A righteous indignation
Tom Wilner has impeccable establishment credentials. A schoolmate of Al Gore's at Washington's prestigious St. Albans School. A fraternity brother of George W. Bush's at Yale. A highly regarded international trade lawyer with a blue-chip firm, Wilner once lived two doors down from Teresa Heinz Kerry in a six-bedroom colonial home in Georgetown.
Wilner's is not exactly the resume of a firebrand, but in the three years since he agreed to represent several Kuwaiti men held at the U.S. Navy base at Guantanamo Bay, Cuba, that's precisely what he's become. At fancy dinner gatherings, Wilner, 60, by his own account bluntly compares the partying to Germans' living it up while Jews died in Nazi concentration camps. When a federal judge told him that family obligations might delay a hearing for one of his clients in Guantanamo, Wilner scolded her in open court. "Guantanamo is one of the most important cases of a lifetime," Wilner says. "The fact that anyone can ignore it astounds me."
Since January of 2002, the U.S. military has held hundreds of alleged Taliban and al Qaeda fighters at Guantanamo Bay as "enemy combatants." Roughly 200 of the detainees have been released since then, and recent court decisions about this murky area of the law have called into question the legal status of the estimated 540 who remain. But the legal battles continue, and both sides believe that there is much at stake. Conservatives believe that challenges to the detention of potentially dangerous people who are not U.S. citizens threaten to erode the president's power as commander in chief during wartime. Liberals see Guantanamo Bay as a stain on American principle, a prison placed beyond U.S. borders with the intention of evading U.S. laws.
Count Tom Wilner among the latter group. A registered Democrat, Wilner grew up in a family that has always taken its particular notions of democracy very seriously. Tom's grandfather, a Polish immigrant, taught several of his children the Gettysburg Address by age 5. A history buff, Wilner says America's unique roots have shaped his view of the case. "The U.S. is different from other countries; we are not bound by a shared religion or a common race. We are bound by our principles: democracy, freedom, and the rule of law," he says. "These values are challenged in times of crisis, and that's when we must defend them."
Relatives of the Kuwaiti detainees say that they contacted 10 prominent U.S. firms in early 2002 when they discovered that family members were being held at Guantanamo. Seven firms rejected their request outright, but Wilner agreed to travel to Kuwait, where he learned of family claims that some of the detainees were actually in the Afghanistan-Pakistan border region to perform charitable work when they were captured. "These guys were snatched by bounty hunters who were told they could feed their families . . . if they turned in an Arab terrorist," Wilner says. He believes that the men deserve a chance to contest their detentions.
Government officials tell a different story. In February 2004, Defense Secretary Donald Rumsfeld emphasized that prisoners like Wilner's clients were not picked up haphazardly in Afghanistan. Although the military apprehended roughly 10,000 people, fewer than 10 percent were taken to Gitmo. While Wilner argues that many of his clients are "the best of the best," former Justice Department official David Rivkin urges caution about their backgrounds: "It's a fallacy that the best of our enemy in this war is good," Rivkin says.
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."
But in some ways, it's a place--and a case--that he's been looking for his whole life. Wilner had children early and began working at elite law firms as a way to support them. Even though he was representing a diverse roster of clients, he says he wasn't always satisfied. "You go to law school, but you get the feeling you're just selling your talents, arguing cases to make money," he says. But this case has inflamed Wilner's considerable passion. Friends know Wilner as a man who's not afraid to debate a point to death. "At a certain time in the evening, Tom gets pretty feisty and fired up about things," says Carter Cafritz, a Washington developer who uses Wilner as his personal lawyer. "It's hard to find a guy as concerned about the Constitution and the laws of this country."
Born: July 7, 1944.
Family: Married, wife Jane. Three children.
Education: Yale Univ. B.A., 1966; Univ. of Pennsylvania LL.B., 1969.
Current job: Managing partner, international trade and government relations, Shearman & Sterling LLP.
This story appears in the March 28, 2005 print edition of U.S. News & World Report.