The intensifying flap over Justice Department lawyers who have advocated for Guantanamo Bay detainees is spilling over to Big Law, where some firm leaders are fighting back against the criticism.
The Justice Department in the past couple of weeks has come under fire from a conservative group and Republican lawmakers for hiring lawyers who represented Guantanamo Bay detainees while in private practice. The controversy ramped up after the Justice Department refused to name the lawyers. Then the conservative group Keep America Safe posted a YouTube video questioning the allegiance of the DOJ lawyers and giving the attorneys a name — “The Al Qaeda Seven.”
The political talk shows are buzzing about ethics and loyalty. Lawyers are writing opinion pieces. One Virginia congressman fired off a letter to Attorney General Eric Holder Jr. that compared Gitmo lawyers to attorneys for the Mafia. And in the middle of it all are a group of former private practitioners in Big Law at firms that include Wilmer Cutler Pickering Hale and Dorr, Morrison & Foerster, O’Melveny & Myers and Sidley Austin.
“From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm’s commitment to that cause,” said Brian Brooks, managing partner of O’Melveny & Myers’ Washington office. “If the private bar doesn’t step up and show that kind of courage, then I think our whole system of justice is in question.”
Brooks, who describes himself as a conservative, said, “There’s a consensus from left to right that law and justice need to be insulated from politics.” Karl Thompson, who was a counsel with O’Melveny, was part of the team that defended Omar Khadr, the Canadian citizen who was 15 years old when he was transferred to Guantanamo in 2002.
Carter Phillips, the D.C. managing partner of Sidley Austin, said he feels “horrible” that a former partner, Joseph Guerra, who is now principal deputy associate attorney general, is taking heat for his participation on a U.S. Supreme Court brief in a detainee case. (Phillips, a former assistant solicitor general in the Reagan administration, was also on the brief.)
“I always think it is an outrage when people attack the lawyers for whom they represent,” Phillips said. “To me it’s unfortunate that we’re talking about wonderful talent, relatively young lawyers who … are now being pilloried for something that they ought to have been cheered for.”
Whether or not the cause is popular, Phillips said, “it’s our responsibility to make sure that every side in a litigated matter is adequately represented. If that means personal sacrifice of one sort or another, that’s the price you pay.”