8 proud United States Marines have mortgaged nearly all they own, taken donations, and collectively spent a million dollars defending themselves against charges associated with the deaths of twenty-four people in Haditha, Iraq. Conversely, since 2002, more than eight hundred ‘Guantanamo Bay Bar Association’ lawyers, the Center for Constitutional Rights, and many of America’s top-tier legal firms have — “pro bono” — nearly wallpapered our federal court system of behalf of America’s enemies. With the Supreme Court now considering whether the ‘Detainee Treatment Act of 2005’ provides sufficient due process to al Qaeda, the ACLU recently announced it had assembled $8.5 million and 30 vastly experienced lawyers to defend them, at home or abroad, under its John Adams Project. What brazen contempt the ACLU must hold for that great patriot when they assign his name to the defense of those who would slaughter his descendants and destroy the nation he helped found and all its freedoms.

“I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl, in the city of Karachi, Pakistan … For those who would like to confirm, there are pictures of me on the Internet holding his head … I was responsible for the 9/11 operation, from A to Z.” — Khalid Sheikh Mohammed, March 10, 2007, in an un-coerced confession to his Combat Status Review Tribunal

Litigation by former top Department of Justice officials may ultimately provide full Constitutional protections to America’s enemies. “The Wall” two of them erected effectively prohibited the sharing with FBI criminal investigators information that very likely would have prevented 9/11. It is more than ironic that since then they have sought to avail discovery of the same classified information to the people who slaughtered 3,000 people. For that “pro bono” work, one way or another, they are paid handsomely.

“The Wall” began forming in 1995 after a FISA court judge became concerned about the information being shared between prosecutors and criminal investigators. When then Attorney General Janet Reno was told it had placed at risk the prosecution of spy Aldrich Ames, she reportedly told the acting director responsible for reviewing and presenting all FISA applications to the FISA Court, “make sure this does not happen again.” [See the Bellow Report pages 712, 713, and 714] Jamie Gorelick chaired a working group that developed information sharing controls. According to the 9/11 Commission report:

These procedures were almost immediately misunderstood and misapplied … The information flow withered … Agents in the field began to believe — incorrectly — that no FISA information could be shared with agents working on criminal investigations. This perception evolved into the still more exaggerated belief that the FBI could not share any intelligence information with criminal investigators, even if no FISA procedures had been used. Thus, relevant information from the National Security Agency and the CIA often failed to make its way to criminal investigators. Separate reviews in 1999, 2000, and 2001 concluded independently that information sharing was not occurring, and that the intent of the 1995 procedures was ignored routinely [emphasis added mine].

The 1999 and 2000 reviews were undoubtedly seen by Jamie Gorelick. While then AG John Ashcroft’s testimony should have at least resulted in the 9/11 Commission calling Ms. Gorelick as a rebuttal witness, instead she wrote a Washington Post op-ed therein asserting implying, “The July 1995 guidelines — the wall — did not really prevent information sharing and merely implemented court decisions.” Former federal prosecutor Andy McCarthy disagrees:

The guidelines did prevent information sharing — that was their purpose. They literally permitted some information to be passed over the wall if intelligence agents realized that evidence they’d developed might prove the commission of a serious crime. Intelligence agents, however, were hardly in a position to come to such a realization with any confidence because the wall generally forbade them from coordinating with criminal agents. Thus, they were ill equipped to recognize the significance of information to which they were privy.

More importantly, the hyper-technical 1995 guidelines were so byzantine as to be inscrutable for non-lawyer agents in the field, who found it far easier to assume they weren’t allowed to communicate with one another than to venture into Gorelick’s labyrinth without benefit of Ariadne’s golden cord. That is why, for example, the FBI’s criminal division declined to assist its intelligence division in August 2001, when an astute agent was frantically trying to find Khalid al-Mihdhar and Nawaf al-Hazmi, the eventual suicide hijackers who steered Flight 77 into the Pentagon. Whether or not the wall procedures dictated that decision, the culture of dysfunction the procedures had fostered was by then firmly entrenched.

Another who must have seen those 1999 and 2000 reviews was then Attorney General Janet Reno. Just as surely, she now commands top dollar out on the lecture circuit speaking about “International Aspects of American Justice.” Perhaps demand was sagging back in November 2006 when she filed her first amicus curiae (friend of the court) brief arguing against detainee detentions:

Former Attorney General Janet Reno and seven other former Justice Department officials filed court papers Monday arguing that the Bush administration is setting a dangerous precedent by trying a suspected terrorist outside the court system. It was the first time that Reno, attorney general in the Clinton administration, has spoken out against the administration’s policies on terrorism detainees, underscoring how contentious the court fight over the nation’s new military commissions law has become. Former attorneys general rarely file court papers challenging administration policy. Suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri is the only detainee being held in the United States.

Ms. Reno added this statement to the ACLU’s April 3, 2008, announcement:

“The ACLU and NACDL’s efforts to ensure that fundamental American legal protections and principles are preserved in these cases are certainly worthy of support. This is the time to demonstrate to the world that the United States need not abandon its principles, even as it seeks to ensure the safety of its citizens.”

A year after Ms. Gorelick became the Deputy Attorney General, Seth Waxman joined her there and worked in several senior posts, culminating at the DoJ’s fourth highest position, the Solicitor General of the United States from 1997 through January 2001.

In 2003, Newsweek reported that Wilmer, Cutler & Pickering (as WilmerHale was previously composed) represented co-defendant Saudi Arabian Prince Mohammed al Faisal against a $1 trillion dollar lawsuit brought by 9/11 family members.

WilmerHale’s 2006 brochure indicated a lucrative practice involving “defense, national security and government contracts.” It also listed this among their pro bono work: “Undertook the representation of six Algerian-Bosnian men currently being held as detainees at Guantanamo Bay, including the coordination of legal and diplomatic efforts to secure their release.” [pdf viewer required] Perhaps it is accurate for the legal advocates on behalf of detainees to say they are defending them for free yet none of those lawyers is living on a sidewalk in a cardboard box.

Also in 2003, Jamie Gorelick became a partner at WilmerHale. According to their web site, Ms. Gorelick is the “Co-Chair of the Defense and National Security Practice Group and the Chair of the Public Policy and Strategy Practice Group.” Further, they state, “Jamie S. Gorelick is a partner in the firm’s Regulatory and Government Affairs and Litigation and Controversy Departments, co-chair of the Defense and National Security Practice Group, chair of the Public Policy and Strategy Practice Group, a member of the Government and Regulatory Litigation Practice Group, and a member of the Executive Committee. She joined the firm in 2003. … Ms. Gorelick was one of the longest serving Deputy Attorneys General of the United States, the second highest position in the Department of Justice.”

In 2001, Mr. Waxman joined WilmerHale and is currently “…a partner in the firm’s Regulatory and Government Affairs and Litigation and Controversy Departments, and the chair of the Appellate and Supreme Court Litigation Practice Group. Mr. Waxman is also a member of the Defense and National Security, Public Policy and Strategy, Government and Regulatory Litigation, and Intellectual Property Litigation Practice Groups. Mr. Waxman is a member of the firm’s Executive Committee. He joined the firm in 2001. Universally considered to be among the country’s premier Supreme Court and appellate advocates…”

No less than fourteen Wilmer, Cutler, Pickering, Hale & Dorr (as WilmerHale was previously composed) lawyers attended the Guantanamo Bay Bar Association’s teach-in at Seton Hall University, in October 2006. Six of those same lawyer’s names [pdf] are on the writ of certiorari for Boumediene v Bush. Also listed there is the attorney of record, Seth Waxman. In his December 5, 2007, oral arguments before the Supreme Court, in part Mr. Waxman said:

Because the D.C. Circuit — because the D.C. Circuit is reviewing a record that was adduced ex parte, in camera, with a presumption to boot that it is — that the evidence is both accurate and complete, and the D.C. Circuit is — has already said it will not hear any new evidence and it must apply that same presumption that that evidence that was heard ex parte in camera with its own presumption is correct. And here’s — let me just give you an example of what difference this makes. You have the unredacted version of Judge Green’s district court opinion. I don’t. She discusses — she does address the adequacy of the substitute. And she addresses the case of two official individuals. One is Mr. Ait-Idir, who is my client, and you have both in her opinion and our brief this truly Kafka-esque colloquy at his hearing in which he is accused of associating with a known Al-Qaeda operative, which he denies, but he can’t be told the name. [pdf]

Providing enemy combatants our secrets or, alternately, excluding intelligence information is the due process their lawyers seek to provide them; that issue will not evaporate should they be transferred to the United States and held or prosecuted.

Searing pain on burning skin drove the decisions of far too many on September 11, 2001. While our government and no multitude of lawyers can change history, they can remember the 3,000 and recall Supreme Court Justice Robert H. Jackson’s words:

“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

In law, our political branches have established military tribunals and commissions to review intelligence information while determining the combat status of detainees and judiciously allow it into evidence when determining their war crimes, if any. To decide otherwise or to reveal our secrets to the enemy would be national suicide.

Editor: Also see ‘Gitmo’s Guerrilla Lawyers‘ by Debra Burlingame and more ‘lawfare‘ related articles.