July 2007

Defending the Powerless: Seattle lawyers win fight for constitutional rights in the war on terror

by Robin Lindley

The Bar News Member Profile column gives you a chance to meet other WSBA members and see what they are up to. This month’s article is about four Seattle attorneys and how they spend their pro bono time. If you would like to tell us about a member you know or even tell us about yourself, please send your Member Profile articles to barnewsarticles@wsba.org.

[Introductory note: On January 11, 2007, attorney and Assistant Secretary of Defense Charles “Cully” Stimson labeled fellow lawyers “dishonorable” for offering free legal services to U.S.-held detainees at Guantanamo Bay, Cuba. Stimson also called on corporate America to boycott firms whose attorneys “represent terrorists.” The Pentagon later renounced Stimson’s comments, and Stimson released a brief apology. Nonetheless, the 8,000-member San Francisco Bar Association asked the California Bar to investigate whether Stimson, an inactive member, acted unethically. Many attorneys and scholars have blasted Stimson’s position as completely contrary to the core legal principle of providing pro bono representation for the poor and powerless. Stimson’s remarks and detainee treatment were discussed at the national meeting of the American Bar Association in February 2007.]

Four Seattle attorneys from Seattle’s largest law firm, Perkins Coie, helped make legal history last summer in their defense of alleged enemy combatant Salim Hamdan, the Yemeni driver for al Qaeda mastermind Osama bin Laden.

In a 5-3 vote, the United States Supreme Court ruled on June 29 that President Bush overstepped his authority in ordering military tribunals for Hamdan and other detainees at Guantánamo Bay, Cuba. The Court ruled that the tribunals — created in secret without Congressional approval — violated the U.S. Constitution, the Uniform Code of Military Justice, and the Geneva Conventions. The Court’s message to the Bush administration was blunt: “The Executive is bound to comply with the Rule of Law.”

Legal scholars hailed the Hamdan v. Rumsfeld decision as the most important ruling ever on presidential power. Under the ruling, even in wartime, assertions of military necessity may not preclude judicial review of a president’s actions.

Perkins Coie, a Seattle law firm that represents defense contractor Boeing, agreed to defend suspected terrorist Hamdan two years ago. Hamdan’s lead civilian attorney, Prof. Neal Katyal, of Georgetown University Law School, mentioned the case to his former student, Perkins Coie associate David East (now with the McNaul Ebel firm). East alerted firm partner Harry Schneider, who presented the case to the firm’s Pro Bono Board.

The board accepted the case because “it’s critical to assure access to justice for all, including a foreign national seen as an enemy,” East said.

The firm was impressed by the legal positions of Prof. Katyal and Hamdan’s military counsel, Lt. Cmdr. Charlie Swift, who were challenging the actions of the President and Secretary of Defense Donald Rumsfeld for denying to Hamdan, among other things, Geneva Convention protections, the right to be present at his own trial, and the right to examine evidence against him.

East and Schneider, with fellow Perkins Coie attorneys Charles Sipos and Joe McMillan, worked thousands of hours to defend Hamdan.

An overreaching executive branch created veritable “law-free zones,” explained Sipos, as Hamdan and fellow detainees languished without charge at Guantánamo. “But the judicial system worked,” Sipos said, and the Supreme Court decision “reflects the genius of the founders in creating three co-equal branches of government . . . But for the courts, an unlawful executive action would have gone unchecked.”

McMillan agreed: “The federal court system was the one institution that checked aggressive claims of executive power by the Bush Administration, as Congress provided no checks, and the press and other institutions were silent.”

The attorneys continue their work on the case. Hamdan is still detained at Guantánamo, awaiting development of procedures under the Military Commissions Act of 2006, passed by Congress in response to the Hamdan decision. McMillan contends that this new law also violates the Constitution and the Geneva Conventions, and these arguments will be presented as the case works it way through the court system.

Federal District Court Judge Robert Lasnik praised the work of the defense team at an early hearing on the case as “in the highest tradition of the bar,” and further commented that “what makes this country so great is not just that we have the most military power or the most wealth, but we have a system in the federal courts where the most vulnerable and most powerless still can get into a courthouse and have their cases heard.”

The attorneys saw their obligation to defend an unpopular, powerless client as self-evident. “As officers of the court, it’s our duty to defend and uphold the U.S. Constitution, and when we see the law flouted, it’s our duty to call it to the attention of the court,” McMillan said. “If lawyers don’t do it, who will?” 

This article originally appeared in the December 14, 2006, issue of Real Change, a Seattle weekly. Robin Lindley, a Seattle attorney, was the 2006 chair of the WSBA World Peace Through Law Section. He is a Spokane native and graduate of the University of Washington School of Law. He has worked as a congressional attorney-investigator, federal agency attorney, law teacher, legal consultant, and public health manager/analyst. He is also a freelance writer and visual artist.