Did the detainees’ lawyers lie?

Nearly all of what has been stated to the media by many in the Guantanamo Bay Bar Association about the treatment of detainees is based solely upon the word of the detainees. Those allegations were furthered by public relations campaigns, “corroborated” by numerous editorial boards, and echoed by lazy reporters working for the same media outlets.

On March 14, 2007, the senior partner, Rohan S. Weerasinghe, for the law firm that represented (until last year) the twelve Guantanamo detainees known as the “Kuwaiti 12” publicly responded to Debra Burlingame’s op-ed Gitmo’s Guerrilla Lawyers in a letter to the Wall Street Journal’s editor.

Within her op-ed, Ms. Burlingame wrote (emphasis added mine):

“…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.

Mr. Wilner and his colleagues at Shearman & Sterling were the exception, although he has been exceedingly coy about the true nature of his firm’s role. Unlike the many lawyers who later joined in the litigation on a pro bono basis, Shearman & Sterling was handsomely paid. Mr. Wilner has repeatedly stated that the detainees’ families insisted on paying Shearman & Sterling for its services and that the fees it earned have been donated to an unspecified 9/11-related charity. According to one news report, the families had spent $2 million in legal fees by mid-2004. In truth, Kuwaiti officials confirmed that the government was footing the bills.

How did Shearman & Sterling get tapped for this historic assignment? Speaking at Seton Hall Law School in fall of 2006, Mr. Wilner recounted that he visited the facility at Guantanamo Bay in 2002, months before he met the Kuwaiti 12’s families. What was Mr. Wilner doing at Gitmo more than two years before Rasul established the legal basis for lawyers getting access to detainees inside the camp? One of his Gitmo legal colleagues has said that Mr. Wilner was brought into the case by an oil industry client.

“…In Kuwait, the firm has represented the government on a wide variety of matters involving billions of dollars worth of assets. So the party underwriting the litigation on behalf of the Kuwaiti 12–from which all of the detainees have benefited–is one of Shearman & Sterling’s most lucrative OPEC accounts.

“…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’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 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.”

In part, Mr. Weerasinghe responded by saying:

“We take exception to Debra Burlingame’s commentary criticizing our representation of 12 Kuwaiti detainees at Guantanamo… we did not hire the public relations firm Ms. Burlingame criticizes… our lawyers did not have special access to Guantanamo in 2002. None of the lawyers representing detainees were permitted to visit until late 2004, when the federal district court ruled the detainees had a right of access to counsel and security measures designed by the military authorities were put in place.” (WSJ subscription required to view full letter)

In his July 28, 2002, piece, Inside the Wire, Roy Gutman said, “The Washington law firm of Shearman & Sterling has been retained, and a public-relations consultant has been contracted.”

On October 5, 2006, Tom Wilner, Shearman & Sterling’s lead lawyer for the “Kuwaiti 12,” speaking at Seton Hall said:

When I was first taken down to see the people at Guantanamo — in their orange jumpsuits and their chains, people who were called ‘the worst of the worst’ and who would chew through airline cables to bring planes down — I thought, you know, thank God we’ve got these guys and we’ve taken them down there. I was approached a few months later by a group of Kuwaiti families to try top find their kids. They hadn’t known they were at Guantanamo at the time and I took a trip to Kuwait with a colleague of mine and I started to learn some facts.”

One could speculate Mr. Wilner’s self-admitted special access was gained while accompanying or escorting representatives of a foreign government to Gitmo during an unpublicized visit.

Mr. Weerasinghe also wrote in his letter to the Wall Street Journal:

“We are as proud of our role in the important legal debate on these issues as we are of our successful pro bono representation of the families of 21 victims of 9/11 on whose behalf we obtained $35 million in awards from the Victim Compensation Fund…”

So Shearman & Sterling is “as proud” of representing those who went off to the jihad, who were the “employees” of al Qaeda, who met with Osama bin Laden, who trained at the same al Qaeda run camps in Afghanistan as four of the nineteen 9/11 hijackers, and who participated in the uprising at the Qala-I-Jangi fortress that took the life of the CIA’s Mike Spann as they are of representing the families of 21 victims of 9/11.

Mr. Weerasinghe also felt the need to add:

“Certainly, we did not agree to represent the detainees on these issues out of sympathy with terrorists or enemy combatants…”

Regardless of who paid them, a public relations consultant was hired at approximately the same time as Shearman & Sterling. The words of that PR firm’s President, Richard Levick, should make it obvious to all they were hired to work with Shearman & Sterling’s lawyers to represent the “Kuwaiti 12” in the court of public opinion:

“In 2002, relatives of the Kuwaiti detainees, led by an impressive gentleman named Khalid Al-Odah, whose son remains among the detainees, banded together to form the Kuwaiti Family Committee. The group hired the large New York-based law firm Shearman & Sterling to spearhead the battle to grant these prisoners the legal protections provided to U.S. citizens, such as the right to have charges brought against them and the right to a trial.

“To create an environment where reporters knew that this issue deserved open-minded coverage, we devised a two-tiered PR strategy…

“Shearman’s Wilner became the main spokesperson for the efforts on behalf of the Gitmo detainees. Indeed, he’s been our other ace in the hole. In our work, we sometimes come across attorneys who resist any attempt to mount a vigorous public campaign, or they vet the terms of each communication so circumspectly as to neuter it altogether.

“The tandem efforts of the legal and PR specialists have yielded good results for The Kuwaiti Family Committee.”

Did the detainees’ lawyers lie?

Captured al Qaeda documents show their charges were trained to allege torture and abuse. Surely, the writers of our Constitution’s 14th Amendment never conceived the day would come when propaganda would be entertained in our courts as evidence of unequal protection — of the enemy — under our law.

The influence the enemy’s propaganda had can be found in Mr. Levick’s own words:

“You often hear lawyers and clients disclaim any attempt to directly influence juries and judges. Nonsense! PR does just that, and it does so honorably. Our news feed, including dozens of op-eds by both Wilner and Khalid Al-Odah, reached the public and Congress directly, raising awareness of the situation in Guantánamo. In turn, such public awareness would ensure that judges knew that people were paying attention, that the prisoners weren’t forgotten, and that it was indeed a viable as well as correct position to affirm due process in this situation.

“The judges working on the detainee cases have openly cited stories that resulted from the media outreach in some of their rulings, which generally have been favorable to the detainees’ cases. As Michael J. Glennon, a professor of international law at Tufts University, told the Washington Post: “The discomfort some justices may have with U.S. foreign policy is bound to lap over into their views of the legal issues. There is no question the justices live in this world and they read the newspapers.””

Unfortunately, a majority of those justices apparently believe what they read in the newspapers as well.

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