A righteous indignation
Taking on the cases so soon after September 11, Wilner found that few people were enthusiastic about his newfound cause celebre. Many in his firm, Shearman & Sterling, were initially opposed, as was his wife, Jane. "I knew I would do the case," Wilner says. "I would have resigned to do it." Almost all the lawyers working on the issue were with the Center for Constitutional Rights, a human-rights group that frequently knocks heads with the government. "Tom really added legitimacy to the cause," says Anthony Lake, former national security adviser to President Bill Clinton. "What he did was an act of courage."
Hate mail. Courage turned out to be necessary. Wilner began receiving hate mail, at one point reaching 100 E-mails in a single week. And on the legal front, things weren't going well, either. In 2002 and 2003, federal courts ruled they had no jurisdiction to consider the cases of Guantanamo detainees. But Wilner pressed on. He wrote a brief for the Supreme Court noting that even the iguanas at Guantanamo were protected under the Endangered Species Act. "He has a colloquial, experienced, almost folksy legal style," says Joe Margulies, another lawyer who's worked on Guantanamo cases. "And it works."
Finally, in June 2004, he got good news; the Supreme Court ruled that detainees could not be held without some form of trial or hearing. The Defense Department responded by creating "combatant status review tribunals," military boards that would allow detainees to contest their status. But lawyers like Wilner continued to push for detainees to have their day in court. Those efforts have met with mixed success. One judge ruled early this year that he could not intervene in the government's handling of detainees, while another said the prisoners were entitled to access to the courts. The federal appeals court in Washington, D.C., will take on the cases this summer.
Some suggest that the lawyers' strategy may be paying dividends. The New York Times reported this month that the Pentagon was seeking to slice the Guantanamo Bay population by more than half, partly by transferring hundreds of detainees to Yemen, Saudi Arabia, and Afghanistan. Officials also said they hoped to release dozens whose cases are being reviewed by boards that will determine if the prisoners pose a threat. "We hope our cases took away Gitmo as a loophole," Wilner says. "And I'm hoping my guys will soon travel home."
It's certainly been a long, strange trip. For more than two years, Wilner represented his clients without ever meeting them; that right was granted only in October 2004. Wilner first trekked down to the base in January 2005 and says the world he has seen there is nothing short of "Kafkaesque." Lawyers ride down to Gitmo on a prop plane--Air Sunshine from Fort Lauderdale, Fla.--and stay in officers' quarters a 90-minute bus and ferry ride away from the detention center. "Let's just say they're not really hiding the fact they don't want us there," Wilner quips. He meets with his clients in small rooms where the men sit with their legs shackled to the floor. Some are emaciated, and most claim they've been tortured. Wilner also alleges that one military interrogator told a detainee not to trust him because Wilner is Jewish. Military officials have denied the accusation. Says Wilner: "It's another piece of despicable dirt in a horrible place."