts, I would have told you that you had watched too many miniseries on T.V. If you had told me that the government would have refused even to release the names of those human beings so their families would know where they were, I would have told you to stop reading all those Tim Clancy novels. Sadly, though, this isn’t fiction. This is what is happening today, in the country I love so much.
Joshua Colangelo-Bryan of Dorsey & Whitney writes about his first meeting with his detainee client, clients who had been described by Donald Rumsfeld as the “most dangerous, best-trained vicious killers on the face of the earth.” He was relieved when his client turned out to be a smiling, five-foot-six, 140 pound Bahraini detainee:
“I am very grateful to you and your law firm,” [Jumah, the detainee] said.
“You’re welcome, but we believe that we’re obliged to provide legal help to people who would not otherwise have it. We call it pro bono work, which means that we aren’t paid for what we do.” For a minute, I felt like I was trying to sell an idealistic law student on the idea of working for my firm because it had a social conscience. I felt a flush of pride, reflecting on the fact that I was actually telling the truth.
Colangelo-Bryan goes on to recount Jumah asking about the origin of his name.
“Joshua is a Jewish name. Are you Jewish?”
[Colangelo-Bryan] worries he’s about to experience his first brush with anti-Semitism among the detainees. But when he tells Jumah he’s not Jewish, Jumah is disappointed.
“Oh,” he said, sounding slightly disappointed, “I heard the best lawyers were Jewish.”
Quickly, and obviously for my benefit, he added, “But I’m sure you’re good too.”
There are many other Biglaw tales of frustration in the book:
The book is unsettling, but it’s inspiring to see these pro bono efforts by Biglaw to make sure the rule of law applies to detainees, many of whom appear to be innocent.
Mayer Brown is hosting a discussion about the book at their D.C. office on December 3. On the panel will be Jonathan Hafetz, ACLU National Security Project and co-editor of The Guantánamo Lawyers; Agnieszka Fryszman, Cohen Milstein Sellers & Toll PLLC; Gary Isaac, Mayer Brown LLP; Allison Lefrak, Reed Smith LLP; and Thomas Wilner, Shearman & Sterling LLP.
Obama: Guantanamo won’t close on time [Washington Post]
How Dare They Represent the Innocent? [True/Slant]
The Al-Qaeda Bar [Human Events]
A Discussion of The Guantánamo Lawyers: Inside a Prison Outside the Law [Event announcement]