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On a rainy night on Feb. 8, 1952, Robert Pennoyer stood huddled with thousands of other young men and women outside of Madison Square Garden in Manhattan, waiting for the arena’s doors to open. The 26-year-old Pennoyer had recently graduated from Columbia Law School after serving in World War II. America was experiencing, in his words, “a tremendous sense of idealism” and Pennoyer wanted to be a part of it. He became a “foot soldier in politics” and his guiding light was Gen. Dwight Eisenhower. Pennoyer and the others standing in the falling rain outside of the Garden that night were there as part of a “Draft Ike” campaign to convince the then-NATO commander to run for president as a Republican. The doors finally opened and the thousands streamed in, holding We Like Ike signs. They didn’t know that a camera was mounted above the doors and that film of the rally would end up being presented to Eisenhower in Europe. Three weeks later, the general threw his hat into the ring. Everyone knows what happened from there. That job accomplished, Pennoyer went about building a lasting legal career in New York in the less-than-glamorous field of trusts and estates, one that involved his receiving almost every sort of accolade a lawyer can get. Two weeks ago, Pennoyer was one of eight lawyers honored by The American Lawyer magazine (an affiliate of Legal Times) for lifetime achievement at a black-tie dinner held at Cipriani on 42nd Street in New York — not all that far from Madison Square Garden. For a while, the gala went pretty much as expected. Longtime legal correspondent Jack Ford was the master of ceremonies. One by one, the honorees were introduced and took the stage, including the venerable Democratic statesman Warren Christopher. Their remarks were largely benign and full of gratitude to colleagues and family. Then it was Pennoyer’s turn — and the frail, white-haired man took his time getting up to the stage, looking every bit of his 81 years in doing so. He knew what he was going to do, even if no one else in the room did. In a soft, halting voice and a clipped, patrician cadence, Pennoyer began by saluting Supreme Court Justice John Paul Stevens for writing the majority opinion in Hamdan v. Rumsfeld, the case that struck down the president’s military tribunals to try suspected terrorists. Stevens, Pennoyer said, “courageously defied the encroaching tyranny by reaffirming the right to habeas corpus and other basics of due process that became the rule of law in England and America over the past thousand years.” And then he let it fly: Throughout our history the right to habeas corpus and the humane treatment of prisoners in time of war have been essential to our nation’s moral authority. The administration’s betrayal of these principles, exposed again last week when the president signed the

Military Commissions Act, confronts us with a momentous challenge. Will the leaders of our profession bring to account the government lawyers who, by giving cover to the assault on habeas corpus, are attempting to ensure that the administration’s denial of due process and use of torture and indefinite detention without charge can never be challenged before an independent tribunal? The answer depends on us. And that was it. He made his way off the stage. “They said I had a minute and a half [to speak],” Pennoyer says. “I think I took two minutes.” The crowd was jolted. More than a few people stood and clapped, especially those who were sitting near Pennoyer. But Pennoyer says he couldn’t see them. The lights on the stage were too bright and his biggest concern upon leaving the podium was that he would topple off the stage. Only when some members of the crowd “began reaching out to me with tears in their eyes” did he realize that he had made an impact. Pennoyer says he was a Republican until just a few years ago, switching sides because “the far right took over the party and ruined it.” He persuaded his firm, Patterson Belknap Webb & Tyler, to work on the military commission and enemy combatant cases on a pro bono basis, because he was worried about U.S. soldiers who fall into enemy hands. His critique, he says, was a call to the leaders of the profession to become more involved in public issues. Another honoree, human rights lawyer William Zabel, followed suit — and went even further, comparing the actions of the Bush administration to crimes of the Pinochet regime in Chile in the 1980s. But while Pennoyer’s remarks galvanized some, they angered others. One was David Leitch, who happened to be receiving an award that evening on behalf of the Ford Motor Co.’s legal department. Leitch is a modern-day poster child for how a Washington lawyer can move comfortably among the worlds of law, politics and business, having worked as a partner at Hogan & Hartson before becoming a deputy White House counsel in the first term of the Bush administration. Leitch then moved on to Ford as general counsel. That meant that, in some measure of irony, he found himself on stage as a representative of the very policies that were suddenly under attack. To Leitch’s credit, he didn’t shy away from declaring which side of the debate he was on. He applauded Chief Justice John Roberts Jr., with whom Leitch had worked at Hogan (and who had sided with the administration in Hamdan as an appeals court judge) and talked of “our great Attorney General Alberto Gonzales.” (Another first-term member of the administration, Larry Thompson, now general counsel at PepsiCo, was also in the room.) After the event, Leitch said, “I was surprised that a few individuals thought it was an appropriate occasion to launch the sort of nasty attacks they did, but that seems increasingly to be what passes for discourse among some administration critics.” And perhaps the most curious speech of the evening came from Dick Thornburgh, the former Republican governor of Pennsylvania and attorney general under Presidents Reagan and George H.W. Bush, who also was honored for lifetime achievement. Thornburgh’s short speech, delivered with a veteran politician’s flair, was a stirring cry for the country to obey the “rule of law” as he quoted Justice Learned Hand in saying, “We cannot ration justice.” Some in the crowd thought that perhaps Thornburgh, a partner at Kirkpatrick & Lockhart Nicholson Graham in D.C., was taking a sort of middle road between Pennoyer and administration loyalists such as Leitch. Or that he was offering an appeal to rise above the squabbling. Thornburgh said later, however, that he was just as incensed about the bomb-throwing as Leitch. “It wasn’t appropriate,” Thornburgh said of Pennoyer and Zabel’s remarks. “It was a sad event that something quite joyful turned political.” And, he noted, he and Warren Christopher, “two people who actually were part of the political process,” kept silent. Regardless, Pennoyer isn’t apologizing. A week after the dinner, he sounds as defiant as ever. “If lawyers don’t care about the Constitution,” he says, “who the hell will?”


James Oliphant is editor in chief of Legal Times . His column runs twice a month.

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