The American Lawyer’s Six Guantánamo Bar Profiles: Thomas Wilner, David Remes, Jennifer Cowan, Wells Dixon, David Nevin and Lee Wolosky

The November 2015 issue of The American Lawyer featured a “Special Report: The Guantánamo Bar,” consisting of six interviews with attorneys who have worked on Guantánamo. I’m cross-posting them below, as I think they will be of interest, and I also estimate that many of you will not have come across them previously.

The six lawyers featured were: Thomas Wilner of Shearman & Sterling; David Remes, formerly of Covington & Burling; Jennifer Cowan of Debevoise & Plimpton; J. Wells Dixon of the Center for Constitutional Rights; Public Defender David Nevin; and Lee Wolosky of Boies, Schiller & Flexner. Wolosky was appointed last June as the White House’s special envoy for Guantánamo closure, while the rest have represented prisoners held at Guantánamo.

Thomas Wilner represented a number of Kuwaiti prisoners, and also represented the prisoners in their habeas corpus cases before the Supreme Court in 2004 and 2008. He is co-founder, with me, of the Close Guantánamo campaign, launched in January 2012, through which, for the last four years, we have been attempting to educate people about why Guantánamo must be closed, and who is held there, and I’m pleased to note that The American Lawyer described him as “the most vocal proponent in the Guantánamo bar for the closure of the offshore prison.”

I also know David Remes (who has represented over two dozen prisoners, mostly Yemenis) and Wells Dixon (who “oversees a staff of four attorneys, two paralegals, a political adviser and two fellows” at CCR), although I have not met Jennifer Cowan (whose firm has represented five prisoners), David Nevin (who represents Khalid Sheikh Mohammed) or Lee Wolosky, but I am pleased to see them all interviewed, and I hope you agree that the six interviews provide a fascinating insight into Guantánamo. Please note that all the links in the interviews below are ones that I have added.

The Pioneer: Thomas Wilner

Shearman & Sterling’s Thomas Wilner recalls the TV footage of detainees, clad in orange jumpsuits, being herded into open-air cages in Guantánamo in early 2002. “My first reaction was, ‘Thank God we got these guys who did this horrible thing to us,'” he says. Two months later, however, Wilner, then a partner in the firm’s Washington, D.C., office handling a variety of trade, litigation and government regulatory matters, got a call from some wealthy Kuwaiti families whose sons or husbands had gone missing in 2001. Could he help with a missing persons matter?

Ultimately, a dozen were found to be in U.S. custody at Guantánamo, and Wilner would represent all of them. He soon came to wonder whether his clients had been arrested by mistake. Families in Kuwait showed him evidence they said proved that their son or husband had gone to Afghanistan to do charitable work. Further investigation revealed that most had been arrested by Pakistani tribespeople and police after they had crossed the border to escape U.S. air strikes in Afghanistan and sold as “Arab terrorists” into U.S. custody for bounties.

Wilner’s matter would quickly evolve into one of the first Guantánamo habeas corpus suits. Filed on May 1, 2002, his suit on behalf of the Kuwaitis would eventually be consolidated on appeal with the Center for Constitutional Rights’ original case, Rasul v. Bush.

Coming two years before other large U.S. firms got involved, Wilner’s decision to help the Kuwaiti detainees was radioactive; there was a real risk that Shearman’s clients would object. When Shearman’s then-senior partner, David Heleniak, heard about the case, he “was furious,” Wilner says. Wilner volunteered to resign from the firm to pursue the case, but Heleniak wouldn’t let him. Despite some bad press, including a Wall Street Journal report that noted that the firm was “handsomely paid” by the Kuwaitis, Shearman’s commitment would continue for the next decade. (Shearman says it donated its hourly fees from the case to charity.)

The U.S. Supreme Court’s decision in Rasul opened the doors to individual habeas cases on behalf of detainees, and hundreds would eventually be filed. But even after the Rasul ruling, there still wasn’t a protocol for how to do it. “We said, ‘We want to go visit our clients,'” Wilner recalls. “The government waffled, then said, ‘You can only go in if we can eavesdrop on your conversations.'” Shearman went back to court, winning a key ruling prohibiting the government from doing so.

Then, in a pattern that would be repeated after future landmark pro-detainee decisions, Congress passed legislation eliminating habeas rights completely, prompting another suit by CCR, Shearman, Wilmer Cutler Pickering Hale and Dorr and other firms. Those cases, later consolidated on appeal as Boumediene v. Bush, invalidated the legislation and affirmed that the detainees’ habeas rights were guaranteed by the Constitution.

While many other habeas lawyers fought alongside Wilner in those landmark cases, Wilner has also taken the fight to Capitol Hill throughout the past decade. In the past five years, as Republicans have attempted to undermine the president’s ability to transfer cleared detainees and to close the base, Sen. Carl Levin, D.-Michigan (now retired), sought out Wilner’s advice repeatedly in finding ways to soften the language of such legislation.

In late 2010, as part of its annual National Defense Authorization Act, Congress blocked transfers of any detainee not ordered released by a court, unless the secretary of defense issued a personal certification ensuring that the individual transferred “cannot engage or re-engage in any terrorist activity” — an impossibly high bar. The next year, an amendment, drafted by Levin and vetted by Wilner and others, allows the president to waive certification requirements if he or she determines that the country receiving the detainee had taken steps to “substantially mitigate” the risk that the detainee would become a threat again. Eventually, that waiver, combined with additional amendments in 2013, would hasten the transfer of scores of detainees cleared by a presidential multiagency task force.

Though he no longer has any clients at Guantánamo, Wilner remains among the most deeply engaged lawyers in the private bar pushing detainee issues politically. He continues to work with the administration and key members of Congress, including senators Richard Durbin, Dianne Feinstein and John McCain.

He’s also the most vocal proponent in the Guantánamo bar for the closure of the offshore prison. “Tom Wilner has always been full-throated and passionate about closing Guantánamo,” says Morgan, Lewis & Bockius counsel P. Sabin Willett, who represented a group of Uighurs who were all transferred to third-party countries. “For him, it’s a patriotic duty as much as anything else.”

Wilner says that the unbroken string of D.C. Circuit court decisions backing the government’s right to indefinitely detain prisoners at Guantánamo Bay has cut the heart out of the Gitmo bar’s legal efforts. “A lot of the people involved in the habeas cases now — it’s just wheel-spinning in the courts,” Wilner says. “The real battle is to get the White House to act. By not acting, the administration has allowed Congress to harden restrictions against transfers and closure.”

The Solo Practitioner: David Remes

While most habeas counsel have seen their Guantánamo docket wither, David Remes has doubled down on his. With the backing of his former firm, Covington & Burling, Remes currently represents 17 clients, 16 of them Yemeni, more than any other lawyer or firm. Over the past 11 years, he has represented more than two dozen.

He and others at Covington, among the first to volunteer to take on the habeas cases, were originally assigned 13 Yemeni clients. At a peak in the mid-2000s, more than a dozen lawyers and staff worked on the cases, providing the litigation muscle behind some watershed Supreme Court cases, including Hamdan v. Rumsfeld and Boumediene v. Bush. Though Covington won five habeas cases in federal district court, the U.S. Court of Appeals for the D.C. Circuit negated those victories.

Unlike most other habeas counsel, Remes found his roles as Covington partner and Guantánamo advocate increasingly difficult to combine. His public, often adversarial stances, whether on detainee mistreatment or limitations on his ability to represent his clients, set him apart from most other law firm volunteers. Things came to a head in July 2008 at a news conference in Yemen. Acting on impulse, Remes demonstrated just how invasive the Guantánamo guards’ genital searches of detainees were: He thumbed around the waistline of his pants; his belt came undone, and his trousers fell. Photographs were taken. Within days, he had resigned from the firm. “It hastened the inevitable,” Remes says. “I had gradually lost interest in anything else at the firm. I couldn’t be a lawyer-activist and also a Covington corporate lawyer.”

Operating as a solo human rights lawyer, Remes has continued to co-counsel with his former firm on 15 cases. Since 2008, he’s partnered with Brian Foster, a senior associate who has had the lead role on several habeas cases, supported by seven other lawyers at the firm.

When the habeas cases stalled, however, Remes pivoted into a new area. He’s one of the handful of private lawyers assisting the so-called forever detainees — 51 men categorized in 2009 as “law of war detainees,” including some referred for prosecution but never charged — before the newly created Periodic Review Board (PRB). The interagency board, rolled out by the Obama administration in 2011, is tasked with reviewing the status of those detainees who were previously deemed too difficult to try but too dangerous to release. It operates much like a parole board, evaluating not the legality of a detainee’s detention, but what risk, if any, he still poses.

Remes, with Covington providing assistance, has helped three Yemeni detainees win “cleared” status, though all remain detained awaiting transfers. In July, he assisted a fourth, whose status hadn’t yet been decided at press time; six more of his clients await review.

In written and oral submissions on behalf of his client Mahmud Al Mujahid, for example, Remes told the board that Mujahid, allegedly one of scores of bodyguards of Osama bin Laden, was a “natural leader” and a “peacemaker” at the camp. But what most appeared to sway the board in its November 2013 decision clearing Mujahid, he believes, was the testimony of a former Yemeni foreign minister who spoke about Mujahid’s high standing in Yemeni society as the scion of an ancient family of judges and lawyers. Another Remes client, Abdel Malik Wahab, also an alleged former bin Laden bodyguard, was cleared after his second PRB hearing last December; Remes believes that Wahhab’s new personal appeal to be reunited with his wife and daughter resonated with the board.

Hearings, like everything in Guantánamo, initially moved at a snail’s pace, but since spring, the tempo has quickened; of 17 completed status reviews, 13 have been cleared [note: now 20 out of 24]. “I do think the board feels the pressure to move quickly,” Remes says. “There is a new sense of urgency.”

Remes says he is sustained by the deep personal connections he has forged with his clients and their families over scores of visits to Guantánamo and 11 trips to Yemen. One client in particular haunts him: Adnan Farhan Abdul Latif, who died in his cell of a drug overdose in 2012. The military called the death a suicide, though Remes and others dispute the finding.

Captured in 2001 by Pakistani authorities and transferred to U.S. custody, Latif was among the earliest to be sent to Guantánamo in January 2002. He was cleared three times by the Bush-era military Combatant Status Review Tribunals, and approved for transfer, but the Bush administration wouldn’t release him and other cleared Yemenis.

His habeas case also proved a dead end. A year after the Boumediene decision, Latif was ordered freed by a U.S. district judge, who said he wasn’t convinced by the government’s uncorroborated evidence — a single interrogation report — that Latif was involved with al-Qaida. The government appealed, and the D.C. Circuit reversed.

The court ruled that judges had to presume that the government’s evidence, even an uncorroborated intelligence report, was true unless there was “clear evidence to the contrary,” shifting the burden of proof to the detainee.

In 2011, the U.S. Supreme Court declined to hear his appeal. Latif, who had spent years in a hunger strike to protest his continued detention, force-fed via a nasal tube and in solitary confinement, “was in utter despair” by the time he died, Remes says.

The Innovator: Jennifer Cowan

In January 2009, a week before President Obama was sworn in, Debevoise & Plimpton counsel Jennifer Cowan was visiting her clients detained at Guantánamo when she thought to herself, “I have to remember everything about this place, because it’s not going to be here soon.”

She was wrong: A decade since she first took five cases on, Cowan, now the firm’s pro bono counsel, still represents two Yemeni detainees, one cleared for transfer in 2010 and the other recommended for continued detention without charge. Her team has continued to win individual habeas cases, despite court rollbacks of detainee rights.

Cowan says that on her first trip to Guantánamo in early 2006, her clients were “rightfully suspicious of us.” They had already been held four years and interrogated by many people. “Then, one day, a new set of Americans shows up and says, ‘Hi, we’re your lawyers, and by the way, we’ve visited your families in Yemen,” she says. Trust developed over dozens of trips to the base, where she and her colleagues would talk with each client for hours over fast food from a commissary as well as Middle Eastern food, until outside food was banned in July.

The food ban is just the most recent of many restrictions that Cowan and her clients have contended with. In 2008, for instance, the prison began subjecting detainees to groin searches anytime that they left their cells. In 2013, a federal district judge ordered the searches ended, calling them unnecessary and finding that they were meant to “actively discourage” detainees from meeting with their lawyers. (The U.S. Court of Appeals for the D.C. Circuit later overturned that decision.)

Cowan and her team gained the release of an Afghani client, Haji Bismullah, days before Obama’s inauguration in 2009. They did so by providing the government with evidence, which the firm developed itself, that, rather than being an enemy combatant, Bismullah had fought the Taliban — that he was, in fact, a member of the pro-American Afghan government. Among the evidence were sworn statements from Afghan officials that Bismullah had been framed by Taliban collaborators who wanted to take over his provincial position; one accuser had even stolen his car after his arrest.

The Debevoise lawyers also gained the release of a Sudanese client, Ibrahim Idris, who is bipolar and diabetic. He had been cleared in 2009, but as is the case with many Sudanese, his case had been stayed indefinitely. In October 2013, the Debevoise team obtained a habeas writ for Idris using a novel argument: not that Idris wasn’t being legitimately held, but because he was unable to function independently, he was no longer a battlefield threat and should be released under Army regulations governing the treatment of detainees. It remains the only court-ordered release of a detainee by a U.S. district court since 2010.

Because a court-ordered release falls under an exception to the congressional ban on detainee transfers to state sponsors of terrorism such as Sudan, Idris was flown home two months later. When Cowan received a message that his plane had landed in Khartoum, she burst into tears. Although Idris wanders the house all night mutely, his family tells her that he seems content.

Idris was joined on that flight by another Sudanese detainee, one of the few who had pled guilty to a war crime. He had already completed his sentence. Says Cowan: “It is a source of great frustration to everyone that the ones who have been lucky enough to be accused of specific crimes and plead guilty have been released, but those who haven’t faced charges are still there, with no avenue to release.”

The Point Man: J. Wells Dixon

J. Wells Dixon moved to New York from Hartford on Sept. 11, 2001, to start a job as an associate at Kramer Levin Frankel & Naftalis. At the time, he says, he could never have imagined that 14 years later, he’d be representing a defendant who is now a cooperator against some of the defendants in the 9/11 attacks.

Dixon’s client, Majid Khan, whom he shares with cocounsel, Jenner & Block partner Katya Jestin, a former prosecutor in the Eastern District of New York, is the only one of 14 so-called high-value detainees who has pleaded guilty to any crimes. Khan has acknowledged working with Khalid Shaikh Mohammad in Pakistan after 9/11 on other terror plots, including couriering funds to al-Qaida associates to fund a hotel bombing in Jakarta and discussing other possible terrorist strikes in the U.S.

Khan, a Pakistani who grew up in Baltimore and received political asylum in the United States in 1998, is just one of dozens of detainees represented over the years by Dixon, the senior staff attorney overseeing the Guantánamo cases for the Center for Constititional Rights (CCR). Unlike Khan, the rest of his clients have never been accused of a crime. While most have been repatriated or transferred to third countries over the years, Dixon still represents four detainees, including Khan.

In 2005, CCR tapped Kramer Levin to represent seven Chinese Uighurs held at Guantánamo since 2002. Dixon, then an associate at the firm, joined senior white-collar defense partners Gary Naftalis, Paul Schoeman and Eric Tirschwell in representing them.

The first thing his first Uighur client told Dixon in 2006 was that he had been cleared by a Combatant Status Review Panel four years earlier — information that the government had withheld from his attorneys. “That sort of set the hook for me,” Dixon says. Within a year, Kramer Levin agreed to loan Dixon to CCR, a temporary arrangement that became permanent in 2007. Dixon now oversees a staff of four attorneys, two paralegals, a political adviser and two fellows.

Over the years, Khan has told his legal team about his torture and mistreatment, but much remained classified even after some of Khan’s torture was outlined in a Senate report last year. Recently declassified notes provide more detail: Khan was beaten repeatedly, waterboarded twice, hung from a beam for days, and spent much of 2003 in total darkness. He is expected to be sentenced next year for charges that include murder, spying and conspiracy in an al-Qaida bombing in Indonesia, a plot to kill then-Pakistani President Pervez Musharraf and a plan to blow up gas stations in the United States.

Although Dixon has traveled far from the career path he’d imagined in 2001, his story is similar to the Guantánamo bar’s other Big Law members. “I came to these cases like a lot of lawyers,” he says. “The idea that the government would create a prison entirely outside the law was against everything I’d been taught as a lawyer and as a citizen. It was shocking to me.”

The Public Defender: David Nevin

In his 37-year legal career, David Nevin of Boise’s Nevin, Benjamin, McKay & Bartlett has often taken on clients other lawyers shy away from. He won an acquittal for Kevin Harris, a co-defendant in the 1993 criminal trial arising from a shootout with federal agents in Ruby Ridge, Idaho, and for Sami al-Hussayen, a Saudi graduate student at the University of Idaho accused in 2004 of involvement in terrorist activities.

Still, the magnitude of his current case, representing accused 9/11 mastermind Khalid Shaikh Mohammad, is far beyond any other he’s handled. The government has called the case, which involves five 9/11 defendants and is still years away from trial, the largest criminal investigation in history. By comparison, the defense team in the 2006 federal district court criminal trial of Zacarias Moussaoui, which relied on similar evidence, hired 70 lawyers just to read the 350,000 police reports from dozens of countries that were entered into the government’s case.

Nevin’s client, one of 14 high-value detainees, was captured in 2003 and originally held at overseas “black sites,” where he endured CIA interrogations that included being waterboarded at least 183 times. He has not entered a plea in this case, but in earlier proceedings he claimed responsibility for the attacks.

Pretrial hearings, held at a courtroom at Guantánamo equipped with time-delayed speakers and controls to allow officials to block testimony considered classified, have been held up repeatedly since 2009, when the military commissions were reconstituted. For the past 18 months, the hearings have been derailed over now-confirmed accusations that the FBI tried to infiltrate a defense team. Earlier delays were prompted by the discovery of a listening device hidden in a smoke detector in a client meeting room, and a defendant’s complaint that a court-appointed interpreter had previously been used in his CIA interrogations.

Nevin, who has visited the base roughly 75 times since 2008, says he expects hearings in mid-October to finally go forward. Unlike colleagues in the habeas bar, who volunteer their time, he and other defense counsel are being paid $184 an hour by the U.S. government — federal public defender rates for a capital case.

Still, the real discovery battles haven’t even begun. Those disputes revolve around the admissibility of information gained under torture. While his client’s admissions during his torture have been ruled inadmissible, defense counsel for the five are likely to challenge prosecutors’ efforts to introduce evidence that came from others who were tortured. Also a point of contention: admissions made by defendants during their reinterrogation at Guantánamo, which defense counsel assert are also tainted by the past trauma their clients experienced. Meanwhile, the government has rejected, on national security grounds, defense efforts to gain access to all the evidence.

“There’s a tension between national security and the idea of a fair trial,” Nevin says, adding that it’s hard to imagine how the still-untested court will find a way through these and other issues. “You have an immovable object meeting an irresistible force. I just don’t know how that all comes out in the end.”

The Diplomat: Lee Wolosky

As a litigation partner at Boies, Schiller & Flexner, Lee Wolosky is accustomed to pressure and to the spotlight. In his new post as the White House’s special envoy for Guantánamo closure, he’ll have both, in spades. Appointed June 30, Wolosky has just 14 months to find homes for detainees cleared for transfer. As of mid-October, there were 53 of them, although that number will rise as the administration speeds up review of previously uncleared detainees in an attempt to winnow down the population from its current 114 to a score or two.

It won’t be easy. The Pentagon has historically dragged its feet in signing off on approved transfers, and the administration is contending with election-year politics and a proposed defense appropriations bill that would further limit detainee transfers.

Surprisingly, President Barack Obama has been less successful than his predecessor in transferring detainees. George W. Bush resettled 532 detainees; Obama, just 124 to date [note: since this interview, 22 more men have been freed, and 37 of the 91 remaining prisoners are currently approved for release]. The first Guantánamo envoy, Daniel Fried, a career diplomat appointed to the role in 2009, got scores of captives sent home before a congressional mandate shut down his efforts down in 2011. Just four detainees were transferred in the next two years; though Obama retained the right to waive congressional restrictions, he never used the option. The office was closed until May 2013, when Skadden, Arps, Slate, Meagher & Flom litigation partner Cliff Sloan was appointed; he gained the release of 39 detainees before resigning last December, frustrated at the slow pace of transfers.

But habeas lawyers have high hopes for Wolosky, who combines courtroom toughness with Beltway insider status. He had a two-year stint as White House director of transnational threats before moving to Boies Schiller’s New York office in 2001. There he handled major litigation on behalf of former American International Group Inc. CEO and cochair Maurice “Hank” Greenberg, as well as families of terrorism victims in terrorism-financing cases.

“We’ve got 53 people to move,” Wolosky says. “That’s ultimately the metric of success.” He says his office will find countries willing to take all the cleared detainees. The bigger challenge, he concedes, may be shepherding those transfers through the federal bureaucracy. Six agencies have to sign off on each one: The U.S. departments of Defense, Justice, Homeland Security and State, the Joint Chiefs of Staff and the Office of the Director of National Intelligence. Those agencies are split. While Obama has commanded Wolosky and his counterpart at the Department of Defense, Paul Lewis, to transfer as many cleared detainees as possible, the Pentagon has repeatedly stalled on approving them, while the Justice Department maintains a rigid policy of opposing all habeas petitions, even for very sick detainees.

The latter policy is now under review, The New York Times and others reported this summer. One impetus said to cause a rift in the administration was the much-publicized case of Tariq Ba Odah, a Yemeni detainee cleared in 2009 who has been on a hunger strike for eight years. Citing Ba Odah’s severe physical and psychological deterioration — he now weighs 75 pounds — his lawyers petitioned for his release on humanitarian grounds. In September, after months of delays that it said were needed to review its position, the Justice Department filed a brief opposing his release.

Wolosky won’t comment on the reports, but notes that “it does impact our diplomatic engagement if we have a schizophrenic policy.” In September, after a quiet two months, things started to move. In just 10 days, three cleared detainees were suddenly released, including two Saudis and a Moroccan. More may be announced soon.

“When we hold people for 13 or 14 years without charging them criminally and are facing the prospect that they may die in custody without due process, that’s a fundamental miscarriage of justice,” Wolosky says. “That’s something we need to fix.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ is available for download or on CD via Bandcamp — also see here). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.