Special Report
Pro-Democratic Bono
What motivated high-powered Washington lawyers to represent the Gitmo terrorists?
As an associate and then partner at Arnold & Porter D.C. (Aug. 1992–Jan. 2006) who had many pro bono clients — National Endowment for Democracy, U.S. Committee for Human Rights in North Korea, a refugee relief effort in Kosovo, a pro-democracy-in-Iran foundation, U St. Business & Arts Coalition, D.C. Regulatory Reform Commission, minority indigent crime victims, minority indigent convicts, several Ph.D. scientists seeking the right to advocate for “intelligent design,” the Washington Legal Foundation (in an open-government suit against the U.S. Sentencing Commission), the 1993 Clinton administration transition, the first successful effort to win a Presidential pardon issued posthumously (for the first black graduate of West Point, Lt. Henry Flipper, USMA 1877), the International Sculpture Center, Source Theater (D.C.), and others — and as one of the few Republicans at Arnold & Porter, I have been following with interest the arguments advanced as the motivations for lawyers to represent the Gitmo terrorists.
At Arnold & Porter, there is a “pro bono committee” and any partner seeking to pursue a pro bono matter must make the case to that committee why the client and the matter are in the public interest and why the firm will benefit from taking on the matter (associates do not have the authority to propose a pro bono client). During my six years and six days as a partner I proposed perhaps a dozen such matters, and in every case the pro bono committee approved — even as to the several “intelligent design” matters I brought in that proved to be very unpopular with the vast majority of the lawyers, partners in particular, at the firm. Approval was also required from the “billing and intake” committee, which would take into account the estimated out-of-pocket cash expense as well as the estimated lawyer time. This committee also approved all of my proposals.
I think it likely that the large, prominent law firms engaged in the “Gitmo terrorist” cases also have similar review and approval procedures for pro bono cases, particularly where the cases involve cash-out-of-pocket expenses. And thus the decision to represent the Gitmo terrorists was, in each case, a decision of the leaders of the firms involved, and not merely of the individual lawyers.
The most expensive of my pro bono cases, from a cash-out-of-pocket perspective, was a challenge to the sentence of a convicted bank robber, Ollin Renaye Crawford; this included the cost of trial transcripts and trips to the maximum-security prison in Virginia where she was held. (The conviction was in 1985; the sentence was for 70 years; I got the case in 2003, because my secretary was a childhood friend of Ms. Crawford and had been an alibi witness at her criminal trial. Our complaint was that the Virginia prison authorities, after her conviction, had incorrectly ruled Ms. Crawford ineligible for consideration for parole.) This effort was ultimately successful after I left the firm (whereupon the firm’s active involvement, though not mine, ended), not via a court order (the Virginia Supreme Court rejected us on grounds that the issue had been raised in a prior habeas corpus filing), but because Virginia Gov. Tim Kaine in March 2008 issued a conditional pardon of the balance of her sentence.
The Gitmo Terrorist cases, far more so than in my Crawford case, must have required substantial out-of-pocket expenses, for travel to Cuba and for transcripts and documents, as well as for on-line legal research.
Why does a lawyer take pro bono the case of an incarcerated individual? For me in the Crawford case — and the stated reason in every case — the reason is the lawyer’s belief that the prisoner either is wrongfully held, or wrongfully treated while held.
You can tell from what the lawyer does — and in particular, does not do — as to whether this is the only motivation. In the Crawford case, I did not denigrate the Virginia trial courts of 1985; I did not condemn the conditions in the maximum-security Fluvanna women’s prison in Troy, Virginia; I did not condemn the parole board; I did not seek to make my client, or any other inmate, angry with the security guards at the prison or with the warden. In short, I did not use the Crawford case as a means to advance any partisan political interest either of myself, or of the overwhelmingly Democratic Party-aligned partnership of my firm.
In my judgment, examining the reported activities of the Gitmo Terrorist lawyers, some of the things they did go beyond what was necessary and appropriate to protect the rights of the incarcerated, and establish that they acted pursuant to an additional, and political, motivation. In my opinion, that political motivation was not to advance radical Islam, or to find America wrong, wrong, wrong. Instead, in my opinion, derived from my experience as one of the few Republicans in an overwhelmingly Democratic law firm, the motivation was a desire to undermine the public reputation of the judgment and good-heartedness of the Republican political leaders who were in charge of the government at the time of 9/11 and after, who established the Gitmo incarceration facility, and who managed it until January 20, 2009. To take the recent Wall Street Journal report as an example, encouraging disruptions inside Gitmo would make the Republican administration look incompetent. This, I submit, and not a desire to aid the radical Islamic movement, was the motivation for introducing into Gitmo the inflammatory documents the Journal describes.
I know that big law firms establish political neutrality as a matter of organizational policy, but this cannot and does not override what really matters, which is the affiliations and interests of the partners as individuals. Every associate, and every partner who does not have a personal, portable client base, can survive in a firm only by being invited to join in the matters of the partners who have the clients. Every associate, and every client-less partner, must win the friendliness of those partners. Taking on a pro bono case and running it in a manner that advances the political interests of those partners is a good way to get invited onto those partners’ cases. Taking on a pro bono case and running it in a manner that disrupts the political interests of those partners is a good way to be cut out of all paying cases, and is a fast-track to leaving the firm. I experienced this personally by taking on the “intelligent design” matters; invitations for me to join in paying cases dried up, and my cash-earning billable hours declined. I knew this would happen when I proposed those matters to the firm; but a matter of conscience ought not be swayed by such concerns.
Are the most powerful partners at the firms that represented the Gitmo Terrorists aligned with the Democratic Party? I think that if the subject can be researched, the result would be that they are. It is not just a matter of whether the particular partner is active in that party. It is a question of the ties of friendship and family pull in the direction of that one party. Are the partner’s children hoping to obtain an entry-level political policy appointment? I knew a partner at Arnold & Porter whose niece stood to fill such a post in the Department of Energy if Gore had been elected in 2000; but he was not, and so her ambition ended. Or are the partner’s brother or sister in such a position? If one could study the roster of the people appointed in the Obama administration to entry-level policy positions, I think a substantial proportion would turn out to be the sons, daughters, nieces, or nephews of powerful partners in the same firms that represented the Gitmo Terrorists. And, indeed, the Department of Justice lawyers who represented the terrorists, and whose tenure in the DOJ is causing such concern, obtained those appointments only because the Democratic Party took the presidency in the 2008 election. All of these young people now have another document to frame beside their Harvard or Yale or Dartmouth diplomas, a document essential to progressing ahead in a career of leading America: their first federal political policy appointment.
It is really a matter of sociology more than of party registrations. But every lawyer in every firm knows where the political balance lies — knows it from casual conversations before or after case conferences, or in the lunchroom, or in social gatherings. It is the social reality of pursuing a career inside these firms.
Now that the Democrats have the presidency, it is in the interest of these same people that the nation is safe from terrorism, and that the public believes the federal government is well managed. Thus you will not see these same firms pursuing efforts to discredit the administration, and I very much doubt that you will see any dangerous relaxation in the steps necessary to protect the country. Instead what we will see is a difficult and ambiguous march back, in which the people who once based their careers on challenging Republican administration policies, and who got into office by so doing, maneuver into a state of supporting those same policies, now that policies are relabeled with the Democratic brand.
Letter to the Editor View all comments (58) | Leave a comment
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Bill Hussein O'Stalin| 3.16.10 @ 7:43AM
Thanks for the alleged insight.
You left one sentiment out of the equations you mentioned. Money. You claim these cases are pro bono and in some cases maybe they are but surely there is some money from overseas involved. What the public needs to know is how much and from whom?
The influence you mentioned is a necessary part of the political environment.
However, your article appears to be a half-hearted attempt at defending the attorneys currently working at the highest levels of Justice who have defended the terrorists. That would include Eric Holder, the Attorney General.
It is now known that Eric Holder lied during his confirmation hearings by holding back information. Mr. Holder and his defenders simply claim he forgot to bring it up. Forget the fact that Eric Holder is just another lobbyist in the Obama administration when Obama promised there would be no lobbyists.
No, there is quite more to the story then you imply. There is overt and overwhelming evidence that the skids are being greased to give these terrorists civilian trails and that those mechanizations are being prepared by the very people who defended them at one point.
That used to be thought of as treason. Now it's just explained away as a business decision or a political expediency.
Dave| 3.16.10 @ 10:27AM
Uh, I think it's pretty clear the Obama administration has decided to reverse course and use military tribunals. At least that's my take on the recent media treatment of the story.
Anthony| 3.16.10 @ 12:04PM
Bill is quite right. The unspoken considerations, in addition to the ones articulated by Mr. Sisson, are the quid pro quos of taking on 'Leftist" causes in a town run by Leftists.
This is especially true in an Obama Administration, in which lucrative government legal business is doled out to those law firms who are on the "right" side of things, far more so then in other Democrat administrations. It's part of the corrupt Chicago mentality, as witnessed by the bribes associated with the Health Care Bill.
Rain makers in these firms are usually well connected and their firm's pro bono causes are touted to those in a position to dole out the legal largess. And when Democrats are no longer in charge, the ubiquitous Leftist bureaucrats will still be there to dole it out.
It's a classic Leftist win/win, being ideologically predisposed towards the Leftist cause and getting well paid on the back end, in either legal business and/or government appointments.
Anthony| 3.16.10 @ 12:19PM
P.S. I just love the pious carnard coming from the Left and Leftist lawyers, that we Conservatives are engaged in a "chilling effect" in violation of sacred Constitutional rights, to wit, the right to legal representation by a lawyer to all alleged criminals, no matter how horrible the alleged crime.
Nothing could be further from the truth; we respect the Constitution and all that it contains. We just don't think lawyers who represent those who seek to destroy us and our country, and who hold sympathic positions of these defendants, should be allowed to hold high postions in our government.
Is that really so hard for the Left to comprehend???
Alan Brooks| 3.16.10 @ 6:48PM
Everyone is so lawyered-up these days, and just to shake an attorney's hand costs $100.
In the past Gitmo detainees could claim they were mistreated, but no more than most prisoners in any nation save for a few N. European countries. Perhaps. Throw in New Zealand, too.
I notice a great deal of the Blame America First anger is still-- after 14 months--directed at Cheney; mention his name and his detractors spit out the epithet "Halliburton!"; and they don't like his daughter, Liz, either, or her organization.
But now that Obama is president detainees will be treated better than most prisoners in the world are.
Alan Brooks| 3.16.10 @ 8:30PM
Cripes, can you imagine how well the detainees will be eating by 2016? Punks will joining al Qaeda merely to surrender so they can chow down at Guantanamo!
Where do you sign up?
Curly Smith| 3.16.10 @ 8:55AM
That trial lawyers are one of the largest contributors to the Democratic Party is a matter of public record, so it's only reasonable to assume that politics is a major motivating factor. However, I think the vigor with which the terrorists were represented suggests that the cause is closer to a "perfect storm" - politics plus ideology. The lawyers did want to discredit the Bush Administration but I have confidence that they were also "true believers". They believed that the terrorists represented the ultimate victim of US hegemony. They represented everything that was wrong with the country and, consequently, it was only reasonable to present a defense that did lasting, long-term damage to the United States. The lawyers in question are perfect fits for an Obama Justice Department.
Alan Brooks| 3.16.10 @ 8:34PM
Maybe we ought to make the deal at Gitmo so good that all the personnel of al Qaeda will surrender just to have at the chow.
Sign me up!
hoads| 3.16.10 @ 9:52AM
I don't dismiss the possibility of Muslim money exchanging hands here.
A| 3.16.10 @ 10:33AM
Buying a Car
Dave| 3.16.10 @ 10:36AM
I agree with Curly. These lawyers going to great lengths to sign up terrorist clients are not just Democrats. They are leftists. True believers as Curly says. I know this based on my longtime membership in the National Assoc. of Criminal Defense Lawyers which is largely populated by radicals. This article reminded me I need to get going on my letter resigning my membership. The benefits are now simply outweighed by my intolerance of the self-righteous and pious proclamations about how wonderful "we" are for representing these detainees. All while being feted with awards, fawning from young lawyers, and cocktails. It all makes me sick.
Paul from SA| 3.16.10 @ 11:54AM
I agree. These lawyers are leftist progessives (anti-American).
They want trials, not to try the defendents, but to put the U.S. , Bush, Cheney and the CIA on trial. This is their huge chance to knock America down a few notches.
The presence of these lawywers within the Justice Dept. explains why the administration is so weak on national security. They care more about terrorists rights and feelings than for Americans' safety.
PCC| 3.16.10 @ 10:56AM
An enlightening and thoughtful article.
Pingback| 3.16.10 @ 12:02PM
Weblog » Pro Bono Procedures and Internal Law Firm Politics links to this page. Here’s an excerpt:
Oldefarte| 3.16.10 @ 12:23PM
Pro bono legal representation of a street thug is one thing, but a terrorist intent upon destruction of Americans [ie 9/11/01] is quiet another. These lawyers performing thus are nothing but PROSTITUTES!!!!!!
Wally| 3.16.10 @ 1:52PM
Hey Sen. McCarthy, Nice work by guilt by conjecture, insinuation and association.
"I think that if the subject can be researched, the result would be that they are. It is not just a matter of whether the particular partner is active in that party. It is a question of the ties of friendship and family pull in the direction of that one party. "
Sir, has anyone in your family or a friend had any tie to anyone in the Democratic Party?
Sir, has anyone in the Democratic Party ever suggested that non citizens continue - as they have for 100 years to have rights to habeus corpus?
Yes? and Yes? Well, then sir, you and your law firm are pro terrorist. (How's THAT for pushing me out of your firm?).
Curly Smith| 3.16.10 @ 6:26PM
So you're saying that because McCarthy was right about the infiltration of Soviet spies, we shouldn't consider the possibility that other agents hostile to the United States might also infiltrate?
Pat| 3.16.10 @ 6:38PM
Not surprising lawyers are only human, with all the pettiness and ideological baggage that goes with our sad species. Plus, Ann Coulter did a similar article recently, not as insightful into legal partnerships, but funnier. But why, in both this and Coulter's article, are attorneys so committed to supporting causes popular with Democrats - or jumping on the band wagon after the cause is properly sanitized and becomes "acceptable" to the Dems? Why not an equal passion for gun rights or enforcing the rights of Americans against emininent domain takeovers by govt.?
Is it because lawyers have a positive knack for generating revenue from problems that wern't problems until lawyers got involved? Or maybe because loading our laws with technicalities and contradictions is more profitable than a Starbucks franchise - can lawyers turn a $.50 cup of coffee into a $4.00 cup of coffee with the right marketing approach?
Apparently they can and the Dems are their most enthusiastic lackeys and procurers of "new" legal issues previously overlooked for 200 years. As Americans, we're the innocent victims of our own laws - trials, endless appeals, bizarre rules of evidence, "if you can't afford a lawyer, one will be provided, etc", "pain and suffering awards", class action lawsuits - a constant flow of issues requiring litigation - new markets for a society burdened with too many lawyers.
But without lawyers, what manner of society would we be? Who would uphold our highest ideals of justice - and at a $400 per hour billing rate? Giving away free samples to those too poor to afford justice - admirable we're constantly told and with the resulting public acclaim it avoids having to crassly advertise your firm on television in competition with geckos selling car insurance or magic pills that reduce your weight without changing your diet or exercising.
As Americans, we may be the unrecognized victims of our absurd legal system but lofty ideals have a high price and that price comes in the form of a billing statement from those lovable attorneys - Crooke, Steele and Gotscha.
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ATLmedia| 3.16.10 @ 10:54PM
The idea that terrorism suspects,drug dealers,the
scum of the earth get lawyers- what kinda commie loving constitution does this country have?
Courts are for the rich- not poor criminals who can't afford lawyers. Wise up Amerika!
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