Gitmo Lawyers: Follow the Money

I hope Deborah Burlingame's piece in the Wall Street Journal last week is still getting read. It attracted a lot of comment in the blogosphere, but what people haven't realized is how it connects up with another important story from January. It shows that an official in charge of Gitmo was hard done by, and he's owed an apology--by me, though much more by some more important others.

Back in January, news broke about some remarks by Charles Stimson, then deputy assistant secretary of defense for detainee affairs--i.e. the guy in charge of Gitmo. Stimson explained to visiting WSJ reporter Rob Pollock that many of the best law firms in the country had rushed in to represent the Gitmo detainees, and he commented thusly:

A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms: Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb; and Blank Rome are among the marquee names.

A senior U.S. official I spoke to [later revealed to be Stimson--Seedub] speculates that this information might cause something of scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500. "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined.

Guest blogging at Michelle Malkin's site, I concurred:

Look, of course these guys ought to have lawyers. But there's nothing that says they deserve the best lawyers in the country. Why they have top-flight attorneys falling all over themselves to represent them, though, I've no idea. It's almost like it's some sort of tony corporate status symbol to defend a terrorist...but the result of that mentality is that the Gitmo prisoners end up getting far better legal representation than, say, the average out-of-luck schlub with a court-appointed lawyer on a drunk-driving beef.

But the scandal was just getting warmed up, because as soon as Stimson's name was released, the ABA fired back at him and defended their rush to defend Gitmo's prisoners. Then Stimson went even further in a radio interview:

When asked in the radio interview who was paying for the legal representation, Mr. Stimson replied: “It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.”

Lawyers expressed outrage at that, asserting that they are not being paid and that Mr. Stimson had tried to suggest they were by innuendo. Of the approximately 500 lawyers coordinated by the Center for Constitutional Rights, no one is being paid, Mr. Ratner said. One Washington law firm, Shearman & Sterling, which has represented Kuwaiti detainees, has received money from the families of the prisoners, but Thomas Wilner, a lawyer there, said they had donated all of it to charities related to the September 2001 terrorist attacks.

Dangerous words, yes--but not, as we will see, unsupported. Nonetheless, in the resulting firestorm, the administration decided to cut Stimson loose. He resigned last month. (There was much debate about the appropriateness of his resignation in NRO's Corner.)

Enter Debra Burlingame. Turns out it was,effectively, the Kuwaiti government, a major Shearman client, funnelling money through the detainees' families.

Unlike the many lawyers who later joined in the litigation on a pro bono basis, Shearman & Sterling was handsomely paid. Mr. Wilner has repeatedly stated that the detainees' families insisted on paying Shearman & Sterling for its services and that the fees it earned have been donated to an unspecified 9/11-related charity. According to one news report, the families had spent $2 million in legal fees by mid-2004. In truth, Kuwaiti officials confirmed that the government was footing the bills.

That's not all. Burlingame details how Shearman worked to lobby Congress on its Gitmo policy:

Shearman & Sterling did far more than just write legal briefs and shuttle down to Gitmo to conduct interviews about alleged torture for the BBC. In addition to its legal services, the firm registered as an agent of a foreign principal under the Foreign Agents Registration Act of 1938 (FARA) as well as the Lobbying Disclosure Act of 1995 (LDA) to press the Kuwaiti detainees' cause on Capitol Hill. Shearman reported $749,980 in lobbying fees under FARA for one six-month period in 2005 and another $200,000 under the LDA over a one-year period between 2005 and 2006. Those are the precise time periods when Congress was engaged in intense debates over the Detainee Treatment Act and the Military Commissions Act, legislation which Shearman & Sterling and its Kuwaiti paymasters hoped would pave the way for shutting down Guantanamo permanently and setting their clients free.

Wow. Kuwait really really cares about these guys, huh? There's more about their anti-Gitmo media blitz in Burlingame's must-read article. And it all casts the Stimson matter in an entirely new light. At another post at MM.com, I said that

Where Stimson goes over the line is, I think, on the implication of whether the pro-bono lawyers are actually getting paid for their work. That's not the kind of accusation you throw around without some evidence to back it up. As I said above, it's a good career move for individual lawyers, and it doesn't require a secret financial motivation to explain it.

Now it sounds like Stimson's charges had some merit. It sounds like he might need his job back. And it sounds like I owe him an apology as well.

But there's more. Shearman isn't the only law firm on that list with a major Middle Eastern governmental client. As I noted in that January 14th post, one of the Gitmo pro-bono firms, Wilmer Cutler Pickering Hale & Dorr, is defending a member of the Saudi government, Prince Mohammed al Faisal, from a Trillion-with-a-T dollar lawsuit brought by the 9-11 families against the Saudi government.

Which makes their "pro bono" claim sound a little less altruistic, don't you think?

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One point I want to make again: I think these detainees should have lawyers, and I don't necessarily judge any individual lawyer's decision to do pro-bono work for Gitmo detainees as harmful, unless they're in the Lynne Stewart school of advocacy. Here's a chunk of what I said on Jan. 14th:

All lawyers are required to perform a certain number of hours--usually around fifty--of pro bono work each year. Where to do that work is up to the lawyer. \...A lawyer could fulfill his requirement down at the battered women's shelter, helping abused women get VPO's to restrain the unchivalrous louts who worked them over. He could defend poor people who risk losing their property to a rapacious municipality emboldened by the Kelo case into pushing the limits of eminent domain. He could help low-income seniors prepare their wills. He could defend a penniless musician in an intellectual property dispute against a giant corporation.

But none of that is quite as edgy and sexy as defending terrorists in Gitmo. That'll get your name in the paper (well, not the New York Times, who unlike the WSJ didn't actually give the names of the firms involved) and start a little buzz at the right cocktail parties. That'll get you invited to speak at the local ACLU chapter--maybe even a guest lecture at the local law school or your brief cited in a law review article. You might get to write op-eds in the big papers (like this guy) or go on TV and talk about how those nasty guards at Gitmo slapped your client on the tummy. It's actually a pretty savvy career move, defending a terrorist.

Let me be clear. I don't necessarily begrudge any individual lawyer's decision to do pro bono work with the Gitmo detainees. What dismays me is, in the aggregate, the rush of so many of our "best and brightest" lawyers from so many top firms to defend monsters like Khaled Sheikh Mohammed. ...[H]ow many of these firms sent large delegations to defend accused Marine Lt. Ilario Pantano from his charges? (A casual survey of the pro bono information on the websites of the firms the WSJ listed suggests that if they have been helping out the armed forces, they're not bragging about it--though some of them are talking up their work at Gitmo.)

I said necessarily; the fact is we can make moral judgments about who (and why) a lawyer chooses to represent. If a guy is a "mob lawyer", for instance, acting as a consigliere to a crime family, of course we can draw inferences about his character and make judgments about him. And the big firms that send these guys want us--well, potential clients, anyway--to judge them:

[W]hy is the legal establishment so troubled that Stimson, himself a lawyer, suggests that there is a bit of an unseemly rush into the Gitmo-lawyer limelight? After all, these firms all brag about their commitment to pro bono work. It's supposed to generate good publicity for the law firm. Aren't the firms' corporate clients smart enough to make up their own minds about the firms' pro bono record, just like they would evaluate their paid work?

And isn't it even possible that defending Gitmo inmates may be adverse to a corporate client's interests? (E.g., a corporate client that is trying to secure a contract to ship goods to the Guantanamo Bay naval base?)

If I were with Transatlantic Lines, Inc. and had hired Blank, Rome to defend my contract to ship goods to Gitmo, and then Blank Rome started working to shut Gitmo down, I would file a malpractice claim.

Speaking of which, the San Francisco Bar Association has requested the State Bar of California pursue an ethics complaint against Stimson in an effort to punish him for speaking up. On the off-chance that any talk-show bookers or media types happen by this post, you might consider contacting Mr. Stimson and offering him a chance to defend himself.

For another very able defense of Stimson--and a blast at Bar Association elitism--see Andy McCarthy.