White House counsel steps down, will be replaced by Bob Bauer - washingtonpost.com

Tenure marked by struggles over closing Guantanamo

By Anne E. Kornblut and Ellen Nakashima
Washington Post Staff writer
Friday, November 13, 2009 11:30 AM

TOKYO -- White House Counsel Gregory B. Craig will step down from his post and be replaced by Bob Bauer, a prominent Democratic lawyer who is President Obama's personal attorney, the White House said Friday.

The departure is the highest-level White House shake-up since Obama took office in January. It comes after months of dissatisfaction over Craig's management of the closure of the U.S. military detention center at Guantanamo Bay, Cuba, and other matters, and less than a month after officials said Craig was no longer guiding the effort to close the prison.

White House officials nevertheless praised Craig for laying the groundwork for the closure and for guiding the nomination and confirmation of Justice Sonia Sotomayor, the first Latina on the U.S. Supreme Court.

"Greg Craig is a close friend and trusted advisor who tackled many tough challenges as White House Counsel," Obama said in a statement released by the White House. "Because of Greg's leadership, we have confirmed the first Latina justice on the Supreme Court, set the toughest ethics standards for any administration in history, and ensured that we are keeping the nation secure in a manner that is consistent with our laws and our values."

Bauer, currently a partner at Perkins Coie, will begin his new job by year's end, the White House said. Obama's statement said Bauer is "well-positioned to lead the Counsel's office as it addresses a wide variety of responsibilities, including managing the large amount of litigation the administration inherited, identifying judicial nominees for the federal courts, and assuring that White House officials continue to be held to the highest legal and ethical standards."

The announcement that Craig will leave coincides with a long-awaited Justice Department decision to transfer the prosecutions of five high-profile Guantanamo Bay detainees linked to the attacks of Sept. 11, 2001 -- including Khalid Sheik Mohammed -- to federal court in New York.

As a lawyer for House Democrats during their time in the minority, Bauer pursued an aggressive legal strategy aimed at undercutting the GOP's political advantages. In 2000, Bauer, in his capacity as the Democratic Congressional Campaign Committee's attorney, filed a racketeering lawsuit against Rep. Tom DeLay (R-Tex.), then the House majority whip, and three affiliated political groups, charging that DeLay had engaged in extortion and money laundering.

The two parties reached a settlement a year later in which both sides claimed victory, but Bauer argued that the Democrats had effectively neutralized one of the GOP's most effective fundraising methods.

"We shut it down," Bauer said at the time. "There is no DeLay shadow network. We didn't have to worry about it in 2000, and we don't have to worry about it in 2002."

DeLay called the lawsuit, which cost him more than $450,000 in legal fees, "nothing more than a desperate political ploy to win back the House."

Shortly after Bauer's appointment was announced, Republicans began to raise questions about the propriety of a president's personal lawyer serving as White House counsel. One described the move as a serious housecleaning of the White House counsel's office.

Craig had once hoped for a post in the Obama administration conducting foreign policy. But when that job did not materialize, and Obama asked Craig to serve as counsel, Craig felt he could not refuse, people close to him said.

Before the release of Craig's letter to Obama stating he would return to private practice, some White House officials had said they expected him to receive a judicial appointment or diplomatic posting.

Craig, a respected lawyer whose storied career includes representing President Bill Clinton during his Senate impeachment trial, became one of the earliest Clinton allies to support the Obama campaign during the 2008 race. At the height of the campaign, he penned a memo sharply criticizing then-Sen. Hillary Rodham Clinton's foreign policy credentials, a reflection of how passionately he cared about international relations.

White House press secretary Robert Gibbs denied that Craig's exit was related to Guantanamo and noted that Craig had never sought to serve as the administration lawyer.

"Greg is, as you know, somebody who served in a previous administration in foreign policy. That's his passion," Gibbs said. He called Craig a "reluctant acceptor" of the counsel position who had never expected to stay long.

Craig did not return a phone call placed to his house Thursday night. In a letter to Obama released by the White House, he said he was honored to have worked for the administration and would return to private practice Jan. 3.

As White House counsel, Craig tried to influence some initiatives he cared most about, including reversing the Bush-era detainee policies. He took the job of closing the Guantanamo prison so seriously that when Bermuda agreed to take several detainees, Craig personally flew with them to the island.

But just a few months in office left Craig disenchanted with the political process, and some senior White House officials frustrated with the operations of the counsel's office. Some critics pointed to mistakes along the way, including the administration's failure to anticipate congressional opposition to closing the detention facility.

White House officials have conceded they will not make the January closure deadline that Craig helped Obama settle on and are at a loss as to where to house a number of hard cases who cannot be transferred to foreign countries or tried in U.S. civilian or military courts.

And there were other problems in his path. The vetting of nominees, a job typically overseen by the counsel's office, did not go well at first. Craig never quite penetrated the president's inner circle of advisers, despite his close personal relationship with Obama. And his high-profile role in the Guantanamo struggle made him an easy target, according to defenders of his who said he should not have been held responsible for the politics of such a thorny issue.

His allies praised him for trying to keep Obama in sync with some of the ideologically liberal ideas he promoted in the campaign.

Corporate Raiding Underlines Dismal State of Russia's Legal System

By Philip P. Pan
Washington Post Foreign Service
Thursday, August 13, 2009

MOSCOW -- When three of Russia's finest lawyers agreed to represent the investment fund Hermitage Capital, they thought they were taking on a routine tax case.

Then they uncovered evidence of a breathtaking crime: Top police and tax authority officials appeared to have quietly seized ownership of Hermitage firms and used them to arrange a $230 million tax refund.

Now, the lawyers themselves are in legal trouble. One has been jailed. The two others have fled the country. All three face charges that seem intended to discredit Hermitage and divert attention from the enormous theft.

Their plight highlights the hazards of practicing law in Russia's corruption-ridden courts despite nearly two decades of reforms supported by hundreds of millions in U.S. and European aid. Prosecutors and police continue to dominate the judiciary as they did in the Soviet era, but unrestrained by the institutions of the old Communist system or the checks of a genuine democracy, the opportunities for abuse have grown.

No crime illustrates the state of the legal system better than what is known as "reiderstvo," or raiding -- the takeover of businesses through court rulings and other ostensibly legal means with the help of crooked judges or police. The practice is so widespread that local media have reported what raiders charge: $10,000 to alter a corporate registry, $50,000 to open a criminal case, $300,000 for a court order.

Hermitage, once Russia's largest foreign shareholder with more than $4 billion in holdings, says it encountered a bold variation on reiderstvo: When raiders failed to seize its assets, they looted the Russian treasury instead, then went after the lawyers who caught them.

President Dmitry Medvedev, a lawyer himself, has called "legal nihilism" the main obstacle to growth in Russia and has condemned raiding as "shameful." But neither he nor his government has responded to Hermitage's pleas for help or the protests of the Moscow bar association and international legal groups.

In a statement last month, the Interior Ministry touted its success in solving the tax theft. But the money has not been recovered, nor have any officials been arrested. Prosecutors have charged only a convicted killer named on documents as Hermitage's new owner.

Courts in Cohorts

For years, Hermitage targeted corruption in the state enterprises in which it invested. In 2005, it upset someone in power, and its British chief, William Browder, was barred from entering Russia. As a precaution, the fund sold its Russian assets and moved most employees overseas.

Then, in June 2007, police raided its Moscow offices and those of its Moscow-based law firm, Firestone Duncan. Brandishing warrants for material about a Hermitage affiliate suspected of tax evasion, they confiscated much more. When one lawyer objected, police beat him so badly that he was hospitalized for two weeks, said Jamison Firestone, the American head of the law firm.

Three days later, Hermitage hired the prominent Moscow defense lawyer Eduard Khayretdinov.

A taciturn former cop and judge, Khayretdinov, 50, was among a pioneering generation who joined the bar in the early 1990s as lawyers first began to operate independently of the state. It was a hopeful move, he recalled, made as then-President Boris Yeltsin's reformers were trying to build an impartial judiciary.

Nearly two decades later, Russian lawyers are the embodiment of that incomplete task. Some are corrupt middlemen, pulling strings and delivering bribes. Others risk arrest and violence in pursuit of justice. Most try to avoid trouble, though figuring out how is more difficult than ever. If the party once controlled the courts, now the highest bidder often does.

Khayretdinov tried to make a difference. In a nation with a conviction rate near 99 percent -- higher, some say, than under Joseph Stalin -- he managed to win the release of five clients in 15 years. "I understood that our system was getting worse, but every time I prepared to speak in court, I honestly believed the court would hear me," he said.

In October 2007, he discovered that lawsuits had been filed in St. Petersburg against three Hermitage firms that once held shares of Gazprom, the state energy giant. Without telling his client, judges had issued more than $400 million in rulings against the firms.

Photographing each page of the court files, Khayretdinov realized that lawyers representing the firms had essentially pleaded guilty in every case. But Hermitage had never hired them.

In Moscow, Hermitage checked the government's corporate registration database and was astonished to discover that it no longer owned the subsidiaries. A business in Kazan, 400 miles from Moscow, was listed as the proprietor.

Complex Maneuvering

Raiding, a mix of extortion, identity theft and simple thuggery, has emerged as major problem for the Russian economy, where property rights remain clouded by the chaotic privatizations of the 1990s. A U.S. Justice Department official in Moscow has described it as "a new and sophisticated form of organized crime" that "poses a serious threat to foreign investors" and has even spilled into American courts.

In one high-profile case, the Norwegian telecom giant Telenor is battling an attempt to seize its stake in a Russian mobile operator after a Siberian court issued a $2.8 billion ruling against it. But smaller domestic firms are usually the victims. One veteran police official has estimated that as many as 10,000 takeovers occur annually but that fewer than 100 are prosecuted and result in convictions.

Raiding is difficult to investigate because it relies on police and judicial corruption and often involves complex legal maneuvering. Hermitage turned to Sergei Magnitsky, 37, a specialist in tax law at Firestone Duncan who was also a licensed auditor. "The best I ever saw," Firestone said.

To take ownership of the firms, Magnitsky concluded, the thieves would have needed original corporate seals and founding documents -- items that police had seized in the raids.

The lawyers suspected the involvement of Lt. Col. Artem Kveuznetsov, an Interior Ministry official who supervised the raids and had been poking around Hermitage bank accounts. He had no clear link to the lawsuits, but raiders often use criminal cases to smear their victims and obtain key documents.

On Nov. 29, 2007, Hermitage confronted Maj. Pavel Karpov, the officer supervising the tax probe, with its findings. The company says he blanched and motioned one of its attorneys to his desk. Apparently worried that his office was bugged, he typed a message: Kuznetsov had pressured him to open the inquiry.

Kuznetsov and Karpov referred a reporter's queries to the Interior Ministry, which did not respond to faxed questions.

Only one law enforcement agency opened a probe into Hermitage's allegations. But when Magnitsky showed up 10 minutes early for a meeting with its investigator last summer, Kuznetsov was in the office.

Looting the Treasury

Why would anyone go to the trouble of obtaining multimillion-dollar judgments against companies that no longer hold any assets?

The mystery stumped Vladimir Pastukhov, 46, a longtime Hermitage adviser and a law professor at the Higher School of Economics. "No one knew what the crime was, but it was clear that if we didn't immediately argue our case, Hermitage would be blamed for something," he recalled.

He and the others filed a series of court motions. Prosecutors responded by indicting Hermitage executives in absentia and disclosing that the powerful Federal Security Service, the domestic successor to the KGB, had initiated the tax inquiry.

It was Browder, the company's British chief, who first suggested that the raiders might be using the court rulings to erase profits on paper and apply for a huge tax refund. The lawyers were skeptical. Magnitsky noted that it often took years to get a refund in Russia.

But then they discovered that the firms had opened accounts at two banks that reported a spike in deposits afterward. With more digging, they confirmed that $230 million was deposited days after the companies applied for a tax refund. The money quickly disappeared overseas.

When Hermitage reported the fraud in July 2008, police went after the lawyers, summoning them to Kazan.

After speaking to police, Pastukhov concluded that he would be arrested if he went. "I used to believe that if you were persistent and targeted, you could get results, even in the Russian courts," he said after fleeing to London. "But I've changed my mind. I'll never step into another courtroom again as a Russian lawyer."

Khayretdinov was sure he could prove his innocence and hid in Russia for months. But then police accused him of improperly representing the stolen firms because Hermitage no longer owned them. He decided he had no hope in court and flew to London.

Magnitsky never considered leaving because he didn't believe he could be jailed for nothing, colleagues said. But in November, police charged him with helping a Hermitage firm evade taxes in 2001. His attorney said he didn't even begin working with the firm until 2002.

"They've told him that if he says bad things about Hermitage, they'll let him go," Firestone said. "But Sergei told them no. . . . He believes the only way that Russia gets better, the only way the law starts to work here, is if good people stand up for it."

Activist’s Detention Shakes China’s Rights Movement

By ANDREW JACOBS

BEIJING — China’s nascent legal rights movement, already reeling from a crackdown on crusading lawyers, the kidnapping of defense witnesses and the shuttering of a prominent legal clinic, has been shaken by the detention of a widely respected rights defender who has been incommunicado since the police led him away from his apartment 12 days ago.

Xu Zhiyong, 36, a soft-spoken and politically shrewd legal scholar who has made a name representing migrant workers, death row inmates and the parents of babies poisoned by tainted milk, is accused of tax evasion. The accusation is almost universally seen here as a cover for his true offense: angering the Communist Party leadership through his advocacy of the rule of law.

If convicted, he could face up to seven years in prison.

“We’re all shocked by his detention, because Xu Zhiyong has always tried to avoid taking on radical and politically sensitive cases,” said Teng Biao, a colleague. “His only interest is fighting for the rights of the vulnerable and trying to enhance China’s legal system.”

Mr. Teng helped Mr. Xu establish the Open Constitution Initiative, a six-year-old nonprofit legal center that the authorities closed last month, charging that it was improperly registered and that it failed to pay taxes.

Mr. Xu is not the first rights advocate in China to face the wrath of the authorities in recent years. Gao Zhisheng, a vocal lawyer, vanished into police custody six months ago, and Chen Guangcheng, a blind lawyer, was beaten and then jailed after exposing abuses in China’s birth-control program.

Although rights lawyers and grass-roots social organizations have always been tightly controlled here, the pressure has intensified in recent weeks. More than 20 lawyers known for taking on politically tinged cases were effectively disbarred, and the police raided a group that works to ease discrimination against people with Hepatitis B.

Last week, China’s justice minister gave a speech saying lawyers should above all obey the Communist Party and help foster a harmonious society. To improve discipline, the minister said, all law firms in China would be sent party liaisons to “guide their work.”

But given Mr. Xu’s international stature and reputation for working within the law, legal scholars both in China and abroad say his prosecution suggests a new level of repression.

“What makes his detention particularly disturbing is that he’s a special figure in so many ways,” said Paul Gewirtz, director of the China Law Center at Yale Law School, which helped Mr. Xu establish his legal center, known here by its Chinese name, Gongmeng. “He’s at the forefront of advancing the rule of law, which is something everyone agrees China needs for its ongoing development.”

After 30 years of reform, China’s legal system is at a critical juncture. Law schools continue to pump out thousands of graduates each year, and the courts, even if imperfect, have increasingly become a forum for resolving disputes. Late last month the Supreme People’s Court announced reforms intended to markedly reduce executions.

But as lawyers here discover, there are limits to China’s embrace of judicial reform.

The Constitution, which includes guarantees of free speech and human rights, is unenforceable in court. Judges routinely ignore evidence, making determinations based on political considerations. And when it comes to vaguely defined offenses like “subversion of state power” or the invoking of “state secrets” laws, even the best-trained lawyers are powerless to defend the accused.

He Weifang, a law professor and legal adviser to Gongmeng, said conservative forces in the Communist Party were increasingly wary of lawyers, who they suspect are ultimately seeking to challenge one-party rule. Their greatest fear, Mr. He said, is that advocacy lawyers and civil society organizations could one day lead a pro-democracy movement among the poor and disenfranchised citizens they represent.

“What the authorities don’t appreciate, though, is that lawyers are leading these people to the courts, where their complaints can be resolved by rule of law,” he said. “People like Xu Zhiyong can only help the government solve some of the problems it faces.”

According to Gongmeng, Mr. Xu is being held at the Beijing No. 1 Detention Center, although public security officials have not confirmed that he is in their custody. Peng Jian, a lawyer who is advising Gongmeng, said the authorities had imposed a $208,000 penalty for nonpayment of taxes due on funds received from Yale for cooperative research projects.

A day after the raid on Gongmeng’s office, Mr. Xu held a news conference to say that the accusations were baseless. He described the attack on his research center as a battle between corrupt officials and society’s most vulnerable citizens. “We believe conscience will surely triumph over the evil forces,” he said.

A week later, police officers came to his door and led him away. Another employee of the research center, Zhuang Lu, was also taken away the same day.

Soon after graduating from Peking University law school, Mr. Xu became immersed in the case of a graphic artist who was beaten to death in 2003 in police custody in the southern city of Guangzhou. The artist, Sun Zhigang, 27, had been arrested under vagrancy laws that allowed the police to detain people for traveling outside their registered hometowns without a permit.

Mr. Xu led a campaign to end the practice, which gained widespread media attention. A few months later, the State Council abolished the system.

That same year Mr. Xu rose to the defense of a muckraking editor jailed in Guangzhou after his newspaper, Southern Metropolis, ran a series of articles about Mr. Sun’s death. The editor, Cheng Yizhong, said Mr. Xu helped rally lawyers and journalists, leading to his release five months later. “Only Xu had the courage to take on my case,” he said.

More recently, he was preparing a challenge to black jails, the illegal holding cells that some officials use to silence persistent critics. Last year, friends say, he was roughed up several times while gathering evidence from petitioners who had come to Beijing to press their grievances to the central government.

Although he was less outspoken than some other rights activists, Mr. Xu did not shy away from cases that were bound to upset China’s power elite. Last May Gongmeng published a study challenging the official verdict that blames the Dalai Lama for the 2008 riots in Tibet. The report, disseminated online and sent to government leaders, said legitimate grievances born from failed government policies were largely responsible for the unrest.

Raised in a Christian home in Henan Province, Mr. Xu was fond of noting his birth in a county called Minquan, which translates as “civil rights.” In an interview last year with The Economic Observer, a Chinese weekly, he said this had a profound impact on his social consciousness.

“I strive to be a worthy Chinese citizen, a member of the group of people who promote the progress of the nation,” he said. “I want to make people believe in ideals and justice, and help them see the hope of change.”

Jonathan Ansfield contributed reporting, and Huang Yuanxi contributed research.

Struggling for the Rule of Law: The Pakistani Lawyers’ Movement

Daud Munir

(Daud Munir is a doctoral candidate in politics at Princeton University.)

Lawyers protest against the establishment of anti-terrorist courts headed by civil-military judges, February 2, 2002, Lahore. (K. M. Chaudary/AP Photo)

In March 2007, when President (and General) Pervez Musharraf suspended Supreme Court Chief Justice Iftikhar Chaudhry, Pakistani lawyers took to the streets in large numbers. It was a dangerous street where they were met with batons, barbed wire, tear gas, bullets and bombs. If their immediate demand was Chaudhry’s return to the bench, the incipient goal of their movement was restoration and respect for the rule of law. Over the last two years, protesting lawyers fundamentally transformed the political landscape in Pakistan.

Lawyers—at least in their capacity as lawyers—rarely enter the fray of contentious politics by employing disruptive techniques to press for changes in government policy. While lawyers are agents and advocates of political liberalism and the rule of law in most countries, their favored arena of contestation usually has been courts, and their preferred tactics of resistance have been writs and petitions. If we define a “lawyers’ movement” as a coherent nationwide struggle by legal professionals, sustained over time and fought primarily in the streets, Pakistan would emerge as the only case.

The lawyers’ bold challenge to Musharraf presented a unique historical opportunity for meaningful political reform in Pakistan. It certainly presented a counter-image of the idea that Pakistan is a “failed state,” as some US policymakers have claimed, and a contrast to the parallel undemocratic impulse in Pakistan’s politics, led by militant movements of tribal Pashtuns seeking to install a radical version of Islam in the country’s northwest regions. The broader effects of the lawyers’ struggle depend on whether this indigenous democratic impulse can flourish and endure in the post-Musharraf era. The problem is that while western policymakers are ready to extend billions of dollars in military aid to subdue the extremist impulse, they seem unwilling to engage with—or even to adequately acknowledge—the secular, reformist impulse in Pakistani society that is represented by the lawyers’ movement.

A Tale of Two Judges

Following Pakistan’s creation as an independent state in 1947, the project of establishing constitutional governance had an unpromising beginning. In 1954, the Constituent Assembly finally agreed on the governing legal framework. Later that year, as legal experts were busy drafting the text of the constitution, Governor-General Ghulam Muhammad dissolved the Assembly, silencing what he referred to as its “parliamentary bickering.” Proclaiming in an emergency proclamation that the Assembly had “lost the confidence of the people,” what really troubled Muhammad was the imminent curtailment of his powers through new legislation.

The executive enlisted the support of the military in its bid to preserve its power. In a breach of rules barring members of the military from holding political office, General Ayub Khan, the army chief, was appointed as a minister in the newly formed cabinet. This extra-constitutional action formally paved the way for the military’s entry into Pakistan’s politics.

How did the judiciary respond? The Chief Court of Sindh accepted a petition submitted by the president of the Assembly and invalidated the actions of the governor-general. On appeal, however, the Federal Court upheld the legality of the Assembly’s dissolution. A constitutional crisis ensued, which the court resolved by relying on the “doctrine of necessity.” According to this controversial principle, extra-constitutional actions can be legally justified under special circumstances. The man behind this legal maneuver was Chief Justice Muhammad Munir, a brilliant legal mind. His majority opinion which, in essence, validated Pakistan’s first extra-constitutional coup, was a skillful attempt at bending the law in support of the executive. Munir’s ruling endorsing the usurpation of power would prove costly for Pakistan.

In 1958, when General Khan suspended the constitution and imposed the first martial law, Justice Munir authored the leading judgment validating this military coup d’état. This time the legal maneuver involved mislabeling the coup a “revolution” by invoking the speculative theory of “revolutionary legality” developed by the Austrian jurist Hans Kelsen. The court argued that since the “revolution” satisfied “the test of efficacy,” it could thereby be deemed legitimate. In other words, the success of the military coup d’état automatically furnished the justification for its legality.

The jurisprudence of the Munir court set the tone for constitutional reasoning in Pakistan. The doctrine of necessity, in particular, was used repeatedly to legitimate extralegal usurpations of power. Both Generals Zia ul-Haq’s and Pervez Musharraf’s military takeovers, in 1977 and 1999, respectively, were validated using this doctrine. One of the members of the bench who reviewed and endorsed the legality of Musharraf’s military coup d’état in May 2000 was Justice Iftikhar Chaudhry.

When Chaudhry became chief justice in 2005, however, his judicial philosophy underwent a fundamental metamorphosis. Rather than acting as an agent of the power elite, Chaudhry sought to become a guarantor of the fundamental rights of Pakistani citizens. Soon after being sworn in, he established a “human rights cell” in the Supreme Court. Through this forum, Chaudhry started accepting petitions from the public against infringements of constitutionally guaranteed rights. The cases taken up by the court incrementally tightened the noose of legality around the Musharraf regime.

In the first few cases, the court held local town officials accountable for failing to oversee and enforce safety regulations in construction projects. Decisions in another set of cases annulled the leases of two public parks that were handed over to private parties for the development of a mini-golf course and a parking complex. Next in line were cases against corrupt federal ministers involved in illegally controlling the prices of commodities. By successively implicating more powerful state officials, it seemed that Chaudhry was testing the regime’s willingness to tolerate his judicial activism.

There was a paradigmatic shift in the core function of Pakistan’s Supreme Court when decisions started going against senior members of the executive. One of these decisions directly challenged the administrative practices of Prime Minister Shaukat Aziz, who privatized Pakistan Steel Mills, one of the country’s largest public sector enterprises, generating considerable controversy. It was alleged that Aziz, who was also the chair of the Cabinet Committee on Privatization, had agreed to the sale of the corporation at an unduly low price to a consortium he favored. In a landmark judgment, the Chaudhry Court annulled the sale agreement on the grounds that the deal had been done in “indecent haste.”

Soon afterwards, the court shocked the military regime by taking up cases addressing “missing persons.” Under the pretext of the “war on terror,” Musharraf’s security apparatus had forcibly disappeared a large number of political opponents. In an astoundingly bold move, Chief Justice Chaudhry accepted a case involving 41 missing persons. The court upheld the right to due process for extrajudicially detained individuals and ordered the state agencies to produce them in court. This was an extraordinary contra-authoritarian step in the judicial history of Pakistan. Chaudhry’s activism generated immense respect among lawyers and the human rights community, and was widely reported in the burgeoning independent Pakistani media. Emboldened by the positive feedback, Chaudhry accepted another case involving over a hundred forced disappearances on March 8, 2007. The next day would prove fateful for both Chaudhry and the military regime in Pakistan.

Chaudhry’s Suspension

Lawyers of Lahore protest military rule, February 27, 2001, in Lahore. (K. M. Choudary/AP Photo)

Musharraf invited Chaudhry to his official residence. Dressed in military uniform and accompanied by the prime minster and intelligence chiefs, he sought to pressure the chief justice to resign. Chaudhry refused. An infuriated Musharraf forcibly detained Chaudhry for several hours and then suspended him through a presidential order with immediate effect. An acting chief justice was sworn in.

After Chaudhry’s suspension, bar associations in several parts of the country began protesting Musharraf’s action. Three days after the suspension, as the deposed chief justice left his residence to face the Supreme Court bench hearing his case, a police car was waiting to transport him. Chaudhry, however, believed that he was still the rightful chief justice of Pakistan—and certainly not a criminal—and so decided to walk to court rather than ride in the police car. At this point, the security forces pulled him by the hair and forced him into the car. Their actions were captured on film and widely circulated on news channels and reported in the print media.

The insult to one of the highest symbols of the legal profession galvanized even habitually apathetic lawyers. Wearing their black coats, lawyers took to the streets in protests across the country demanding Chaudhry’s reinstatement. Thus began the lawyers’ movement, which continued with a boycott of courts and ongoing demonstrations against the regime. Chaudhry traveled around the country, addressing bar associations in order to help keep the movement animated. The media played a critical role by giving live coverage to the events and by debating the legality of Musharraf’s action.

In July 2007, in the context of public opinion strongly mobilized in favor of the deposed chief justice, the Supreme Court passed a landmark judgment annulling the presidential order and restoring Chaudhry. This was the first judicial ruling in the country’s history directly challenging the action of a military dictator.

The Struggle Continued

The chief justice—restored to his post as a result of countrywide popular mobilization—felt emboldened to take up the case of Musharraf’s eligibility to run for reelection as president while in military uniform. Sensing an imminent court decision against the constitutionality of his bid for reelection, Musharraf imposed emergency rule in November 2007. He suspended sixty judges of the higher courts in Pakistan, including Chief Justice Chaudhry.

Over the next few months, Musharraf’s security apparatus launched an offensive against Pakistan’s civil society, with special vehemence directed at the rebellious legal community. Although many individuals were brutally attacked, the lawyers’ movement continued to press the government for the restoration of the judiciary. The boycott of courts and the climate of instability most likely contributed to a rift within the military over how best to respond and control the mobilization. It certainly was a factor in Musharraf’s decision to extend his hand to Benazir Bhutto, leader of the Pakistan Peoples Party (PPP), to stave the erosion of his own legitimacy. Under an agreement with Musharraf that granted her blanket immunity for pending corruption charges, Bhutto returned to Pakistan in October 2007. In the buildup to a January 2008 parliamentary election, Bhutto, the leading opposition candidate, was assassinated at a rally in Rawalpindi on December 27, 2007.

After being sworn in as president for another five years, Musharraf maintained his refusal to restore the deposed judges. In July 2008, the lawyers’ movement organized the first “long march.” Around 50,000 protesters from around the country converged on the capital. Given the erosion of his power during the last year and mounting opposition to his policies, Musharraf resigned in August.

A few weeks later, Asif Zardari, Bhutto’s widower and co-chair of the PPP, was elected president. One of his campaign promises was to restore the deposed judges. However, several months into his presidency Zardari not only refused to reinstate the judges, but appointed PPP loyalists as judges in higher courts, presumably motivated in part by a desire to curtail corruption cases against him.

The lawyers’ movement had not abated with the end of Musharraf’s rule, and new pressure was directed at Zardari to reinstate the judiciary. The lawyers organized a second long march in March 2009, in which opposition parties officially joined. This time, before the hundreds of thousands of protestors reached the capital, the prime minister announced the restoration of the deposed judges. Chief Justice Chaudhry once again resumed office on March 22, 2009.

Undermining Authoritarianism

Even though “Go Musharraf Go!” had been one of the main slogans of the lawyers, it would be erroneous to think that the movement’s goal was regime change. In retrospect, the single-issue clarity of the movement’s campaign to reinstate the deposed judges arguably made their activism so successful. But the lawyers’ struggle did prove to be a critical factor in undermining Musharraf’s military regime and forcing his resignation. Unlike most other transitions to democracy in which the principal agents of change have been a country’s political elites, in Pakistan it was mobilization by the legal community that paved the way.

To understand how middle class professionals could upend a military regime as powerful as Musharraf’s, it is important to specify the nature of the Pakistan lawyers’ movement. For one thing, it was not confined to any particular geographical region; lawyers from across the country were actively involved, with Lahore and Karachi registering the highest turnouts at protests. The movement was not dominated by any single ethnic or sectarian group, thus giving it a truly national complexion. And it was not a façade for political party activism, although parties occasionally participated—especially at key events. This movement was initiated, organized and sustained by Pakistani legal professionals who waged their struggle mainly in the streets.

Lawyers put their safety and freedom at risk, given Pakistan’s history of political violence and regime repression. Thousands were arrested, illegally detained, beaten up and tear-gassed. There were at least two violent events during which more than 50 died. The Musharraf regime had used the draconian Anti-Terrorism Act to detain several lawyers, and amended the Army Act of 1952 to allow civilians to be tried in military courts for vague offenses such as “giving statements conducive to public mischief.”

The erosion of regime legitimacy is rarely sufficient to oust a dictator. What is needed—and what the Pakistani lawyers’ movement provided—was the infliction of tangible costs. By acting as a judicial support network, lawyers propelled the regime into constitutional crises. In many countries, authoritarian regime destabilization is the result of an economic crisis. In Pakistan, the crisis of governability arose first in the legal realm. The mobilization of public opinion in support of the deposed judges, arguably, was critical in the decision of the Supreme Court to annul the presidential order. After the judiciary was restored, the lawyers pressed them to take up the case of Musharraf’s eligibility to run for reelection, propelling the regime into a second crisis.

Lawyers’ boycotts of normal court proceedings threatened the workings of the entire judicial system. The public did not blame the lawyers, but rather the regime, for the consequences of the boycott. And since the lawyers mobilized in the streets rather than merely staying home, they baited the regime, which responded with violent repression. This exacted immense reputational costs both at home and internationally, given the extensive live coverage of protest events by the media. The regime’s destruction of media company offices and passage of censorship laws backfired, further inflaming anti-regime sentiment. The regime also used tactics such as arranging counter-demonstrations by fake lawyers and organizing a national rally in support of Musharraf. Such obvious desperation both exacerbated and illustrated the regime’s loss of power.

Finally, the event that most forcefully proved the cost inflicted by the lawyers’ movement was the regime’s imposition of emergency rule. This was a clear instance of the diversion of the regime’s energies to fighting civil society rather than focusing on important policy issues or confronting the growing threat of Islamist militancy in Pakistan.

A New Vocabulary of Politics

Beyond achieving the restoration of the judges to the bench and eroding the jurisprudential foundations of authoritarianism, the lawyers’ movement has had a deeper structural impact on democratic politics in Pakistan. Historically, party politics has relied on three kinds of allegiances to mobilize people: ethnic, religious and clientelistic. Even a relatively populist leader like Zulfiqar Bhutto, who claimed to champion the dispossessed, offered (clientelistic) “bread, cloth and shelter.” Until the lawyers’ movement, no one had offered “rule of law” to the people.

The political dynamic between Pakistan’s political parties and the lawyers’ movement presents a fascinating example of the potential of civil society in newly democratizing countries. Rather than engaging in partisan politics, the lawyers chose to engage in direct mobilization through the bar. This professional autonomy prevented the movement from being subsumed or manipulated by party politics. Conversely, the political parties tried hard to forge an association with the lawyers’ movement, given its success at mobilization and broad-based legitimacy.

The lawyers’ movement became the principal conduit for democratic change in the political arena. Parties that sought to gain leverage by aligning with the movement had to pay the price of structuring their platforms according to lawyers’ demands for rule of law. The case of the PPP is illustrative. It initially appropriated the movement to gain access to the political space in Pakistan by promising to restore the judges. But after Zardari failed to honor this PPP campaign promise, the strong public opinion mobilized by the lawyers’ movement began adversely affecting his party. Realizing this, Nawaz Sharif’s Pakistan Muslim League threw its force behind the movement, gaining considerable legitimacy as a result.

The lawyers’ movement had an impact not only on traditionally clientelistic parties, but also on Islamist parties that historically have mobilized supporters for the implementation of shari‘a law in Pakistan. The Jamaat-e-Islami was one of the parties most actively engaged with the lawyers’ movement, despite the latter’s aim of strengthening the secular legal system in the country. (For Jamaat, siding with the lawyers was a means of expressing opposition to Musharraf.) As political parties appropriated the movement, they were forced to employ a variant of universalistic liberal legal rhetoric that cut across ethnic, religious or clientelistic claims.

Building the Rule of Law

In Pakistan, interludes of democratic rule have brought only nominal improvements in the lives of citizens. As in other emerging democracies, hopes that courts would protect citizens’ fundamental rights are often derailed when the judiciary proves unable or unwilling to check the power of the regime or elites. Recent events in Pakistan, however, provide an interesting case of courts’ efforts to protect rights and build the rule of law at the expense of power elites.

Support for domestic legal reform from multilateral and foreign institutions such as the World Bank, Asian Development Bank and USAID typically envisions a formalistic legal environment and espouses a model divorced from—or at least not tailored to—the social and political forces in the target country. The international record of trying to transplant a one-size-fits-all model of legal reform is unimpressive, not least because it ignores the fact that law is inherently and fundamentally political. The most successful examples of rule of law-building are found in countries where local actors and institutions direct the reforms in ways that accommodate local norms of legal legitimacy.

The two-year struggle of the legal community for upholding the rule of law in Pakistan can be thought of as a political project aimed at legal reform. In contrast to legal reform programs of multilateral institutions, this project was not implemented in a top-down manner. Rather, it was an indigenous project, deeply embedded in the country’s social and political context. Rather than focusing on strengthening the judicial machinery, the lawyers’ movement engaged in rule of law-supporting activism through street protests and court boycotts. In the end, it accomplished something that formalistic legal development by multilateral institutions arguably cannot: the widespread legitimacy of judicial institutions among the citizens of Pakistan.

Given this strong impulse for reform in Pakistan, it seems odd that the country has often been labeled as the “most dangerous place in the world” in the western press. This characterization builds on an exclusive focus on radical movements in Pakistan’s northwest. Given its scope and breadth, however, the lawyers’ movement is arguably more representative of the political aspirations of Pakistanis than is Talibanization. An exclusive focus on the latter, however, by the international community may tilt the balance in the opposite direction.

Human Rights Lawyers 'Disbarred' by Paperwork

By Ariana Eunjung Cha
Washington Post Foreign Service
Friday, June 26, 2009

BEIJING -- In the five years since it was founded, the Yitong Law Firm has established itself as one of the country's fiercest human rights advocates. It represented Hu Jia, the dissident who spoke out against the Tiananmen Square crackdown and on behalf of HIV/AIDS patients; Chen Guangcheng, the blind activist who exposed forced abortions; and hundreds of others its lawyers felt had been wrongly imprisoned.

Its success rate isn't stellar -- it has won at most 60 percent of its cases. But in a country where rule of law is still a work in progress and calling for democracy is often treated as a crime against the state, Yitong and other human rights firms have spoken out for people who otherwise would have been silenced.

Those days may be over.

Since the beginning of 2009 -- a sensitive year filled with anniversaries of uprisings -- the Chinese government has been forcing human rights law firms such as Yitong to shut down.

Formally, there is no crackdown; no police are swooping in to seize files or send attorneys en masse to labor camps. Instead, Beijing is simply using its administrative procedures for licensing lawyers and law firms, declining to renew the annual registrations, which expired May 31, of those it deems troublemakers. Human rights groups say dozens of China's best defense attorneys have effectively been disbarred.

"It's a collective strike," said Cheung Yiuleung, a leader of the China Human Rights Lawyers Concern Group, an advocacy organization based in Hong Kong. "Compared with individual warnings, the annual check of licenses is more effective. . . . It has had a frightening effect on all lawyers on the mainland."

A few prominent lawyers have met with even harsher treatment. One has gone missing: Gao Zhisheng -- who defended religious minorities such as members of Falun Gong and underground Christians, was a nominee for last year's Nobel Peace Prize and whose family fled China and sought asylum in the United States in March -- was taken by security agents from his home in Shaanxi province Feb. 4 and has not been heard from since.

Several lawyers say they have been beaten en route to meetings with clients in human rights cases. Others have been detained, questioned, put under house arrest for days or weeks and told they must be accompanied by police escorts whenever they leave their homes.

In late May, 17 human rights attorneys whose licenses have been suspended signed an open letter saying authorities are engaging in the "full-scale repression of rights" of defense lawyers "to an unprecedented degree."

With high unemployment from factory closings due to the global economic crisis, China's leaders have expressed concern that the sporadic outbreaks of social unrest in recent months might spread, and they have sought to keep those who might stir up dissent, such as human rights lawyers, under tight rein.

Their concerns are compounded by this year's significant dates: the 50th anniversary of the Tibetan uprising that led to the Dalai Lama's flight to India, the 20th anniversary of the Tiananmen Square massacre, and the first anniversary of protests over the shoddy construction that caused many deaths in last year's Sichuan province earthquake.

Attorneys whose licenses have not been renewed as of this month include Li Xiongbing, who represented victims of contaminated infant formula against the manufacturer Sanlu; Li Chunfu, who has been working on two cases involving wrongful death while in custody; and Wang Yaiun, who fought for the rights of migrant workers who left the countryside to work in urban factories.

Jiang Tianyong, an attorney with the firm Beijing Globe-Law who represents the parent of a child who died during the Sichuan earthquake and Tibetan monks arrested during last year's riots, said he had been warned last year not to take those cases. Representatives of the government's legal affairs bureau came "to talk to me and try to persuade me not to do it. I said, 'Since the law doesn't forbid me, why can't I do that?' "

Because "I don't listen to them and am not controlled," Jiang said, he was not entirely surprised when he learned this month that the renewal of his annual license, typically a formality, had been denied. He said he has been talking to other lawyers in his situation about starting a new, nongovernmental organization or advocacy group so they can continue to help those in need.

Not everyone is as unwavering under government pressure.

Wei Liangyue, head of the Jiaodian Law Firm in the northeastern city of Harbin, said this year was the first time in 21 years his license has not been renewed. In addition, he said, he was detained by police from March 1 to 30, and although he was not given any explanation in writing, he was told he was being punished for taking on Falun Gong clients.

"When I accepted these cases, I already expected the risks. I made my decision for intuitive knowledge and fairness. My decision is right," Wei said. However, he continued, "in the future, I might not touch sensitive cases like this."

Tang Jitian of the Beijing Anhui Law Firm said that the license issue has caused a rift in his office, where some of the lawyers handle human rights cases and others work on less sensitive issues.

"Some lawyers understand us and support us. But some lawyers told the head of the law firm that either we leave or they leave," said Tang, whose license was not renewed and who was detained by police from June 3 to 7 in the basement of a Beijing hotel.

In Yitong's case, managing partner Li Jinsong said authorities ordered the law firm to close for six months starting in mid-March because it employed a lawyer who was not properly licensed. Li called the charge absurd, saying the lawyer held a valid license to practice in another Chinese city and had filed an application to transfer it to Beijing, where the firm is based. Moreover, the penalty -- shutting down the entire firm -- is "100 percent illegal," Li said.

Yitong has appealed the ruling, but it has already had a devastating effect. The firm once attracted some of China's top legal talent -- idealistic men and women in their 30s and 40s, many of whom followed other legal career paths but switched to human rights advocacy because they wanted to make a difference in Chinese society. But now, of the more than 20 attorneys who once worked at its offices, only five are left. The others, concerned about their ability to support their families, took jobs at less controversial firms.

"As a law firm, we must make money. But since we have closed for more than three months, I don't even know if Yitong will still exist," Li said. "I am not sure if we will still have enough money to pay the rent."

Still, Li said he remains determined to take on human rights cases and is hopeful that in the future, lawyers will be able to operate more freely.

"There has to be someone who continues walking on this road. The more people walk, the wider the road will become," he said. "I will fight until I'm beaten to death."

Researchers Zhang Jie and Liu Liu contributed to this report.