Debra Burlingame testifies about terrorists, lawyers and Guantanamo today

Debra Burlingame’s brother, Charles “Chic” Burlingame, was the pilot of American Airlines Flight 77 on September 11, 2001. Al Qaeda terrorists hijacked that aircraft and crashed it into the Pentagon in Washington. Since shortly after 9-11, Debra Burlingame has made it her mission to preserve her brother’s memory and to make sure that America’s resolve in the fight against al Qaeda neither falters nor wavers.

She will testify before the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security today about the treatment of captured enemy combatants held at Guantanamo Bay, Cuba. Here are some excerpts of what she will say.

Thank you for the opportunity to be here today to offer my testimony on this subject of vital importance to the American people. The issues surrounding the question of the legal rights of Guantanamo detainees are both novel and complicated. Even the United States Supreme Court, which was prepared last spring to let Congress and a lower court have the last word on the matter, has decided to weigh in once more. No matter which side of the debate one finds most persuasive, clearly, all can agree that these issues and their consequences resonate far beyond the factual circumstances of the 300 or so individuals still detained at Guantanamo Bay.

As we sit here today, 192,000 American men and women in uniform are deployed in some of the most dangerous places in the world. They and our coalition partners continue to take enemy fire, to sustain casualties, to risk their lives in order to attain and preserve the kind of battlefield intelligence that may yield vital, life-saving information in the war on terror. Conferring full habeas corpus rights on alien enemy combatants during wartime is something no English or American court has granted in the 800-year history of Anglo-American jurisprudence. Today, it is our troops who bear the heaviest burden in carrying out the will of Congress. Congress owes it to them and to the American people to consider the full consequences of granting this level of extraordinary relief to the kind of people who detonate IEDs, who use suicide vests to target tourists and commuters, and who crash commercial airliners filled with innocent men, women and children into buildings.

As a former attorney, I have an appreciation for some of the issues that the high court and Congress must take into consideration as they sort through this difficult problem. I know that the Senate has held numerous hearings on the legal issues surrounding Guantanamo detainees. I am not here as a Constitutional expert or a legal scholar. I am here to discuss an issue about which I believe this committee should be aware, and which may be one of the reasons the legal rights of detainees at Guantanamo Bay is on the table today. I believe it goes to the heart of the practical debate, not over the issue of whether a reasonable interpretation of the Constitution does or does not give enemy combatants full access to our federal courts, but whether, in fact, it should. John Adams wrote in 1776 that “we are a nation of laws, not men,” but I would ask, who writes the laws and to what end?

There is no reason why we must be rendered helpless by our own refusal to find creative ways of adapting our laws to reflect the changing circumstances of our times. Americans fundamentally understand and accept that we are a nation of laws, but they do no accept that this means they must surrender their security to terrorists, individuals who would exploit and hide behind our enlightened laws in order to use weapons of mass destruction to kill thousands of people in a single act. Our laws should not leave us defenseless. I simply refuse to believe that “rule of law” means that we must rigidly adhere to a particular line of reasoning when interpreting legal cases—cases which were decided long before modern warfare-by-suicide against civilians became a terrorist tactic—and reach the astounding conclusion that unlawful enemy combatants are entitled to the same due process rights as American citizens and U.S. residents. The terrorists know what kind of impact extending civilian due process rights to groups like Al Qaeda would have. When Khalid Sheikh Mohammed was captured and handed over to the United States, he reportedly initially told his interrogators, “I’ll talk to you guys when you take me to New York and I can see my lawyer.”

Extending litigation rights to people like KSM would deny us valuable information about terrorist organizations, and could cause the deaths, not just of hundreds of people, but of whole populations. Surely being “better than our enemies” doesn’t mean that we are so morally vain that we are willing to sacrifice our children and grandchildren to prove it.

She will also testify about law firms that have been defending the Gitmo detainees and whether and how they are being paid for their work, answering a question that I and others have been wondering about for a long time now.

First, I learned that the widely-held belief that all of the Guantanamo attorneys are working pro bono is simply not true. The FN Radio interview raised the issue of lawyer fees, and who might be paying them. The DOD official answered, “It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.”

Michael Ratner, head of the Center for Constitutional Rights (CCR), subsequently told the New York Times that none of the 500 lawyers associated with Guantanamo detainee representation are being paid. The article reported that Tom Wilner, from the Washington D.C. firm of Shearman & Sterling and the lead attorney who joined the CCR in filing the first Guantanamo case in 2002, Rasul v. Bush, said that his firm received money from the families of the 12 Kuwaiti detainees but all of it was donated to charities related to the September 11 attacks. This is lawyerly wording. Perhaps Shearman did “receive money from detainee families,” but the government of Kuwait has acknowledged that they are paying all of the detainees’ and their families’ legal fees, which were reported to run in the millions of dollars. According to one news report in 2004, the fees had reached at least two million dollars. This raises several questions. Why would Shearman hide that information? Which, if any “9/11 charities” received donations and how much were they? Mr. Wilner isn’t saying. He gave an interview in which he dodged questions about Shearman’s pro bono billable hours.

In addition to its legal services, the firm registered as an agent of a foreign principal under the Foreign Agents Registration Act of 1938 (FARA) as well as the Lobbying Disclosure Act of 1995 (LDA) to press the Kuwaiti detainees’ cause on Capitol Hill. Shearman reported $749,980 in lobbying fees under FARA for one six-month period in 2005 and another $200,000 under the LDA over a one-year period between 2005 and 2006. Those are the precise time periods when Congress was engaged in intense debates over the Detainee Treatment Act and the Military Commissions Act, legislation that the government of Kuwait and Shearman & Sterling hoped would pave the way for shutting down Guantanamo permanently and setting their clients free.

After my Wall Street Journal piece ran, Shearman reported another $300,000 dollars in lobbying fees under FARA. In response to my article, the firm’s managing partner, Rohan S. Weerasinghe, denied in a letter to the editor that his firm was lobbying on behalf of the government of Kuwait. I suppose this means that while the nominal clients are the detainees and their families, the interests and motives of the entity footing the millions of dollars in legal and lobbying bills don’t count. This raises more questions. These aren’t ordinary criminal cases. These are cases in which individuals committed to martyring themselves in pursuit of the deaths of thousands of American civilians and U.S. soldiers are agitating through their attorneys for access to the federal courts, as well as for access to classified information. Shearman & Sterling’s reluctance to publicly acknowledge the entity financing this litigation may be nothing more than a high-profile firm being embarrassed that it is making millions of dollars in fees in furtherance of acquiring the release of committed jihadis from U.S. custody while men and women of the U.S. armed services are under fire in Iraq and Afghanistan. I submit that the ordinary rules of confidentiality which pertain to the matter of legal fees are a great problem in these cases. It is not too hard to imagine Al Qaeda’s sympathizers and the terrorist fund-raisers whom the U.S. Treasury Department is trying to apprehend might subsidize these cases in the federal courts and generate more bad press for American and anti-U.S. propaganda while they do it.

To be fair, Shearman & Sterling isn’t the only law firm cashing in. Arnold & Porter, another D.C. firm, also reported $380,000 in lobbying fees on behalf of the “International Counsel Bureau”—which is nothing more than a P.O. Box in Safat, Kuwait—and “the Kuwaiti Detainees Committee.” Their FARA registration indicates that they “contacted members of Congress, congressional staffers, and media representatives, in an effort to obtain due process for the Kuwaiti detainees in U.S. custody at Guantanamo Bay.” These lobbying efforts appear to be having a tremendous effect.

She will cover the public relations campaign that has been used to drive public opinion around the world against the US on the issue of keep Gitmo open.

As I wrote in the Wall Street Journal, the Kuwaiti 12 case is a primer on the anatomy of a guerilla PR offensive, packaged and sold to the public as a fight for the “rule of law” and “America’s core principles.” Begin with flimsy information, generate stories that are spun from uncorroborated double or triple hearsay uttered by interested parties that are hard to confirm from halfway around the world. Feed the phonied-up stories to friendly media who write credulous reports and emotional human interest features, post them on a Web site where they will then be read and used as sources by other lazy (or busy) media from all over the world. In short, create one giant echo chamber.

Burlingame’s hearing begins at 10 am today and will be on CSPAN.

Update: My apologies, C-SPAN has elected not to run the hearing live. It is being streamed on C-SPAN’s site though.