Law Review: The law, not ideology, motivates Guantanamo attorneys

In 2008, the U.S. Supreme Court largely agreed. In Boumediene v. Bush, Justice Anthony Kennedy, the court's center-right swing vote, wrote in a majority opinion that prisoners of war held in what was effectively a U.S. jurisdiction must have some minimum process to challenge their detention. (Read the suit at .)

Critics of the Guantanamo legal assault asserted early on that if the detainees had a right to habeas corpus, it wouldn't be long before U.S. soldiers were reading Miranda rights to captured soldiers on the battlefield.

But as University of Pennsylvania law professor Kermit Roosevelt notes, Boumediene does nothing of the kind. In this context, the U.S. Constitution applies only in places under control of the U.S. government.

"Boumediene really turns on the unique status of Guantanamo as a place under complete U.S. jurisdiction and control," Roosevelt said.

Even so, representation of Guantanamo prisoners has been a politically sensitive issue for some firms. Walters said he had concerns initially about criticism from clients and lawyers.

But the firm's management committee signed off on the representation within a day after Walters and two lawyers in the firm's Washington office, Douglas Spaulding and Bernie Casey, made the proposal. One client did object but dropped the matter after Walters explained the underlying issues.

In the end, the vast majority of Guantanamo inmates were released without hearings. Peter Ryan, a commercial litigator who represented a group of 16 Guantanamo detainees while he was a lawyer at Dechert before he moved to Cozen O'Connor earlier this year, says 11 of the detainees already have been released by the Pentagon without explanation. One, a tribal leader who was picked up based on the word of an informant, now is running for public office in Afghanistan.

Ryan is not sure his representation had any impact, but he says it was important for Americans to establish some minimal procedure for separating real combatants from others who had been mistakenly picked up.

"It was a simple process question, the idea of having a neutral decision-maker decide whether the facts and the law supported" the detentions, Ryan said.

For lawyers like Walters and Ryan, after all the legal debate and maneuvering, that was the basic point. Prisoners who faced endless confinement in what seems to be a never-ending war on terror ought to have some means to show why perhaps they should be freed.

For these lawyers, it is a concept that has nothing to do with politics and ideology - and everything to do with the law.

Contact staff writer Chris Mondics at 215-854-5957 or cmondics@phillynews.com.