Court Jousters

A Small Cartel of Conservative Lawyers Rewrites the American Rule

Third man on the list is a real backroom player: Jim Haynes, 43, Pentagon general counsel and Defense Secretary Rumsfeld's chief legal adviser. Haynes has served as a vice president of General Dynamics and was the army's general counsel under the original Bush. Plainspoken like Rummy and no-nonsense, he's especially important because he worked in the Pentagon during the Gulf War and knows how to adapt to fast-changing situations on Washington's political front. And he's had experience in Central Asia, developing small businesses as part of a relief project in oil-rich Kazakhstan.

Haynes drafted the outline for the Bush administration's military tribunals, which will try suspected terrorists. They require that only the presiding officer be from the judge advocate, with the other jurists being "competent and educated people." In describing the commission, Haynes said, "Well, there are some similarities to Nuremberg and there are some dissimilarities to Nuremberg. These procedures are, frankly, much more detailed, and in many respects are more generous than what was done at Nuremberg."

Haynes knows his place. "My agenda is driven by the secretary of defense," the low-key Harvard grad has said. "He is a very energetic man, and I just try to keep up with him. Hopefully I'm a little ahead of him from time to time."

These three lawyers are at the vanguard of the legal attack, but they are scarcely by themselves. Rather, they're part of a loose, extensive team of conservative lawyers who have collected here over the years. Some have clerked for justices Scalia and Thomas. Some learn about liberals by working in their midst as "counter clerks."

They mostly know each other, sometimes from Harvard Law. Several of them, like deputy AG John C. Yoo, also share the experience of having clerked for conservative D.C. Appeals Court judge Silberman. Just about everybody seems to have some attachment to the Federalist Society and, when it comes to policy matters, the Heritage Foundation, whose links to the administration and conservative lawmakers are preeminent.

The Federalist Society is often pictured in the liberal media as some sort of darkly sinister cesspool of conservative thought. Conservatives more often view it as their own ACLU. "It's certainly not some kind of a pipeline into the hearts and minds of decision makers," says David Rivkin, a D.C. attorney in private practice whose work appears on the Federalist Web site.

Of all the Federalist members, perhaps the best known is Solicitor General Olson. An assistant attorney general under Reagan, Olson has popped up at just about every event in D.C. since then, defending convicted spy Jonathan Pollard, representing Starr, advising Paula Jones and Monica Lewinsky, and supposedly taking part in the infamous Arkansas Project, which tried to link Clinton to mob dope runs from Central America into Mena, Arkansas. Olson has denied any connection. He is perhaps most famous for this statement: "There are lots of different situations when the government has legitimate reasons to give out false information."

Ruth Wedgwood, a Yale law professor, currently serves as a Bush flack on legal matters, appearing here and there, especially on Jim Lehrer's terribly correct NewsHour. Civil rights? No problem, says Wedgwood, as in this smart analysis of the situation after Chicago thug Jose Padilla was arrested: "So your dilemma is, do you want to let folks go when you have good intelligence that they are involved in such things as terrible as a dirty bomb that would really destroy city blocks and thousands of people's health, or do you want to simply . . . treat it in a criminal-justice paradigm alone? You have to make a choice, really, between evils here, I think."

"Civil liberties aren't in any grave danger. We all need to relax about this."
—jurist Robert Bork, Voice interview, June 14, 2002

Additional reporting: Caroline Ragon, Cassandra Lewis, Gabrielle Jackson, and Joshua Hersh

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