Gitmo’s indefensible lawyers

On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits-masked, bound and kneeling on the ground at Camp X-Ray-just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.

Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: "Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the ‘War on Terror.’" It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.

"One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo," the brochure read, "is that of anti-Arab, anti-Islamic, and other racist abuse."

How did the detainee get it? More importantly, who gave it to him?

Majeed Abdullah Al Joudi, the detainee in whose cell the brochure was first found, told guards he received the brochure from his lawyer. An investigation by JTF-GTMO personnel revealed that Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, had sent it to Al Joudi and eight of the firm’s other detainee clients through "legal mail"-a designation for privileged lawyer-client communications that are exempt from screening by security personnel. Worse, the investigation showed that Ms. Mason’s clients passed it to other detainees not represented by Paul, Weiss lawyers. In all, more than a dozen detainees received a copy.

At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.

The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security. Maj. Gen. Hood made a command decision. He banned the Paul, Weiss lawyers from access to Guantanamo. The DOJ notified the firm.

Paul, Weiss immediately went on the offensive, backed by what one former Defense Department official, who requested anonymity, called "an armada of habeas attorneys." They sued the government, demanding that it defend the decision to eject lawyers from Gitmo, making the straight-faced claim that the Amnesty International brochure was a legitimate "report" that was "directly related" to their clients’ defense. But their bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn’t remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge.

In a sworn affidavit submitted to the D.C. District Court and obtained by the writers of this article in a Freedom of Information Act request, Maj. Gen. Hood did not equivocate when it came to the Amnesty International pamphlet. "The very nature of this document gives tremendous moral support to those who would strike out against our country," he stated. "It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions."

Maj. Gen. Hood noted that many of the captured al Qaeda terrorists held at the camp had been "specifically trained on the Manchester Manual [an al Qaeda training manual discovered at a safe house in Britain]," which "encourages detainees to claim torture and abuse." He warned that "[e]xamples and vignettes of alleged abuse of other detainees" could be used "to fabricate their own claims of abuse and torture."

In fact, from al Qaeda’s perspective, the Amnesty International brochure was better than the Manchester Manual. It cued detainees that the abuses at Abu Ghraib "were not an aberration." The brochure told them that images from the Iraqi prison were consistent with "numerous allegations of torture and ill-treatment reported from detention centres in Afghanistan, Iraq and at Guantanamo Bay."

The message to the detainees was clear: If you want to claim you are being tortured, here is a vast menu of examples from which to choose.

But Maj. Gen. Hood’s immediate concern about the magazine’s "propaganda and misinformation" was the strong potential that it would incite detainees to act out against U.S. personnel in his facility. The Islamic cultural adviser agreed, telling Maj. Gen. Hood that "the tone of the magazine was highly inflammatory" and "would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp."

That was an understatement. Four months earlier, a core group of detainee leaders recruited as many as 131 detainees to engage in a coordinated hunger strike. The self-starvation was intended to make the detainees look like victims, win sympathy for their cause, and force the U.S. government to choose between letting them die or letting them go. The tactic worked to perfection. Human rights activists created a media firestorm with completely fabricated reports about Guantanamo medical staff using "forced feedings" to "torture" detainees.

Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason’s advocacy "resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees."

Despite this history, Paul, Weiss attorneys were apparently so confident that the DOJ could be cowed into submission that they provided the court with exhibits-letters, emails and court filings-documenting gross violations of the protective order by other habeas attorneys whose access was not cut off, ostensibly to show that Paul, Weiss was being treated unfairly.

We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."

Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp’s layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.

If the stated intent was to show that the government had singled out Paul, Weiss attorneys, the unstated purpose was to demonstrate something even more significant to the government’s lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

"They were beaten down by the litigation," said the former Defense Department official who asked to remain anonymous. "If I’d gotten caught passing war news to detainees, my security clearance would have been pulled."

But why would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan? The records indicate that attorneys were printing news off the Internet and passing it to detainees at the same time that U.S. forces in Iraq were sustaining devastating casualties from IED attacks.

"They would bring contraband in their briefcases, in manila envelopes," an active-duty officer familiar with Defense Department records on attorney access violations told us. "They did it because they knew the detainees were hungry for news and they wanted to establish trust."

The desire to establish trust is evident in Ms. Mason’s own affidavit to the D.C. court concerning the status of her firm’s representation of Saudi detainees in habeas cases. The attorneys couldn’t remain as attorney of record and go forward with a habeas case if the detainees wouldn’t cooperate with them. "While we have made substantial progress in developing rapport and trust with our clients," she stated, "we have not yet been able to secure from all of them written acknowledgment of our representation." She attributes this to "torture and abuse . . . at the hands of the American military" as opposed to the Islamist mindset that sees no distinction between American attorneys in suits and American personnel in uniform. Indeed, court records reveal that Yousef Al Shehri wrote to the court, "expressing in no uncertain terms that he desires neither representation, nor a lawsuit on his behalf."

Ultimately, the government would reach a settlement with the Paul, Weiss lawyers. Ms. Mason and her team were allowed to resume their trips to Guantanamo in May 2006. But the DOJ’s surrender emboldened the Gitmo bar even further. Last August, the Washington Post reported that three lawyers defending Khalid Sheikh Mohammed and his 9/11 co-conspirators showed their clients photographs of covert CIA officers in an attempt to identify the individuals who interrogated them after they were captured overseas. Lawyers working for the John Adams Project, formed to support the legal team representing KSM and his cohorts, provided the defense attorneys with the photographs, according to the Post. None of the attorneys under investigation were identified in the Post report.

In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.

The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation’s safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.

The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.

The public has a right to know, for instance, that one of Mr. Holder’s early political hires in the department’s national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions-which she calls "kangaroo courts"-and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo’s moral stain. This suggests that Ms. Daskal, who serves on the Justice Department’s Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."

It is entirely legitimate to ask who else among Mr. Holder’s hires from the Gitmo bar is shaping or influencing national security policy decisions. Meanwhile, the public can decide whether the lawyers at Paul, Weiss who are volunteering at Guantanamo are an example of the legal profession’s noblest traditions.

We spoke to Ms. Mason’s executive assistant on Friday seeking her comments. Multiple calls and emails had not been returned as this paper went to press last night.

On Feb. 20, 2007, a post on the Paul, Weiss Web site proudly announced "Paul, Weiss achieves more victories for Guantanamo detainees." Two detainees were released from Gitmo to their home in Saudi Arabia. One was Majeed Abdullah Al Joudi, a recipient of the Amnesty International "report." The Web site needs an update. The Pentagon has identified Al Joudi as a "confirmed" recidivist who is "directly involved" with the facilitation of "terrorist activities."

Yousef Al Shehri, the detainee who led his cell block in the feeding tube rebellion, was also released in November 2007. In early 2009 he was listed on the Saudi Kingdom’s list of 85 "most wanted" extremists. Yousef was killed last October during a shootout with Saudi security forces on his way to a martyrdom operation. He and another jihadist, disguised as women and wearing suicide vests, killed a security officer in the clash. Yousef’s brother-in-law, Said Al Shehri, also released from Gitmo, is currently the second in command of al Qaeda in the Arabian Peninsula, the branch that launched the Christmas Day airline attack last year.

Originally posted at the Wall Street Journal

Debra Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, pilot of American Airlines flight 77, which was crashed at the Pentagon on September 11, 2001. She is a co-founder of Keep America Safe. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.