Say Anything Blog

Or “By their fruits you shall know them”

The Wall Street Journal’s Opinion Journal publishes today to an excellent piece on Lawfare as practiced in the Courts and the Court of public opinion.

Lawfare
Gitmo’s Guerrilla Lawyers
How an unscrupulous legal and PR campaign changed the way the world looks at Guantanamo.

BY DEBRA BURLINGAME
Thursday, March 8, 2007 12:01 a.m. EST

He was the first American to die in what some have called “the real war.” Johnny “Mike” Spann, the 32-year-old CIA paramilitary commando, was interrogating prisoners in an open courtyard at the Qala-I-Jangi fortress in Afghanistan when the uprising of 538 hard-core Taliban and al Qaeda fighters began. Spann emptied his rifle, then his sidearm, then fought hand-to-hand as he was swarmed by raging prisoners screaming “Allahu akbar!”

The bloody siege by Northern Alliance and U.S. forces went on for several days, only ending when 86 of the remaining jihadi fighters were smoked out of a basement where they had retreated and where they murdered a Red Cross worker who had gone in to check on their condition. Spann, a former Marine, is credited with saving the lives of countless Alliance fighters and Afghan civilians by standing and firing as they ran for cover. His beaten and booby-trapped body was recovered with two bullet wounds in his head, the angle of trajectory suggesting he had been shot execution style.

One of the committed jihadis who came out of that basement, wounded and unrepentant, was “American Taliban” John Walker Lindh, now serving a 20-year sentence in a federal prison. Another who was shot during the uprising and pulled out of the basement along with Lindh was Nasser Nijer Naser al-Mutairi. Today, the 29-year-old is living somewhere in Kuwait, a free man.

Two blatant cases of injustice arising from Lawfare.  Both Lindh and al-Mutatiri were at best illegal combatants whose lives should have been forfeit under the Customary Laws of Warfare.

More beneath the fold.

Ms Burlingame continues:

The true story of Mr. Mutairi’s journey, from the uprising in Qala-I-Jangi to Guantanamo Bay’s military detention camp to the privileged life of an affluent Kuwaiti citizen, is one that his team of high-priced lawyers and the government of Kuwait doesn’t want you to know. His case reveals a disturbing counterpoint to the false narrative advanced by Gitmo lawyers and human-rights groups--which holds that the Guantanamo Bay detainees are innocent victims of circumstance, swept up in the angry, anti-Muslim fervor that followed the attacks of September 11, then abused and brutally tortured at the hands of the U.S. military.

Mr. Mutairi was among 12 Kuwaitis picked up in Afghanistan and detained at Guantanamo Bay in 2002. Their families retained Tom Wilner and the prestigious law firm of Shearman & Sterling early that same year. Arguably, it is Mr. Wilner’s aggressive representation, along with the determined efforts of the Kuwait government, that has had the greatest influence in the outcome of all the enemy combatant cases, in the court of law and in the court of public opinion. The lawsuit filed on their behalf, renamed Rasul v. Bush when three cases were joined, is credited with opening the door for the blizzard of litigation that followed.

According to Michael Ratner, the radical lawyer and head of the Center for Constitutional Rights (CCR), the center received 300 pieces of hate mail when the organization filed the very first Guantanamo detainee case in February of 2002. 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.

But by 2004, when the first of three detainee cases was heard by the U.S. Supreme Court, the national climate had changed. The country was politically divided, the presidential election was in full swing, and John Kerry was talking about treating terrorism like a criminal nuisance. The Guantanamo cases gave lawyers a chance to take a swipe at the president’s policies, give heroic speeches about protecting the rights of indigents, and be a part of the kind of landmark legal cases that come along once in a lifetime. The Guantanamo Bay Bar increased from a lonely band of activist lawyers operating out of a run down office in Greenwich Village to an association of 500 lawyers. Said Mr. Ratner about the blue chip firms that initially shunned these cases, “You had to beat the lawyers off with a stick.”

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.

There is more, a lot more.

This is not justice, it is a perversion of justice.

The end result of a weakening of the Customary Laws of Warfare via lawfare such as this will be a return to a more barbaric form of warfare, in which there is no benefit and thus no attempt made to sort combatant from innocent nor to make any attempt to capture the enemy.

Out Here
Rodney Graves
rodney.g.graves@gmail.com