Lawyers On Stimson
Tuesday January 16, 2007
No "news" updates to the Charles Stimson law-firms-shouldn't-defend-the-accused-at-Gitmo story ... but Michael O'Hare points us to the Washington, DC Bar rules of professional conduct. A relevant rule:
1.2 b A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities.
And although there's no "news" per se, there is thoughtful and pointed commentary from lawyers who blog. Here's a sampling:
Concurring Opinions (attorney) touches on an issue that bothers me, and that I emphasized in my inaugural podcast, which focuses on this issue. That is this: Stimson equates accusation with guilt:
Stimson implied that Big Law Firm clients should boycott those shops that represent individuals at Gitmo. Why would that be? It could only be because these individuals - who haven't been tried and found guilty of anything - must be guilty. And thus the act of representing them in their hearings can only be seen as undermining their punishment.
At Jurist, Nancy Rapoport (law professor), colorfully reminds Stimson of the professional obligation that attorneys have to represent "indigent clients, even highly unpopular ones:"
Carles Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, recently excoriated several large law firms, suggesting that the firms’ pro bono representation of Guantanamo detainees rendered them unfit to continue their for-profit representation of corporations. Apparently, Mr. Stimson has missed the recent renaissance of Harper Lee, Truman Capote’s friend who wrote To Kill a Mockingbird. In that famous book, lawyer Finch represents Tom Robinson, an African-American man falsely accused of raping a white woman, at a time when such accusations typically resulted in public lynchings. Suffice it to say that Atticus Finch represented a very unpopular client.
Obsidian Wings (attorney) points out the fallacy in Stimson's "logic:"
This is by now obvious, but Stimson — either from malice or stupidity — is treating efforts to ensure that people are properly detained as efforts to “protect terrorists.” Of course, what’s really irritating Stimson is that the vigorous representation of the detainees is revealing how many of them are being wrongfully detained and how generally incompetent and immoral the administration’s detention policies have been.
To take a larger step back, what’s interesting is that Stimson’s criticisms could just as easily be directed against our criminal lovin’ Founding Fathers. The Bill of Rights is, after all, rather obsessed with protecting the criminally accused. But when you look at the individual amendments closely, you’ll see that they aren’t so much protections for criminals per se as they are procedural protections for the criminally accused.
Talk Left brings us commentary from military law expert Donald G. Rehkoff:
Stimson's "advertised" also as being a Navy Reserve JAG. As an officer, he's also taken an "oath" very similar to the one all attorneys take, "to support and defend the Constitution from all enemies, foreign and domestic." In addition to his ethical delicts, he has conducted himself in a manner "unbecoming an officer and a gentleman," a crime under 10 USC 933. He is unworthy of being an officer as well.
Rehkoff points us to Key Figures In Public Trials, reminding us of the role of a founder in defending Redcoats:
John Adams, in his old age, called his defense of British soldiers in 1770 "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country." That's quite a statement, coming as it does from perhaps the most underappreciated great man in American history.
The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. "With tears streaming from his eyes" (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.
Unfogged (attorney) positions Stimson's remarks in a troubling historical context:
This is literally an attempt to create a McCarthyist-type blacklist; Stimson is trying to ruin people professionally because he's politically opposed to the causes (like, oh, the rule of law) they're working for. I doubt it will have any effect; they've left it too late. Dark accusations of aiding the terrorists might have had some resonance in 2002, but the last five years of watching the administration drain every last bit of political advantage from the GWOBadThingsAndScaryPeople should (I hope) make this look like the pathetic flailing that it is.
At The Volokh Conspiracy (law professor), we get a well-reasoned explanation of possible motive and an indictment of government efforts to squash the defending attorneys:
[I]t seems extremely unlikely that those lawyers who represent Guantanamo detainees do so because they support jihad against America. Rather, I take it that they are doing this chiefly because they think that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren't really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believe that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides...
It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.
At the PrawfsBlawg (group blog, law professors), the concern is with the Wall Street Journal's follow-up and the implications of that editorial:
[T]he WSJ editorialist above, who glibly describes these firms as working to "tilt the playing field in favor of al Qaeda" ... suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing. Presumably, then, when a lawyer or law firm represents a "reputable firm" that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct.
Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants. Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases.
Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases. But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases.
More good legal blogs: American Constitutional Society, Discourse.net, LawClinicTV
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Comments
Thank you for an excellent post, Kathy. I very much appreciate the bevy of blog posts which you have weighed against Stimson’s misdirected efforts. Sadly, his efforts are reflective of the present government’s
attitude toward just about anything that stands in the way of what it intends, no matter how disastrous in the near or short
term. If the law stands in the way, the law must be changed. This is unfortunately in keeping with the rumored reference by
the current president when he is said to have called the US Constitution a “g*d-d*mned piece of paper”. I say this is rumored, but it is reported as being attested by three people
present [see
http://www.capitolhillblue.com/artman/publish/article_7779.shtml
and
http://colorado.indymedia.org/newswire/display/12159/index.php]. This attitude is also attested in the outing of Valeria Plame and the accompanying isolation of Joseph Wilson, the ‘resignation’ of General Shinseki, and several others who did not see eye-to-eye with the present regime. It is also attested in the promotion of those who would bend the rules or turn a blind eye to them as needed (e.g., Alberto Gonzales, John Negroponte, Robert Gates).
The kidnapped civilians being held at Guantanamo had virtually no chance of being threats to the US prior to their wrongful
detention and incarceration. Pakistani tribal chieftains are not known for their absolute sense of morality. Rather, they will do whatever benefits their power structure and enriches their pocket. This is the same throughout the bedouin-like structures from the Mediterranean to the Indus mountains. As recently as the 19th century, whole villages in Palestine were known for theft because the economy was so bad and the only form of viable
commerce was negative commerce. Given this dynamic, what sense of justice might these chieftains apply when the US is paying them for collaborators by the head? Consequently, Gitmo contains a lot of people who happened to cross those chieftains who were in the pay
of the US. They had virtually no chance of ‘hitting’ the US but simply had a falling out with the wrong people. This is why there are people at Gitmo who had never heard of Al-Qayda or Usama Bin Ladin. And, because of this randomness, there are those at Gitmo who remain untreated for diabetes, dementia, and
other debilitating diseases.
So the kidnapping victims at Guantanamo are, to a significant degree, the result of a fishing expedition on the part of the US regime. If Stimson’s attitude is allowed traction, most of the fish will rot on the boat, never having a chance to be thrown
back. But, then, that may well be the policy of the present American regime. After all, they were not enemies of the US before the US ghosted them, but I strongly suspect that many
would be now. Who wouldn’t?
The only way to diffuse the situation, in my opinion, is to get them excellent legal representation and have the American taxpayer pay for the mental lapse of the present government. That being said, I would not be hopeful for justice in an arena where the
prosecution gets to view the defense’s evidence before trial and choose which evidence can be presented and which must be left out. After all, if a US citizen, Jose Padilla, can be held for over three years without due process and without a fair trial, what hope has a shepherd from the deserts of Pakistan?