Center City firm helping detainees

If a law firm can have a brand, then the trademark practice at Pepper Hamilton L.L.P. would surely be defending big drug companies in sprawling, highly profitable product-liability lawsuits.

But Pepper Hamilton has another category of cases that also are high-profile and, arguably, high-impact, but that generate nothing in the way of fees.

For the last four years, Pepper Hamilton lawyers have represented a handful of Guantanamo detainees picked up by U.S. forces or their allies in Afghanistan and Pakistan. Pepper lawyers, like those for other large law firms around the country, have donated their time to help win the release of accused jihadists who they say have been improperly incarcerated.

Their effort has won praise from the left, which has been highly critical of the U.S. war on terror and dismissive of the Bush administration's arguments that the men imprisoned at the U.S. naval base in Cuba represent a national security threat.

But there are critics on the right, notably prominent Republican lawyer David Rivkin, who has argued that the U.S. conflict with al-Qaeda is essentially a war, and that the prisoners at Guantanamo therefore should not have access to U.S. courts. The U.S. Supreme Court settled the matter in 2006, ruling that detainees could have access to U.S. civilian courts.

Pepper lawyers contend that a thorough review of the evidence against Guantanamo detainees could change the minds of those who believe the vast majority are rightfully incarcerated.

That is, of course, if such a review were possible.

Virtually all of the evidence against the detainees is classified and not open to public inspection. Only defense lawyers with security clearances, the detainees themselves, and judges can review the information.

What's more, the rules governing Guantanamo cases bar defense lawyers from deposing government witnesses or subjecting other evidence to critical scrutiny. To lawyers like Charley Carpenter, a Pepper staffer until last month, when he left the firm to set up a solo practice in Missoula, Mont., that means the deck is stacked.

"Most of us have had the same experience," Carpenter said. "You open a file and you say, 'Oh man, there are all these horrible things in it.' Then you start digging and all of a sudden this and that and other things start falling out."

Carpenter, 50, will still represent Guantanamo detainees for Pepper Hamilton. He and other lawyers there have handled the cases of three accused jihadists since 2005, part of a substantial pro bono practice at the firm that also includes representation of low-income Philadelphia homeowners with unclear title to their homes.

Pro bono lawyers at the firm helped win acquittal for a U.S. Marine last year accused of war crimes in Iraq. Overall, Pepper Hamilton lawyers did about $3 million in pro bono work last year.

One of the Guantanamo detainees, Rami Al Oteibi, a Saudi who was picked up in Pakistan, already has been released, with virtually all the other Saudis who had been held at Guantanamo.

Two others, Hani Salah Rashid Abdullah, a Yemeni who was picked up in Karachi by Pakistani authorities in 2002 during a series of coordinated raids that also netted al-Qaeda planner Ramzi bin al Shibh and Maher El Falesteny, a Palestinian who was picked up in the Tora Bora region of Afghanistan in late 2001, have habeas corpus cases pending in federal district court in Washington.

Carpenter asserts that what characterizes the cases is a thin thread of highly circumstantial evidence that falls apart as soon as you touch it.

When U.S. forces were sweeping with Afghan allies through Afghanistan in late 2001, Arabs in the region were almost automatically deemed to be jihadist sympathizers and were picked up en masse, said Carpenter, a phenomenon he and other defense lawyers call "driving while Arab."

Carpenter has traveled a half-dozen times to Guantanamo to meet with his clients on Pepper's dime.

One of them, Falesteny, has filed an affidavit accusing his U.S. captors of torturing him. He said that at the beginning of his stay at Guantanamo, he was kept for six hours at a time shackled to the floor in a small interrogation room.

An interrogator nicknamed "Torture" by the prisoners kicked him repeatedly, he claims. He said he was doused with water and forced stay in an overly air-conditioned room, which caused him chronic health problems.

Carpenter said that what seemed to matter most to the Pentagon in determining whether to release detainees was whether they are citizens of an important ally, such as Saudi Arabia.

"The longer I have been at this, the clearer it has become that the [U.S. officials] were not complying with law," Carpenter said. "They put prisoners in Guantanamo in order to hide from the law.

"I am not saying that you have to have robed federal judges following our armed forces through every gully and hamlet, but when you get a [prisoner] to the rear, and the guy says, 'I am not a combatant,' you should have a system to adjudicate that."