Thursday, March 08, 2007

Will Someone Tell the Lawyers Not To Take Their Responsibilities So Literally?

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[Warning: Extreme sarcasm ahead]

Everyone has their favorite lawyer horror story, but few could top the one Debra Burlingame describes in the WSJ Opinion Journal. Brace yourself for the most heart-stopping shock of your life: the Kuwaiti government hired a U.S. law firm to represent 12 Kuwaiti nationals who had been captured in Afghanistan and taken to Guantanamo:

The true story of Mr. Mutairi's journey, from the uprising in Qala-I-Jangi to Guantanamo Bay's military detention camp to the privileged life of an affluent Kuwaiti citizen, is one that his team of high-priced lawyers and the government of Kuwait doesn't want you to know. His case reveals a disturbing counterpoint to the false narrative advanced by Gitmo lawyers and human-rights groups--which holds that the Guantanamo Bay detainees are innocent victims of circumstance [an especially heinous holding, given that all the detainees were charged with specific acts of terrorism upon arrival at Guantanamo], swept up in the angry, anti-Muslim fervor that followed the attacks of September 11, then abused and brutally tortured at the hands of the U.S. military. [Oh, wait, I'm sorry, I was wrong; none of the detainees were charged with anything, at any time.]

Mr. Mutairi was among 12 Kuwaitis picked up in Afghanistan and detained at Guantanamo Bay in 2002. Their families retained Tom Wilner and the prestigious law firm of Shearman & Sterling early that same year. Arguably, it is Mr. Wilner's aggressive representation, along with the determined efforts of the Kuwait government, that has had the greatest influence in the outcome of all the enemy combatant cases, in the court of law and in the court of public opinion. The lawsuit filed on their behalf, renamed Rasul v. Bush when three cases were joined, is credited with opening the door for the blizzard of litigation that followed.

According to Michael Ratner, the radical lawyer and head of the Center for Constitutional Rights (CCR), the center received 300 pieces of hate mail when the organization filed the very first Guantanamo detainee case in February of 2002. The shocking images of 9/11 were still fresh; it would be three more months until most human remains and rubble would be cleared from ground zero. There was no interest in Guantanamo from the lawyers at premium law firms.

But by 2004, when the first of three detainee cases was heard by the U.S. Supreme Court, the national climate had changed. The country was politically divided, the presidential election was in full swing, and John Kerry was talking about treating terrorism like a criminal nuisance. The Guantanamo cases gave lawyers a chance to take a swipe at the president's policies, give heroic speeches about protecting the rights of indigents, and be a part of the kind of landmark legal cases that come along once in a lifetime. The Guantanamo Bay Bar increased from a lonely band of activist lawyers operating out of a run down office in Greenwich Village to an association of 500 lawyers. Said Mr. Ratner about the blue chip firms that initially shunned these cases, "You had to beat the lawyers off with a stick."

Stay strong. There's more:

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.

Mr. Wilner, a media-savvy lawyer who immediately realized that the detainee cases posed a tremendous PR challenge in the wake of September 11, hired high-stakes media guru Richard Levick to change public perception about the Kuwaiti 12. Mr. Levick, a former attorney whose Washington, D.C.-based "crisis PR" firm has carved out a niche in litigation-related issues, has represented clients as varied as Rosie O'Donnell, Napster, and the Roman Catholic Church. Mr. Levick's firm is also registered under FARA as an agent of a foreign principal for the "Kuwaiti Detainees Committee," reporting $774,000 in fees in a one year period. After the U.S. Supreme Court heard the first consolidated case, the PR campaign went into high gear, Mr. Levick wrote, to "turn the Guantanamo tide."

In numerous published articles and interviews, Mr. Levick has laid out the essence of the entire Kuwaiti PR campaign. The strategy sought to accomplish two things: put a sympathetic "human face" on the detainees and convince the public that it had a stake in their plight. In other words, the militant Islamists who traveled to Afghanistan to become a part of al Qaeda's jihad on America [although, curiously, held at Guantanamo for years without ever being charged with having traveled to Afghanistan to become a part of al Qaeda's jihad on America] had to be reinvented as innocent charity workers swept up in the war after 9/11. The committed Islamist who admitted firing an AK-47 in a Taliban training camp became a "teacher on vacation" who went to Afghanistan in 2001 "to help refugees." The member of an Islamist street gang who opened three al-Wafa offices with Suliman Abu Ghaith (Osama Bin Laden's chief spokesman) to raise al Qaeda funds became a charity worker whose eight children were left destitute in his absence. All 12 Kuwaitis became the innocent victims of "bounty hunters."

Eddie-george at TPMCafe breaks down the weirdness for us:

Of the many strange things alleged in the article, there's a couple that stand-out for sheer crackpottery:

1. The fact the Kuwaiti government instructed a law firm to act on behalf of Kuwaiti citizens is apparently a shock.

2. Shocking too is even though Gitmo existed in a legal blackhole, the Kuwaitis were paying the firm to lobby politicians. And most shocking of all, the firm publicly declared this, as they are legally obligated to do.

3. Rasul v Bush, arguably the seminal Gitmo case, was apparently decided because the Supremes were influenced by "aggressive representation, along with the determined efforts of the Kuwait government,"; and it "has had the greatest influence in the outcome of all the enemy combatant cases, in the court of law and in the court of public opinion."

Perhaps someone should remind the writer that SCOTUS decisions tend to have far-reaching effects, and equally, that plaintiffs have a right to expect aggressive representation.

4. Apparently Kuwait is "enmeshed in the anti-American, anti-Israel elements of Middle East politics". Let's just say the Pentagon would be interested to learn this.

5. Apparently lawyers representing Gitmo detainees are "interjecting themselves in cases that affect how American soldiers on the battlefield do their job."

There are other truly wierd quotes to be extracted, but the bottom line is that the writer, somehow, thinks the responsibility for the legal wasteland in which Gitmo detainees are held is the fault of lawyers. And it is the fault of these lawyers that Gitmo tarnishes America's image abroad.

I suggest the writer get out and wake up to the fact that it is not lawyers, operating within the law, that are a problem. No, it is the government which wants to operate outside the law, and does. That's what changed the way the world looks at America.

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