Defending Guantanamo Detainees:

I too am very troubled by remarks from deputy assistant secretary of defense of detainee affairs Cully Stimson that seem to urge private businesses to pressure law firms to stop defending Guantanamo detainees:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.
Listen to the radio interview yourself, starting at 3:00 into the file. It seems to me quite clear from the interview that the Secretary isn't merely predicting such an action by the law firms, but also saying that such an action would be good. A few thoughts:

(1) Just to avoid misunderstanding, I am not claiming that it is illegal for businesses to pressure their lawyers to stop taking certain other cases, or to boycott lawyers who do take such cases. Businesses, like other clients, are entitled to choose the lawyers they want. Nor am I claiming that it is unconstitutional for government officials to urge businesses to do this, so long as the urging stops short of threat of governmental retaliation (whether through legal punishment or through withdrawal of government contracts). I think Mr. Stimson's urging is improper, not that it's unconstitutional.

(2) I also do not want to claim that it's categorically improper for clients to avoid lawyers who are embarked on legal campaigns of which the client disapproves. In particular, I do think that clients may rightly turn away from lawyers and law firms whose motivations the client finds to be repugnant. If a lawyer or law firm's genuine goal is to try to help jihadists (or racists or Communists or whoever else) avoid legal liability in all circumstances, simply because they back jihadists/racists/Communists, a client may reasonably conclude that he does not want to have doings with that organization.

I think this tracks our common sensibilities in social life as well. I may be sad that a public defender gets a factually guilty rapist released, but he's doing his job, it's an important job, and he's supposed to his job as well as possible; I won't cut off social or business connections with him. But if I learned that a public defender defends rapists because he thinks rape is good, I would have a very different view.

(3) But it 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.

Now one might thing that, despite the lawyers' good intentions, their actions will yield bad results. One might, for instance, think that the Court was wrong in holding that courts should consider detainees' habeas claims, and that getting more lawyers involved in the process will hurt national security. That's fine. But surely this is an area on which reasonable, decent, thoughtful Americans can differ.

Again, let's return to the analogy of political belief and expression, in social and professional life. As I said, I'd have no qualms with people's refusing to invite Communists, Nazis, Klansmen, and the like to dinner, or even refusing to do business with them. (I would act the same myself.) But if someone refuses to do business with someone because he disagrees with his stand on global warming, social security reform, the war in Iraq, affirmative action, and the like, that person is being intolerant. He's undermining social norms that are vital to a working democracy — norms that maintain connections across political aisles, that allow people to disagree without rancor or hatred, that eventually allow compromise, and that help make possible unity in the face of common threats. And, if his goal is to try to change others' speech, he's improperly trying to do this through financial and social threats rather than through persuasion. The lines here are not crisp, and since we're talking about propriety rather than law, they neither can be crisp nor need to be crisp.

Likewise when we shift back from a lawyer's political expression to the lawyer's legal representation. In extreme cases, where the lawyer's goal is really to have the jihadists win, or to have rapists rape with impunity, I too wouldn't do business with the lawyer. But when lawyers defend Guantanamo detainees out of the motives I describe above, it seems to me that they are well within the zone of that which should be tolerated, without social or professional retaliation, even if we think that on balance the lawyers' actions end up being harmful. To do otherwise would likewise undermine important social norms of encouraging lawyers to provide the legal system with services that the legal system sees as necessary for its most effective operation.

(4) So far I've spoken just of what businesses should do; now to the government official's statements. The detainees' lawyers are, in court, the government's adversaries. But the premise of our legal system is that you can be the adversary and not the enemy, and that in fact your representation can help the legal system run by the very same government that you are opposing.

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.

(5) Finally, quite aside from the argument that businesses should pressure law firms to stop representing detainees, isn't there something troubling with the motivation that Stimson is urging? He's not even saying that corporate CEOs should pressure firms because the CEOs are patriots, or because they hate terrorists, or because they want to prevent future terrorist attacks. It's because the terrorists hit their bottom line.

Is he really appealing not to the CEOs' patriotism, or anger over mass murder, but to their anger that terrorists cost business money? To look at the flip side, should construction and security contractors who made money (perfectly honorably, I should stress) as a result of the terrorist attacks start giving more business to law firms who are representing detainees, on the theory that "those firms are representing the very terrorists who [benefited] their bottom line back in 2001"? Yes, CEOs should surely look out for the bottom line; that's their job. But this strikes me as a context in which the concerns about past impacts on the bottom line should be the least relevant.

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Disclosure: I am affiliated on a part-part-part-time basis with Mayer, Brown, Rowe & Maw, one of the firms correctly named by Stimson as representing some of the detainees. I am not personally involved in those cases.