Washington Lawyer

Legends in the Law: William D. Rogers

(Appeared in Bar Report, October/November 1999)

William D. Rogers is a senior partner at Arnold & Porter’s international practice. He joined the firm in 1953 after his graduation from Yale Law School and terms as a law clerk to Judge Charles E. Clark of the United States Court of Appeals, second circuit, and to Supreme Court Justice Stanley Reed. He has served as special counsel to the U.S. Department of State, and was the first president of the Center for Inter-American Relations of New York. Currently, his practice concentrates on international commercial arbitration. He is also vice chairman of the New York-based international consulting firm Kissinger Associates Inc.

Bar Report: Where did you grow up?
William D. Rogers: I was born in Wilmington, Delaware in 1927. My father was a chemist for the Crown Cork and Seal Company, and he wanted me to be a chemist too. But after I practically flunked freshman chemistry at Princeton, he relieved me of that obligation and allowed me to do what I wanted. My grandfather was a member of the court of appeals, the highest court in New Jersey. He’d run for governor twice and had a couple of sons who were lawyers-all Princeton. I guess Princeton and lawyering were a tradition in my family.

My mother urged us to pursue whatever intellectual potential we had. But she also urged us to stay out of politics and public affairs. She had campaigned with her dad and found New Jersey politics overwhelming.

BR: What was your early schooling like?
WDR: I went to public schools in Wilmington, Delaware. Then my senior year I attended St. Andrews School, a residential boarding school in Middletown. I was 16.

BR: Did you have any interest in law that early on?
WDR: Yes, I was very interested in international relations, political science, and public affairs-much more than I was in the physical sciences and mathematics. I came of age in the years leading up to WWII. Reading about the conflict in Europe was an extremely intense experience. The rise of the Nazis, the grab for Czechoslovakia, the Munich crisis, and the invasion of Poland that triggered the outbreak of the war was a pretty searing series of crises.

I knew plenty of people going off to war, some of whom did not return. But I was too young to enlist. So I worked in a shipyard building war ships during the summers of 1942 and 1943.

BR: What year did you begin Princeton?
WDR: I began in the summer of 1944. I studied history, language, politics, and international relations. I also worked as a waiter, furniture mover, and majored in the School of Public and International Affairs, which is now the elite Woodrow Wilson Center of public affairs studies at Princeton.

My senior thesis was on the Communist Party in the Fourth Republic of France. France was under considerable challenge from the Communist Party in the late 1940s because of their prominent role in the resistance to the Germans in the war. The French Communists were a major political power in postwar France.

After finishing Princeton, I wanted a profession that would allow me to participate, if not in public service, then at least in the private dimension of international relations. For a while I was torn between accepting a scholarship for a Ph.D. program in history at the University of Wisconsin and going to law school. I chose law school. I graduated from Princeton in 1948 and went straight into Yale Law School, which I graduated from in 1951.

BR: Did you meet your wife in law school?
WDR: I met her the summer between Princeton and Yale. We were married during my second year of law school. While at Yale I took a course from Fred Rodell, who taught an irreverent course in legal writing, and he and I began to spend a lot of time together. I remember one day during a glorious weekend called Derby Day, the Yale-Harvard boat race. Rodell became so enchanted with my wife that day that he called Judge Charles Clark the next day, who was the chief judge for the U.S. Court of Appeals, second circuit and recommended me as his law clerk.

I took the position with Judge Clark in 1951. I was only 23 and found it all fascinating-law in action. This was real people deciding real cases, rather than just reading about them. Every case was new, and the cases that came to the court of appeals were all first impression cases, which meant the issues, to my astonishment, had never been decided before. You had to fill in the dots between prior precedents and the particular case. It was not simple. The agenda of the court was sprinkled with disputes relating to the First Amendment and the anti-communist hysteria of the time. We had several of the communist conspiracy cases emanating from the Smith Act. Clark was a very strong liberal and hated the violent anti-communist rampage that Senator Joseph McCarthy was on in Washington.

BR: What happened after he recommended you to Reed?
WDR: My wife and I drove down from New Haven in a Singer automobile, which is smaller than an MG. We had all of our worldly possessions in that car, and my wife was pregnant. It was a hot September day when we arrived at the Supreme Court. I got out of the car, and said, "Okay baby, go find us an apartment." She spent the whole day looking to no avail, and we ended up staying with friends in Anacostia for a while.

BR: How did your Supreme Court experience differ from clerking for Clark?
WDR: It was very different. Intellectually, Reed wasn’t nearly as exciting. He did not have the same passion Clark possessed for liberty and constitutional rights, but he was a careful scholar. In the beginning it was slow and I did a lot of reading on European history while waiting for the Court to perk up.

And it did. We had the first argument of Brown vs. the Board of Education, which was reargued the following year. And we had the Rosenberg case, a lengthy espionage case in which Julius and Ethel Rosenberg had been sentenced to death for providing atomic secrets to the Soviet Union. I had already left the Court, and was called back because of the emergency argument that had been scheduled on the case.

BR: You were called back?
WDR: I had joined Arnold & Porter when suddenly Justice Reed called me back to the Supreme Court because of the emergency argument. The Court’s term had officially ended when counsel for the Rosenbergs went to Justice Douglas and obtained a stay of execution. The next day the chief justice called the Court back to review the stay, which was overturned by the full Court. Reed, in spite of my vociferous arguments against imposing the death penalty, upheld the conviction and the sentence.

BR: How did you end up at Arnold & Porter in the first place?
WDR: It was strictly by accident. Life is full of accidents. There had been an article in the Atlantic Monthly titled "Arnold Fortas Porter and Prosperity," which caused quite a stir in the legal community. The gist of the article was that this small law firm was defending people who had become targets of Senator McCarthy. It was really one of the few, if not the only, law firm in Washington that was taking a stand against McCarthy.

Justice Reed was a good friend of Thurman Arnold’s, so when my clerkship at the Supreme Court was over, I met with Arnold and joined the firm. When I came on board, there were only eight other lawyers. The firm had only been in existence for two or three years and had lost some of its major clients because of its stand against McCarthy. I did have other offers in New York, but none as attractive as being in Washington with a firm that was involved in matters with heavy public policy content. It’s a roundabout answer, but that’s how I ended up at Arnold & Porter.

BR: So after the Rosenberg case, you returned to the firm?
WDR: Yes. I was immediately thrown into the Owen Lattimore case. Lattimore had been accused by McCarthy of being the chief Soviet espionage agent in the United States. That charge, which eventually fell flat on its face, lead to a long effort to prosecute Lattimore for lying in his testimony before the Senate Internal Security Subcommittee. He had denied that he had been a follower of the communist line, and those were the days when you invited a perjury indictment for stating you did not follow the communist line. It was a nightmarish experience for him.

The firm had practically taken the case pro bono, and was completely dedicated to Lattimore. The case finally came to hearing on a motion by us, was dismissed by the district court, then went to the court of appeals, which affirmed, and then back in the district court with a new indictment. It was dismissed a second time and went back to the court of appeals which this time split four to four, before the government finally dropped the indictment. It was a long process. Lattimore was accused in 1949, and the case wasn’t dropped until 1956. It was a hideous experience for him.

BR: How did you get involved with the government?
WDR: I was helping Abe Fortas argue shipping and airline cases that involved Puerto Rico. I met Governor Munoz, Governor Sanchez, and Ted Moscoso, who became the first coordinator for the Alliance for Progress in 1961. He’s the one who dragged me into government for the first time.

When we met he was director of what was called Fomento, the economic development administration in Puerto Rico. A lot of the Puerto Rican matters I was handling for the firm, he was involved in. The issues concerned economic development, shipping services, airline services, refineries, and the acquisition of military bases. Moscoso was appointed ambassador to Venezuela when President Kennedy came into office, and six months later President Kennedy called him back to take over the Alliance for Progress. Moscoso invited me to his White House swearing-in ceremony. When I got there, Ted said, "I want you to come into the government with me." I laughed and said, "Oh my God, Ted, we’re going to need to talk about that." He came over for dinner that night. I had filled my wife in on his proposal. She was unhappy I was leaving the firm, and afraid I’d never go back. So when he knocked on the door, she opened it and said, "Ted, you’re ruining my life." But we had a lovely dinner, and by the end of the evening, I’d signed up.

BR: What were some of your responsibilities at the Alliance for Progress?
WDR: I was special counsel. I was the lawyer who was supposed to make everything legal. The first thing I had to do was go to the Dominican Republic. This was January 1962 and Trujillo, the dictator, had been assassinated by the Dominican opposition, without help from us, I might add. His son had taken over, but was quickly thrown out. The country was very unstable, poor, and broke. As one of its first acts under the Alliance for Progress, the United States decided to contribute assistance. I went down with $10 million dollars in my pocket and told the shaky junta that was trying to run things, "You will be pleased to know that we are bringing you this money."

The three-man junta laughed nervously and said if they accepted that, they would be strung up from the nearest lamppost, it was $25 million or nothing. We sent a telegram back to Washington, but nothing happened for days because in January 1962 Washington was inundated with a snowstorm. When I announced that I was going to leave the Dominican Republic, our ambassador said no. He said that the junta had insisted that I stay until the matter was resolved. It’s probably fair to say they kidnapped me, but I was under the most polite restraint. We finally got the $25 million authorized and that was my first exposure to the politics of development assistance by the U.S. in Latin America.

My responsibilities were the legalization of the development assistance program in that hemisphere, including housing projects, industrial projects, and education. It was an exciting time because Kennedy was behind the Alliance for Progress and Latin America was a top priority for him.

BR: You succeeded Moscoso as coordinator for the Alliance for Progress?
WDR: Yes. He left office in 1963, although I’m not sure why. I think it was a mutual feeling on the part of the State Department that he was more flamboyant than he was organized. But I also think he was frustrated by the bureaucratic restraints the State Department imposed on the program. I became coordinator of the Alliance for Progress, which I ran until I resigned in 1965.

BR: Why did you resign?
WDR: I was disenchanted with President Johnson’s policy in the Dominican Republic, which you recall the U.S. invaded in 1965, and Vietnam. The impact of Vietnam on our foreign policy effort was evident even then. We were being constrained in our assistance efforts in Latin America by the demands of the Vietnam War. Johnson played games with the federal budget in order to avoid disclosing the true cost of the war, and that meant there had to be cut backs in other programs. So, I resigned.

BR: And you returned to Arnold & Porter?
WDR: Yes, in July 1965. Transition from government to the firm is the easiest thing in the world. I have now done it three times. In each case I left the government on a Friday afternoon and was in the library at Arnold & Porter by noon Monday without ever skipping a beat. I never took a vacation during those transitions. It was a relief to go back to the private sector.

But this time I wasn’t there long before George Ball, who was undersecretary of state, called and said there was a big problem in Rhodesia. The problem was that Ian Smith had unilaterally declared independence from Britain, which was a euphemism for his decision to turn his back on British proposals for a commonwealth where blacks would participate in government. Ian Smith was thus the head of the white government in Rhodesia. I was asked to head an interagency task force. I went to the library to dig for Economist articles about Rhodesia, because all I knew about Rhodesia you could fit on a pin. And the next day I was in the State Department running the interagency task force.

The big issue was whether we would support the British in an invasion. I did a lot of strategic analysis and concluded that an invasion would be fatal for everybody, especially other African states, such as Zaire and Mozambique, which were vulnerable to retaliation by the Rhodesian army if the British invaded. After a long analysis, the British prime minister and a bevy of top British military brass came over to hear a presentation from President Johnson, which I had suggested, that the United States was not in the position to provide logistic or intelligence support for a British invasion. I think that was right before Christmas 1965. Ten years later, by coincidence, I helped in the effort to get Smith to accept majority rule, which brought an end to his white regime.

BR: What did you do next?
WDR: I returned to Arnold & Porter in 1966 and practiced fairly conventional law. We had the first big pesticide case of the Environmental Protection Agency, a long trial involving the estate of the painter Morris Louis, some work for the Inter-American Development Bank, plus a number of other cases. At that time I was also president of the Society of International Law and had become, at David Rockefeller’s request, the first president of the Center for Inter-American Relations in New York. It was the old Russian embassy that had been saved from demolition by David Rockefeller’s aunt who had ponied up millions of dollars to buy this wonderful building on 68th and Park. Rockefeller called one day to see if I’d take over the project and get it started, which I did. I commuted from Washington to New York several days a week. I dug up money for the budget to refurbish the building because the Russians had left it a mess. We raised millions of dollars. It still stands today as the headquarters of the Council of the Americas and the Americas Society, where all Latin American heads of state come when they wish to make a speech in New York.

BR: How did you become associated with Henry Kissinger?
WDR: I had come to his attention because he was looking for a legal advisor in the State Department, and Rockefeller had suggested me. So Kissinger called and asked if I would become the legal advisor. I said no. I told him I would not serve in the Nixon administration. The day Nixon resigned, Kissinger called back and asked me to reconsider. This time he wanted me to run the Latin American Bureau of State. I went to see him and gave him my views with respect to Vietnam, which were not at all consistent with what the administration had been doing. I also told him I’d heard rumors that the U.S. Government had destabilized Chile through the CIA. I said if there were any CIA covert operations going on during my watch, I’d resign and denounce the operation.

I joined the State Department in August 1974 as assistant secretary of state for inter-American affairs. Then I was moved to undersecretary of state for economic affairs. In 1976 Kissinger proposed that I become deputy secretary of state, number two in the department. But political advisors in the White House had second thoughts about that because Reagan was concentrating on knocking Ford off in the primaries and was attacking our policy in Cuba. I was a Democrat. They thought that having a Democrat as number two in the State Department would be a vulnerability for Ford. So I became undersecretary and as a result, worked with Kissinger on a lot of issues including the Panama Canal Treaty negotiations, and the one-man-one vote breakthrough in Rhodesia.

BR: What was your first impression of Kissinger?
WDR: I found him incredibly forthcoming. He felt a sincere concern over the anguish the United States was going through as a consequence of Vietnam and Watergate. He was baffled that so many of those involved in the Kennedy and Johnson administrations had switched sides on Vietnam. His view was that an immediate withdrawal would be a betrayal of the South Vietnamese and would have been a dishonorable act that would have cost us legitimacy in the region. As an individual, I liked him. I disagreed with some of his policies in Southeast Asia, but I understood why he felt they were in the national interest.

I’ve worked with him since, and work with him now. I’ve helped him on his memoirs, all three volumes, and I am vice chair of Kissinger Associates. We’ve been close since 1974.

BR: Tell me more about the Panama Canal Treaty negotiations?
WDR: We had the two treaties virtually negotiated at the end of 1975. But President Ford decided that he could not expose himself to further political attack from Reagan by signing the treaties. So I went to Panama with Bill Clements, undersecretary of defense, and George Brown, chair of the joint chiefs of staff, and we went to see General Omar Torrijos, who was de facto running things. We told him the facts, that we would have to wait until after the 1976 elections to finish the negotiations and push ahead. The fear was that he’d say the hell with you, I quit. But he didn’t. He accepted our assurances about moving forward. President Carter and General Torrijos signed the Panama Canal Treaties at the headquarters of the Organization of American States in Washington, D.C. eight months after Carter’s inauguration.

BR: What would have happened if we tried to hold on to the canal?
WDR: I think there would have been outrage and violence in Panama. We didn’t negotiate the treaties because we were blackmailed, mind you, but because terminating the last vestige of American colonialism in this hemisphere was the right thing to do. It was a turning point in our relationship with that hemisphere and terribly important on that account.

BR: The treaties were negotiated at the end of 1976, and you left the government in 1977?
WDR: Yes, we all did. I came back to Arnold & Porter once again. But then I took a sabbatical and taught on the law faculty at Cambridge in England. I lectured on international law and the use of force.

Several years later, I also took some time off as senior counselor of the National Bipartisan Commission on Central America. President Reagan appointed the commission to report on what ought to be done regarding the crisis in El Salvador and Nicaragua. It was called the Kissinger Commission and I was backstopping Henry. We traveled all over Latin America picking up testimony from presidents and military officers.

BR: What were some of your perceptions on how the Reagan administration handled El Salvador in the 1980’s?
WDR: U.S. Policy was hotly debated in the United States, especially about providing military assistance to Salvadorans.

Kissinger was chair of the National Bipartisan Commission. He wanted to expand the U.S. program to include more civic action, economic development, and financial assistance to get the economies of Latin America countries in order. He also wanted to multilateralize the effort, so it wasn’t just the U.S. dealing unilaterally with issues that could be handled more effectively in the context of an inter-American system.

I was pretty much on leave from the firm for a year while working on the commission. It was not my first experience in the harsher side of Central American politics. Prior to the commission, President Carter had asked me to be his envoy in connection with the murder of four church women in El Salvador. Four Americans had been not very mysteriously murdered. All evidence pointed to the military units of Salvadoran government. I went and looked at the evidence and reported to Carter.

BR: What was determined in your report?
WDR: Some of the church women were in El Salvador already, while others were coming in on a plane. The nuns came through customs, were picked up by their friends, got in a minivan, and drove away. Shortly after, they were found dead, not far from the airport. The reason for the assassinations was that the church groups the nuns were involved with were helping the peasants, many of whom the army believed were members of guerrilla forces. It was one of the police forces in El Salvador engaged in a dirty war that instructed the military units to shoot the nuns because they were helping the rebels.

Carter was profoundly sympathetic. He felt other peoples’ pain and wanted to do something about it. I spent hours with him on the incident regarding the nuns. He wanted to know the facts in extraordinary detail, such as where the car was found, the location of the bodies, and who was involved in the investigation. This incident brought home to Americans how bloody the Central American wars had become.

BR: When you first joined Arnold & Porter there were eight of you, and now there are more than 450. What has it been like to watch the firm expand?
WDR: It’s grown by accretion rather than acquisition. We brought in a few small groups of people from time to time because we needed them. But essentially most have moved up through the ranks. The basic issue has been whether we would lose that sense of intimacy, collegiality, mutual respect, and shared purpose that marked the early years at the firm. Remarkably enough, we have not done that, which is why I’ve stayed for as long as I have.

We’ve also maintained our commitment to excellence by practicing the best law we can practice. The remarkable thing has been the way those early values have been preserved and nurtured throughout the expansion. It’s a lot bigger, with more talent and expertise than I ever imagined.

BR: Have you seen the practice of law change?
WDR: My God yes, in so many ways. The first being the mechanics. When I think that I lived from a period of carbon paper, mechanical typewriters, and Xerox machines to computers and e-mail, and that I am in real time in communication with clients in Nigeria and Saudi Arabia, I am amazed.

I’ve also seen changes in the complexity of the law. People are much more specialized. The division between litigation and nonlitigation is very sharp. I find this unfortunate because I have spent as much time in court cases as I have on nonlitigation matters. I would not like to be all one or all the other.

BR: When you came to Washington, did you think you’d stay so long?
WDR: Yes. Washington is fascinating. It is the capitol of the world, but it was a cow town when I first got here. It was a cultural desert. But landing here when I did in the midst of front-page controversies, the Lattimore case, the Rosenbergs, Senator McCarthy-there were great public controversies from the beginning, of which I had a small part. It’s easy in this town to be close to what is significant in the world. And it’s still exciting. I have no regrets. I think I’ve had more than a full life.