Special Report

Pro-Democratic Bono

What motivated high-powered Washington lawyers to represent the Gitmo terrorists?

By 3.16.10

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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.

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About the Author

Edward Sisson, a Washington attorney, is a former partner at Arnold & Porter.