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.
