That’s the question essentially posed in a barn-burning op-ed piece in yesterday’s Wall Street Journal, written by Debra Burlingame and Thomas Joscelyn. Burlingame is the sister of Charles Burlingame III, pilot of the American Airlines plane that was crashed at the Pentagon on September 11; Joscelyn is a senior fellow at the Foundation for Defense of Democracies.
Burlingame and Joscelyn begin their opinion piece, Gitmo’s Indefensible Lawyers, by discussing Paul Weiss partner Julia Tarver Mason (who, by the way, is rather attractive; she looks like a cross between Kristin Davis, aka Charlotte from Sex and the City, and Andie MacDowell). The WSJ op-ed writers claim that Mason improperly used “legal mail” — “privileged lawyer-client communications that are exempt from screening by security personnel” — to provide one of her clients, a detainee at Guantanamo Bay, with inflammatory propaganda from Amnesty International (a brochure, written in Arabic, depicting alleged abuse against Arabs and Muslims by Americans).
Writes one of several ATL readers who brought this article to our attention:
Wow. I didn’t know that Paul Weiss was involved in such potentially dubious acts.
But did Paul Weiss actually do anything wrong? Let’s discuss….
After Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, banned Paul Weiss attorneys from Gitmo, the firm fired back. They filed suit against the government, challenging the decision to bar PW lawyers from Guantanamo, and arguing that the Amnesty brochure was a “report” that was “directly related” to representing their clients.
Burlingame and Joscelyn offer a more sinister spin:
[T]heir bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn’t remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge
One can see both sides here. On the one hand, giving clients a publicly-available brochure produced by a major human-rights organization doesn’t seem that problematic. On the other hand, it may have violated a federal judge’s order:
“[L]egal mail” is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even “legal mail,” according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.
The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security.
One can then argue, of course, that the protective order was too restrictive. Lawyers who have represented Guantanamo Bay detainees have talked before about the need to build trust with their clients, sometimes by discussing news events with them.
(But if the Paul Weiss lawyers had issues with the order, perhaps they should have taken them up with Judge Green. And the Amnesty brochure may have been just the type of communication the protective order was aimed at. According to an Islamic cultural adviser to Major General Hood, the publication “was highly inflammatory” and “would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp.”)
The WSJ piece — which, it should be noted, ran in the newspaper’s famously conservative opinion pages, not as news — has more to say about Julia Tarver Mason, the Paul Weiss litigatrix:
Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason’s advocacy “resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees.”
At the same time, Burlingame and Joscelyn make the point that Mason was just one of many Biglaw lawyers defending Gitmo detainees:
[T]he unstated purpose [of one of Paul Weiss’s court filings] was to demonstrate something even more significant to the government’s lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.
A David-versus-Goliath complaint about lawyers burying their opponents in paper is usually made by liberals describing big corporations out to crush “little guy” plaintiffs. In this case, interestingly enough, the argument is being made by conservatives — with the U.S. government and military cast as the “little guy.”
So what happened in Paul Weiss’s case? The government and the firm reached a settlement, and Mason and her colleagues were allowed to resume their Gitmo trips in May 2006.
How does Julia Tarver Mason view her Guantanamo work? She did not respond to telephone calls and emails from the writers of the WSJ op-ed (and a firm spokesperson reached by ATL declined to comment). But in The Guantanamo Lawyers — a book about representing the Gitmo detainees, which we reviewed here — Mason wrote:
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 Tom Clancy novels. Sadly, though, this isn’t fiction. This is what is happening today, in the country I love so much.
Readers, what do you think? Feel free to read the complete WSJ piece — as well as our earlier write-up of the Guantanamo Lawyers book, which presents a contrasting perspective on representing detainees — and voice your views, in the comments.
Gitmo’s Indefensible Lawyers [Wall Street Journal]
Earlier: Tales from Gitmo: The Guantanamo Lawyers