Threats and Responses: The Advocates: Scrappy Group of Lawyers Shows Way for Big Firms – New York Times – by Adam Liptak and Michael Janofsky – PDF

2004 Scrappy Group of Lawyers Shows Way for Big Firms

The Center for Constitutional Rights, the scrappy left-leaning public-interest group that filed the first lawsuits on behalf of people detained as suspected terrorists in Guantánamo Bay, Cuba, works out of an office in Lower Manhattan, not far from some of the biggest law firms in the nation.

But until the cases reached the Supreme Court, the group fought almost alone.

”Early on, we felt very, very isolated because we were going against the grain of the superpatriotism around us,” Ron Daniels, executive director of the center, said.

The offices are dingy, with scuffed metal doors and odd carpeting held together by filth and duct tape. But for the political posters, the law books and the photographs of its founders tangling with the House Un-American Activities Committee and celebrating voting rights victories in the South, the place could be the home of a third-tier municipal agency.

The mood in the offices was bright yesterday, as the group savored its victory in what some legal scholars are calling the most important civil liberties case in half a century. On Monday, the Supreme Court ruled that the more than 600 detainees at the Guantánamo naval base had the right to challenge their detentions in court.

”I feel most vindicated,” Mr. Daniels said, ”by the way many organizations are now trying to claim a piece of this.”

That is a new phenomenon. Early on, the establishment bar mostly kept its distance from the cases, filed in early 2002, months after the Sept. 11, 2001, attacks.

”They made a decision that it was too hot and too soon,” said Barbara Olshansky, deputy legal director of the center.

There was a single exception.

After representatives of a group of Kuwaiti detainees tried and failed to convince two major firms to take those cases in 2002, they called on a lawyer at Shearman & Sterling, Thomas B. Wilner. Mr. Wilner said his firm’s decision to take the cases, separate from the ones that the center litigated for Australian and British detainees, was harder than the center’s had been.

”That’s their job to do these things,” he said. ”For a private law firm to take it on at that time was very, very controversial. We were sort of ostracized. It was very difficult for Shearman & Sterling.”

Ms. Olshansky said times had changed.

”He had to fight with his partners to take the case,” she said about Mr. Wilner. ”Now they use this case to recruit people.”

The president of the center, Michael Ratner, was impressed by the firm’s commitment and its décor.

”I was walking into a place with marble floors,” Mr. Ratner said yesterday, speaking from Greece. ”We have totally frayed carpets and can’t afford to replace them.”

The firm, which handled a separate client from the center, donated the fees it earned in the case to a 9/11-related charity, Mr. Wilner said. The cases of the firm and the center were consolidated and the two worked closely together.

The phones were ringing at the center yesterday, and the big firms that had steered clear of the case as too controversial were getting in line to help represent the detainees.

”We’re getting some very big, very straight law firms,” said Jeffrey E. Fogel, the center’s legal director.

Mr. Fogel was not ready to name them, he said, until they had sorted out just what they were signing up for.

Douglass Cassel, a law professor at Northwestern who was a consultant in the Guantánamo cases, said the ruling on Monday left much to be determined about detainees’ representation.

”I’m not sure a big law firm would be enthusiastic about sending down their trial partners or even associates to Guantánamo for extended proceedings before military commissions,” Professor Cassel said. ”But I’m sure they would be happy to file papers in federal court in Washington.”

Officials at the Defense and Justice Departments could not clarify what proceedings would satisfy the Supreme Court decision.

”We are still working though the ruling,” a Pentagon official said. ”It’s not something that we can move through that fast. There is so much we have to look at. We’re still trying to figure out how to work through it.”

In a statement on Monday, the Justice Department said it was reviewing the decision. On Tuesday, a spokeswoman said she had nothing to add.

Experts in international law said the ruling basically gave the administration two choices. It could allow the detainees to argue their case in federal court or challenge the federal courts as the proper setting, insisting that a military tribunal of some sort or the Pentagon’s new annual review of detainee status provides all the protections that the Constitution requires.

On Tuesday, the Pentagon announced that it had formed a five-member tribunal to hear cases against the first three of nearly 600 Guantánamo detainees. The three, Ali Hamza Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed Mahmoud al-Qosi of Sudan and David Hicks of Australia, have been assigned to the same panel. Trial dates have not been set, and it is unclear whether their cases could also provide a forum to pursue their contentions that their detentions are unlawful.

Bettina B. Plevan, a lawyer at Proskauer Rose in New York and the president of the City Bar Association in New York, said the association was organizing a meeting to discuss how firms could help with the Guantánamo cases.

The atmosphere was quite different in early 2002. Then, Mr. Ratner was approached by representatives of Mr. Hicks. Even in the center, not everyone was eager to take his case.

”Folks in the development department, the fund-raisers, were concerned about what the reaction was going to be,” Ms. Olshansky said.

Even filing the cases in federal court in Washington was difficult, lawyers for the center said, because they could not for some time find a local lawyer to sign the papers.

”The only lawyers we could get at that point were lawyers used to dealing with really unpopular clients,” Mr. Ratner said. Among them was Joseph Margulies, a criminal defense lawyer from Minneapolis.

The first argument, before Judge Colleen Kollar-Kotelly in Federal District Court in Washington, did not go well. The case attracted little attention and no supporting briefs.

”I just can’t say how unreceptive the court seemed to me,” Mr. Ratner said. ”It felt hopeless.”

Things were no better in the appeals court in Washington.

”The circuit court argument went very badly,” Mr. Ratner said. ”It was a very hostile bench. By the time the case got to the Supreme Court, you had to beat the lawyers off with a stick.”

Even in the Supreme Court, though, only one domestic bar association filed a brief. The City Bar Association claimed that distinction in a news release on Monday.

That is odd, Mr. Fogel, the legal director, said.

”These are lawyers’ issues,” he said. ”The right to counsel, the right to the essential elements of due process. You would have thought you would have seen some of the legal organizations be more sharp on these issues.”

The general counsel of the bar association, Alan Rothstein, said the group was surprised to be alone.

”Most bar associations,” Mr. Rothstein said when asked about the situation, ”have stayed away from issues of this level of controversy.”