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Defending Detainees -- One Last Time

In reviewing the comment threads, I think many have lost sight of what caused me and many others (including, at last count, over fifty law deans) to react so strongly -- and so negatively -- to Cully Stimson's comments about law firms representing detainees. The issue is not what legal process Guantanamo detainees should or shold not receive; nor is it whether major law firms should devote their resources to these cases or some other cause. Rather, it is whether it is appropriate and ethical for a government official with legal training to discourage private attorneys from representing unsavory clients in legal proceedings.

The best defense of Stimson's remarks probably comes from Michael Abramowicz at Concurring Opinions. Michael is inclined to give Stimson the benefit of the doubt, and interpret his remarks very charitably. I understand Michael's point, but I don't buy it. Listening to the interview, I did not -- and still do not -- judge Stimson's intent so innocently, particularly in light of the quotes in the WSJ indicating that Stimson, or someone else, was seeking to discourage firms from defending detainees. While I would agree that Stimson's comments are not sancitonable, they are still objectionable, particularly coming from someone with legal training in his position.

It is well established that prosecutors have greater ethical obligation than private attorneys and, in particular, have an obligation to ensure the fairness of judicial proceedings -- even where this may undermine the government's ability to secure a conviction. Stimson is not a prosecutor in his current position, but he is a former JAG and U.S. attorney, so he knows the rules. More important in this instance, he is an official involved with the detention and prosecution of detainees. He is, after all, Deputy Assistant Secretary of Defense of Detainee Affairs. Insofar as detainees are entitled to judicial process, whether habeas proceedings to challenge their detention or trials for alleged violations of the law of war, they are entitled to the defense counsel of their choice, not the government's. Deliberate action by a government attorney to interfere with that choice is unethical, and contrary to the spirit, if not the letter, of the relevant rules of legal ethics.

Tracy Johnson (www):
Maybe they'll get the next episode of Discovery Channel's "Dirty Jobs"!
1.15.2007 2:15pm
Tracy Johnson (www):
To paraphrase an old cliche', someone's gotta do it.
1.15.2007 2:16pm
kelvin mccabe (mail):
Excellent point. Add to this the growing concern that the tribunal process itself is inherently flawed (skewed to reach a pre-determined result) with the use of coerced statements from one detainee to prove another's involvement or the use of one's own "confession" after certain harsh interrogation methods are employed, and i can see why the government does not want high caliber attorneys representing the detainees. While undoutedly some or maybe even most of the detainees are actual enemy combatants, it seems fair to conclude the rest are not. Locking those people up indefinately is a travesty that can be prevented if and only if they are given a fair chance to prove innocence (or non involement with taliban, al quaida, whatever) by confronting the evidence against them in a fair manner. This appears to be something the gov.t does not want to happen, so the question has to be asked: What are they worried will happen if they do? Is it simply a matter of practicalities - like not being able to get prosecution witnesses (say a soldier who picked up an enemy combatant)to come and testify?
1.15.2007 2:27pm
PersonFromPorlock:
Perhaps, if forty years ago Gov. Wallace had suggested that Alabama businesmen 'think about' not using lawfirms that also represented "Freedom Riders," we might by now have taken your lesson from it. But the current situation is too immediate to allow for much abstraction.
1.15.2007 2:31pm
Salaryman (mail):
Is Stimson acting as an attorney in his current position? If not, does/should that have any effect on his enforceable obligations under rules of professional ethics for attorneys (as opposed to any obligations he may have as a matter of prudence or ethics generally)? I realize Mr. Stimson's current position "feels" closer to the practice of law than if he had, say, gone into the landscaping business, but I wonder what the rule is on this issue.

I understand that he could be disbarred if he did something in a capacity other than as an attorney and whatever he did warranted disbarment (i.e., some crime of moral turpitude such as embezzlement). But is it the case that if you're a JD acting not as legal counsel, but as Deputy Assistant Secretary of Defense of Detainee Affairs, or as CEO of a privately held corporation, or whatever, that your obligations are measured not only by the rules and strictures generally applicable to Assistant Secretaries of Defense or CEOs of small companies but also by rules applicable to the practice of law?
1.15.2007 2:38pm
Parvenu:
My understanding is that once you have a J.D. and have passed a bar exam, you are an "attorney" for the purposes of ethics rules even if all you do is bartend. Of course, being disbarred if you're just a landscaper probably would have less impact than if you were actually an active legal practitioner. Lawyers have responsibilities as public citizens that attach to them 24/7, regardless of the capacity in which they act. It is, at least in idealistic theory, one of the reasons why entry into the profession is restricted (though the crass might suggest other reasons for barriers to entry).

In addition, the Model Rules do contemplate lawyers entering public service, at least in the comments. It's hardly unheard-of, after all.
1.15.2007 2:48pm
steven lubet (mail):
The most relevant rule is probably 8.4(d), which defines Misconduct to include "conduct that is prejudicial to the administration of justice." One may violate that rule even when not acting as a lawyer.
1.15.2007 3:12pm
A.S.:
Insofar as detainees are entitled to judicial process, whether habeas proceedings to challenge their detention or trials for alleged violations of the law of war, they are entitled to the defense counsel of their choice, not the government’s.

I've made other points in the prior threads, but maybe we should explore this one. Is this "judicial process"? The detainees are facing Combatant Status Tribunals. That is to determine whether they are "enemy combatants"; it is not a criminal proceeding, either under civilian law or under military law. An analogy to civilian criminal law is, to me, completely inapt.
1.15.2007 3:43pm
Anderson (mail) (www):
Is this "judicial process"? The detainees are facing Combatant Status Tribunals. That is to determine whether they are "enemy combatants";

How amusing -- the CSRT's, their defenders tell us, are quite fair. You're just not necessarily entitled to counsel, is all. Who needs counsel, when the American gov't is so evidently trustworthy?

Perhaps if A.S. recalled that an "enemy combatant," according to the White House, can be held for the rest of his life without trial, he would rethink the importance of fairness at the CSRT. Or not.
1.15.2007 4:17pm
JEBTex:
I think lawyers should be encouraged to represent people who we detest. However, I think much of the criticism of Stimson is hypocritical, insofar as lawyers on the Left routinely criticize Bush DOJ and OWHC lawyers who, e.g., wrote memos on detainee policy.

(See Jonathon Adler's post on January 11 at 8:42 a.m.)

Presumably, if writing briefs on behalf of unlawful enemy combatants is not a disqualification from being hired by a corporation, then writing briefs on behalf of the President of the United States should not be a disqualification from being hired by the University of Minnesota; moreover, if criticising people who wrote detainee memos is consistent with the rules of professional conduct, then so is criticising people who wrote briefs on behalf of terrorists.

As Stimson's critics have recently asserted: One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not.
1.15.2007 4:49pm
Elliot123 (mail):
So, all this is just a parochial discussion of conduct by attorneys? And the status of being a government attorney is the operative factor? While we have Occam's razor out, would it matter is he was an attorney in private practice? Would it matter if he was a government employee but not an attorney? Would it matter if he was neither? What's the real beef?
1.15.2007 4:50pm
plunge (mail):
Let's not forget that the WSJ published an editorial calling for the same thing pretty much the day after Stimson's comments, and it was a right-wing talk show host who just before them, pulled the FOIA list that Stimson cited. The idea that this was some innocent reference or musing about legal ethics just doesn't even pass the laugh test. These are right-wing talking points with some obvious purchase and discussion in those circles.
1.15.2007 5:07pm
James Dillon (mail):
JEBTex,

I don't think the objection to the detainee memos was that they were written on behalf of the administration; the objection (whether valid or not) was that they were a transparent and disingenuous effort to evade the controlling law rather than a good-faith disagreement about the proper interpretation of the law. The former practice could reasonably be criticized as abusive and unethical regardless of the identity of the lawyer or client in question, though the fact that it was allegedly undertaken on behalf of the United States government did, in the eyes of many, make the offense even more egregious, whereas the latter could not.
1.15.2007 5:15pm
A.S.:
Perhaps if A.S. recalled that an "enemy combatant," according to the White House, can be held for the rest of his life without trial, he would rethink the importance of fairness at the CSRT. Or not.

That's not true. Enemy combatants (comprised of both lawful combatants, such as POWs, and unlawful combatants, as here) can be held for the duration of the conflict. That's black letter international law - no different than we could hold Japanese enemy combatants for the duration of WWII. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004):


Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as 'indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after "conclusion of peace"); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301("conclusion of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them 'without delay after the cessation of active hostilities,' unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences" (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)).

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts /2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States."

In any event, Anderson has not provided one whit of argument as to whether the Combatant Status Tribunals are, in fact, "judicial process" to which Prof. Adler's post refers.
1.15.2007 5:33pm
JEBTex:
James Dillon,

You write, "the objection (whether valid or not) was that they were a transparent and disingenuous effort to evade the controlling law rather than a good-faith disagreement about the proper interpretation of the law."

In the context of this argument, I don't think that work product can be separated from representation. Lawyers are routinely required to make arguments that they would not personally find persuasive. The acceptance of representation of a detainee no less than representation of the President may (and probably does) require the occasionaly adoption of arguments that are disenguous and invalid. A lawyer's job is to be a zealous advocate; and the principle that a lawyer should not be penalized for advocacy on behalf of a client whom one might find unsavory applies not only to someone picked up in an Afghan compound but also to someone who received 63,000,000 votes two years ago.
1.15.2007 5:38pm
Anderson (mail) (www):
for the duration of the conflict

Justice O'Connor's glib "centrism" aside, we don't seem to be working very hard to end the conflict in Afghanistan, do we?

Are we allowed to hold these people until there's no more Taliban?
1.15.2007 5:49pm
annej (mail) (www):
some left wing traitors agree with you prof. Adler...
1.15.2007 5:57pm
James Dillon (mail):
JEBTex,

That's a fair point, but I think it goes further against criticism of the detainee memos than against criticism of detainee defenders. Again, criticism as to the former was directed not at the identitity of the client, but at the substance of the argument. No one has ever suggested that it's unethical to represent the United States of America in court-- a great number of federal judges, law professors, and elite private practitioners have been Assistant U.S. Attorneys or DOJ lawyers at some point in their careers, after all, and no one would argue with a straight face that there's anything wrong with that. Your point that there's a fine and often obscure line between zealous advocacy and flouting the rule of law (especially, I think, when advocating on behalf of the government, which is in a position to more readily flout the rule of law than any private litigant could ever be) is well taken, but I don't see how it's relevant to the categorical distinction between 1) criticism of the work of a few government attorneys on the basis of the substance of their work product, and 2) criticism of a few private attorneys on the basis of the identity of their clients.
1.15.2007 5:58pm
annej (mail) (www):
@Anderson: My biggest problem with this whole thing is exactly the question the US is fighting. Bush said time and time again that he is fighting terror (and the people that harbor them). Whatever that means. Does that include the left wingers that took a shot at the US embassy in Greece, the Taliban in Afghanistan, Al-Qaeda, Hamas, ETA, IRA etc.?

There are all these people claiming that the US can hold detainees as long as the war lasts. But no-one ever told us who it is we are fighting. Let's ask A.S.: who do we have to defeat in order for this war to be over? Please define "the terrorists".
1.15.2007 6:01pm
Anderson (mail) (www):
Anderson has not provided one whit of argument as to whether the Combatant Status Tribunals are, in fact, "judicial process" to which Prof. Adler's post refers.

Some people would think that a tribunal which could, as I stated, result in one's lifetime incarceration, was "judicial process" by any sane definition; but as I predicted, A.S. may not agree.
1.15.2007 6:03pm
JEBTex:
James Dillon,

Your point is well taken also. However, I think your dichotomy is partially inaccurate.

I think you would agree with me that at least some of the critics who think they oppose the substance of the DOJ/OWHC memos actually merely oppose the client for whom they were written (i.e. the notion that the people at Gitmo are unlawful enemy combatants who are not entitled to US Constitutional and Geneva Convention protections is not nearly as absurd as the critics' vitriol would suggest it is; so surely some of the critics are just reflexively opposed to the substance of the memos because they were written for the President).

Similarly, Stimson and those sympathetic to his comments are not objecting merely to the identity of the law firms' clients (i.e. the notion that unlawful enemy combatants - people who, arguably, do not deserve due process of any kind - should not be represented by law firms representing companies who lost hundreds of billions of dollars due to the actions of some of those detainees' colleagues is not entirely unrespectable).

I think that your dichotomy is mostly correct; I just wanted to note that it is probably not entirely so.
1.15.2007 6:28pm
Nikki:
Something I haven't seen anyone else raise: if there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it? And if there is no such investigation, did he come rather close to defamation? (Given that he didn't actually name any firms, as I recall his comments.)
1.15.2007 6:34pm
plunge (mail):
So if we took combatants in he War on Drugs, we could have kept them without legal counsel for several decades?
1.15.2007 6:42pm
James Dillon (mail):
JEBTex,

I think we're more or less in something reasonably close to agreement, but I want to follow up on this somewhat tangential point:

the notion that unlawful enemy combatants - people who, arguably, do not deserve due process of any kind - should not be represented by law firms representing companies who lost hundreds of billions of dollars due to the actions of some of those detainees' colleagues is not entirely unrespectable.

I've seen the suggestion that the detainees' interests are adverse to those of law firms' corporate clients because those clients lost a lot of money due to terrorist attacks on 9/11, and it just doesn't seem right to me for a lot of reasons. Putting aside the fact that it tends to prejudge the issue of guilt (a detainee who is not in fact a member of al-Qaeda, obviously, is not even indirectly responsible for the financial costs of 9/11 at even the greatest conceivable degree of attenuation), the underlying premise seems to be that it's unethical for law firms to represent clients whose activities or interests cost other clients money. This doesn't seem at all right to me. To use a simple example, the Coca Cola Company and Pepsico surely do more damage to each other's bottom lines through open competition than 9/11 did to either one of them, yet there's nothing unethical about a single law firm representing both Coke and Pepsi in unrelated litigation. Moreover, and I think either Prof. Adler or Volokh made this point in one of the earlier posts, if the ethical problem stems from the fact that the detainees, allegedly, indirectly, cost some of the law firms' corporate clients money, what about the reverse argument, that corporations who have profited from the war on terror should in fact encourage law firms to advocate on behalf of detainees, presumably for the purpose of encouraging terror and increasing profits? Should Halliburton be encouraging Shearman &Sterling to do more pro bono work on behalf of Guantanamo detainees, on the ground that such work is ultimately good for Halliburton's bottom line? That argument seems, to say the least, unseemly, yet it follows naturally from the suggestion that financial concerns should motivate corporations' response to pro bono representation of Guantanamo detainees by elite law firms.
1.15.2007 6:48pm
Random Commenter:
Looks like this comment thread is well down the same deeply-worn path that the previous thread took. To respond to JA directly: politics is hardball, and the administration's appointees are paid to play it. If a bunch of marquee law firms that do nothing for a great many indigent American criminal defendants suddenly find themselves overwhelmingly interested in detainee cases where there is, coincidentally, a chance to embarrass the administration, the administration and its supporters are likely to take notice and call bullshit on them. Fine, same thing happens over other issues with the party labels switched. The involved law firms, administration officials, and business leaders being appealed to all know what game is being played. Time to move on.
1.15.2007 7:07pm
Kovarsky (mail):
Random Commenter,

Whoa. Your throaty attempt at a chris hitchens-esque rendition of "the brutal truth" proceeds from some pretty poor premises, the flaws of which aren't really debatable.

If a bunch of marquee law firms that do nothing for a great many indigent American criminal defendants

Do you have any idea what fraction of watershed criminal procedure rulings are a direct result of the involvement of many of these firms? I can guarantee you that for every single criminal procedure case before the current supreme court, a major law firm is helping behind the scenes, whether they're the name in the caption or not.

politics is hardball, and the administration's appointees are paid to play it.

No, actuallly Stimson is a Deputy Secretary in Charge of Detainee Treatment. That means, uh, he's not on Rove's P&L statement. I'm guessing you aren't deliberately being that obtuse, so I assume you mean that in some sense everybody in the executive branch is paid to "really" be a politician, and proceed somewhat densely from that proposition that because every executive officer is in some sense a politician that they should be "allowed" to conduct any political exercise. i guess you would also have to commit to an equally absurd definition of "political exercise," since this was, you know, a freedom of information act request.

suddenly find themselves overwhelmingly interested in detainee cases where there is, coincidentally, a chance to embarrass the administration, the administration and its supporters are likely to take notice and call bullshit on them.

o, i see where you are going with this. i get it. the big law firms didnt care about the abuses of the war on terror until bush started the war on terror. that's a swell point. i'm guessing a few others share their "hypocrisy" in that they didn't do more to correct executive overreach in this area before the overreach existed.

can you answer me this? is your central assumption here that the Firm's interest in Guantanamo is only a byproduct of a bush-vendetta? if that is not what you mean, can you please explain what you do?

Fine, same thing happens over other issues with the party labels switched. The involved law firms, administration officials, and business leaders being appealed to all know what game is being played. Time to move on.

i don't get it. are you saying the law firms knew the administration was going to try to package their detainee representation as a sales pitch against participating firms? are you a lawyer?

even if they didn't put it past the administration, does that make it right? is this the "shit happens" response? you could have been more succinct and saved some space.
1.15.2007 7:55pm
Kovarsky (mail):
JEBTx,

You are missing a fundamental point. In the memos, the administration was acting as a lawyer. In the FOIA, they're acting as a citizen party with standing to assert a request. The professional burdens are completely different.

In the latter scenario its abusing its - in the purest sense - market power over information to promote its interests in litigation. that's vile.
1.15.2007 8:05pm
Whodat:
Professor Adler:

For whatever effect it may have on your analysis (perhaps not much), are you sure Stimson has involvement in the prosecution of the detainees, as you assert? I'm no expert, but I think the prosecutorial function resides with, and is exercised by, an organization within the Defense Department that is statutorily independent of the chain of command in which Stimson resides. I think legally he's prohibited from performing any function whatsoever in the actual prosecution of these detainees.
1.15.2007 8:23pm
Whodat:
Professor Adler:

For whatever effect it may have on your analysis (perhaps not much), are you sure Stimson has involvement in the prosecution of the detainees, as you assert? I'm no expert, but I think the prosecutorial function resides with, and is exercised by, an organization within the Defense Department that is statutorily independent of the chain of command in which Stimson resides. I think legally he's prohibited from performing any function whatsoever in the actual prosecution of these detainees.
1.15.2007 8:23pm
rfg:
JEBTex:

I am uncomfortable with "the notion that the people at Gitmo are unlawful enemy combatants who are not entitled to US Constitutional and Geneva Convention protections".

I do not find the notion completely absurd, after all, humanity has operated in this manner for a great deal of time and precedent is a powerful argument.

I do wish that we would find a different manner of dealing with these types of situations. Although our enemies (and we do have them) may well behave in barbarous ways, don't we have to behave in better ways?
1.15.2007 9:31pm
Dave Hardy (mail) (www):
I find the legal status of the "detainees" a logical mess with no good answer.

1. Treat them as ordinary criminals. Hmm... whatever they did was legal, when and where they did it. (yeah, I know, 'war crimes tribunals' prosecute those all the time).

2. Treat them as combatants. Who were caught out of uniform, not serving a nation-state. Drumhead court martial and firing squad.

3. Treat them as POWs. Presumably to be held until Al-Quaeda surrenders. Not likely to happen in our, or their, lifetimes.

4. Turn them loose, to rejoin the fight.
1.15.2007 10:09pm
Justice Stevens (mail):

if there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it? And if there is no such investigation, did he come rather close to defamation?



1. How could an investigation of the law firms be compromised? You simply ask the law firms for their billing records on these cases. The billing records are not privileged. If any known terrorist front organizations pop up on the bills, you're done. If private foreigners pop up on the bills, do a little investigation. But what could be compromised? Either the money is traceable to terrorist front groups or it isn't.

2. This is not defamation. Stimson said the firms are representing detainees. They are. Truth is not defamatory.

3. I agree that there should be investigation.
1.15.2007 10:15pm
JEBTex:
rfg,

You wrote, "I do wish that we would find a different manner of dealing with these types of situations. Although our enemies (and we do have them) may well behave in barbarous ways, don't we have to behave in better ways?"

We do behave in better ways. When they seize an American, they behead him. When we seize a Yemeni, we feed and clothe, et al., him indefinitely.
1.15.2007 10:23pm
Kovarsky (mail):
Justice Stevens,

The potentially defamatory remark is that the firms are being paid with terrorist money, not that they are representing detainees.

The truth of the proposition involving only representation is not a defense.

Lee
1.15.2007 10:25pm
Kovarsky (mail):
Excuse me, the potentially defamatory statement is the fact of investigations, not of whether there is terrorist money.
1.15.2007 10:32pm
Robert Jackson (mail):
Kovarsky Lee,

I am uncertain what your argument is. The fact that there should be investigations is defamation? Or the fact that terrorists finance front organizations is defamation? I do not understand your definition of defamation. But I do remember that about a year or so ago you defamed Justice Thomas on here by saying he couldn't read or some such nonsense. Or am I mistaken?
1.15.2007 10:37pm
A.S.:
But no-one ever told us who it is we are fighting. Let's ask A.S.: who do we have to defeat in order for this war to be over? Please define "the terrorists".


It's defined in the AUMF. Al Qaeda and the Taliban.
1.15.2007 10:44pm
A.S.:
Some people would think that a tribunal which could, as I stated, result in one's lifetime incarceration, was "judicial process" by any sane definition; but as I predicted, A.S. may not agree.

Some would call it military action.
1.15.2007 10:48pm
Truth Seeker:
Anderson:
for the duration of the conflict
Justice O'Connor's glib "centrism" aside, we don't seem to be working very hard to end the conflict in Afghanistan, do we?
Are we allowed to hold these people until there's no more Taliban?


Can it be any more obvious that some on the left in this country just simply support the terrorists? They're worrying how long we'll hold those poor dears who merely want to end western civilization and install sharia law! We held the Germans prisoners until there was no Nazi party in Germany. That's a good example to follow.

I propose we hold them until we get a declaration of surrender by someone representing Muslin fanaticism, or they die in custody. Can't find someone who represnts them? Oh, well, should have thought of that before becoming terrorists, shouldn't they have?
1.15.2007 10:53pm
Mark Field (mail):

It's defined in the AUMF. Al Qaeda and the Taliban.


That's NOT the definition in the AUMF. The definition in the AUMF authorizes force against "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". What's at issue here is the failure of the Administration to establish that the detainees actually fall into one of these categories.
1.15.2007 10:54pm
buddy (mail):
I am not educated in the law, at all. Perhaps someone here who has a J.D. and also speaks plain English can answer something for me? I will lay out my understanding in simple layman's terms:

1. Over 2,000 people died on 9/11 in an incident where:
a) Islamic foreign nationals turned commercial airliners into missiles.
b) this was done utilizing funds from believers in Islam from throughout the world.
c) the competencies, technologies, training &support systems for this act were commingled and supported, if not in some part directed, by nation states within the Islamic world.
d) Taking 9/11 as a starting date, thousands of attacks against civilians have been committed in the name of Islam, perhaps more than 7,000 of them, aided and abetted by the many of same actors:
http://www.thereligionofpeace.com/

e) In stark contrast to the West, in Islam religion and state are mixed, if not identical: sharia IS Islamic law for a number of countries.

2. So. We have a war, but no declared nation state with whom to wage it. Islam, per se, is not a belligerent and has millions of adherents who will attest to that fact. Yet an act of war was committed, the USA responded first in Afghanistan, and then in Iraq, but combatants arrive there from many, many countries to try their hand at killing Americans... but no nation state will declare war even while imams, hundreds of them, thunder for war from within the borders of many nations, including the United States and Great Britain.

3. If there is not a war, then all legal arguments above seem germane in seeking a best course of action for our country.

4. But I would suggest Cicero has it right: ilent leges inter arma. (That's the end of my high school Latin, but not of my argument.)

Perhaps US law is a tool too elegant - too light - to fill the breach in the dam of US security. I don't believe that civil law adequately addresses the issues when millions of non-Americans are actively seeking my death and are organized around an idea rather than a political entity. I'm a simple guy. If I had to choose between the US Marines or the ABA to protect my life, liberty and property? My choice is obvious. I assume your answer would be the same, save that your estimation of the danger varies from mine.

Bottom line, you aren't the guys for the job. OJ walked. America cannot afford to watch the Osamas of this world do the same thing.

PS - Quoting about lawyers is like quoting the Bible in that you can make almost any point you wish. But I like Thomas Jefferson on this one:

“Were we to act but in cases where no contrary opinion of a lawyer can be had, we should never act”
1.15.2007 10:55pm
Mark Field (mail):

Can it be any more obvious that some on the left in this country just simply support the terrorists?


Yet another engaging "substantive argument". Profanity free, though.
1.15.2007 10:56pm
Kovarsky (mail):
Robert Jackson,

On the Thomas issue, you have me confused someone else. Not only did I not say that about Thomas, I am prone to his defense. There was someone that I believe got kicked off the site in a discussion about Justice Thomas, but I certainly never said anything approaching that. But don't worry about it.

As for "you are not understanding my argument about what should be investigated is defamation," I think you're not following the comment thread. Nikki at 6:34 said that if there was no investigation, would the fact that Stimson hinted at one be defamatory.

Justice stevens responded by saying "2. This is not defamation. Stimson said the firms are representing detainees. They are. Truth is not defamatory." My response was to him - he is treating the proposition for which truth would be a defense as the proposition "these firms are representing detainees." but Nikki's email makes clear that the potentially damaging statement is not that "the firms are representing the detainees," but the suggestion that there is an ongoing investigation into that representation.

i'm sorry if that was not clear, although you complement what seems to be a healthy animus towards me with an uncomfortable dash of stalking (my first name - which you have put last - does not appear in my screen name; you obviously got it from somewhere else). if you were capable of that level of research, i'm quite sure you can find that i didn't make that remark about thomas.
1.15.2007 10:57pm
A.S.:
The definition in the AUMF authorizes force against "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons".

Al Qaeda and the Taliban meet that definition.

What's at issue here is the failure of the Administration to establish that the detainees actually fall into one of these categories.

Accordingly, so long as the detainees are affiliated with al Qaeda or the Taliban, they are enemy combatants.
1.15.2007 11:07pm
Robert Jackson (mail):
Lee Kovarsky,

I did not conduct any research. You sign your 10:25 pm post above with your first name. I had no idea until now that Lee was your first name and I figured from the confused wording of your posts that you were an immigrant whose first name is Kovarsky and whose last name is Lee.

I do not recall exactly what happened involving you and whatever you said about Justice Thomas, but I seem to be correct that you are in fact that person. If you say you did not insult Justice Thomas then I take you at your word, but from my recollection, you are being a bit hypocritical in attacking Stimson for his public comments and even more so for implying I am stalking you for reading your 10:25 pm post above.

As for Nikki's comments, Nikki said "if" there was an investigation. Justice Stevens said there "should be" an investigation. Stimson never said there was or should be an investigation. So where is the defamation again?
1.15.2007 11:07pm
Kovarsky (mail):
Robert,

I had no idea until now that Lee was your first name and I figured from the confused wording of your posts that you were an immigrant whose first name is Kovarsky and whose last name is Lee.

um, ok.

Here is what Nikki said:

Something I haven't seen anyone else raise: if there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it? And if there is no such investigation, did he come rather close to defamation? (Given that he didn't actually name any firms, as I recall his comments.)

you see? "And IF there is no such investigation [i.e. if Stimson was not telling the truth in suggesting that there was], did he come rather close to defamation [in falsely indicating otherwise]." if it's not clear now, it's not going to get that way. the potentially defamatory remark is not that there "should have been" an investigation, it's that there "was" one.

As for the Thomas remarks, I just don't know what to tell you; I can't help what you remember. The only thing you could be thinking of is a thread where we discussed how Thomas explained why he doesn't talk during oral argument. I believe at some point I stated that I'd read an interview where thomas explained that when he was a teenager he spoke in a dialect (a pidgin) that made him comparatively uncomfortable talking in front of groups of people. i think someone flipped out on me, ask me why i didn't just call him a racial epithet, etc. etc. of course every word i said was true (the washington post did the story, i believe, in Dec. 2000), and i wasn't saying thomas couldn't read. i was explaining his explanation for why he wasn't over eager to talk in groups. i believe orin did the thread and took the exchange down. i don't really understand why you've pursued this; i've obviously put a lot more effort into reconstructing what you think i may have said than you actually put into thinking it.
1.15.2007 11:23pm
Bob from Ohio (mail):
Stimson stepped on the toes of the legal establishment. So, the academic side of the legal establishment rushes to defend the elite law firms. Big surprise.

Despite heroic efforts, no one has yet to id a rule Stimson violated. Those who bring up Rule 8.4 on these threads generally admit that it really does not apply. Stimson violated the "spirit" of the rule. Close enough, I think, to take away Stimson's ability to be a lawyer. Spiritual violations of punative government rules count just as much as actual violations.
1.15.2007 11:24pm
David Maquera (mail) (www):
If the detainees are not subject to the Geneva Convention, then why doesn't the government just line them up and execute them?
1.15.2007 11:28pm
Robert Jackson (mail):
Lee Kovarsky,

The problem with your reasoning starts with your transliteration of the text. Nikki says, "If there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it?" Nikki's comment does not suggest that Stimson indicated there was an investigation; Nikki's comment accepts for the sake of argument that there is an investigation and wonders whether Stimson's comments would obstruct it. Basic logic teaches that an "if, then" is not an factual assertion of the antecedent. I have no idea where Nikki got the idea that there might be an investigation and, whatever your name is, neither do you.

Worse than merely misunderstanding Nikki's comment, you then change its literal text. Nikki says, "If there is in fact an investigation..." whereas you say "IF there is no such investigation". Since you are prone to remove the "ifs" from if-clauses, let's compare the following:

1. If there is in fact an investigation
2. IF there is no such investigation

Even if Nikki were making an assertion that there is an investigation, that is not logically equivalent to the assertion that there is no investigation. So your argument does not follow from Nikki's.

Let's now look to the facts, which you have ignored. At no point does Stimson indicate that there is an investigation. Nor does he suggest that there should be one. So the assertion you have snuck into the parenthticals "[i.e. if Stimson was not telling the truth in suggesting that there was]," has no factual basis whatsoever.

You have simply made up fiction to slander Cully Stimson.

As for the Justice Thomas comments, I already said I took you at your word. If you feel guilty about the issue, that's your own affair, but I will note that I have heard Justice Thomas deliver a speech before and he speaks English just fine. I mean, really. I can imagine why Orin took your comments down.
1.15.2007 11:41pm
Kovarsky (mail):
Robert,

(1) Orin didn't take the exchange down because my comments were offensive. I know a number of people that have worked with Justice Thomas personally. I was explaining why, and Justice Thomas has himself said this, he is not an active questioner at oral argument. The punchline of the story, as he tells is, is something to the effect of "I guess I just got used to listening." I actually admire his writing and public speaking a great deal. I can't link the archived washington post content, but feel free to google the story, you'll see it everywhere.

(2) I'm not trying to slander cully stimson. You're priceless; I don't even know what you're talking about. I was clarifying what Nikki said. A statement that is, by the way, clear as day - if you don't think the following statement contemplates the fact of the investigation rather than the fact of the representation, then we are just about done:

there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it? And if there is no such investigation, did he come rather close to defamation? (Given that he didn't actually name any firms, as I recall his comments.)
1.15.2007 11:56pm
PhillyLawyer (mail):
This thread is missing what IMHO is the interesting philosophical issue here. Presume for the purposes of argument that any hearing to be held for the Gitmo detainees are not criminal trials, but rather perfunctory exercises to confirm that initial classifications of the relevant individuals as an enemy combatants were not unreasonable. No right to representation by counsel, no trial by a jury of your peers, no concern about heresay evidence, no constitutional rights, etc. Everyone on this thread is reflexively presuming a criminal context, such that Stimson's comments would be wildly inappropriate. But what if this is more analogous to a parent disciplining his or her child (let's say grounded for a week for lying about having done something). Would any of us say "STOP," you can't punish that child until a hearing before an impartial judge at which the child is represented by counsel, has the right to cross examine witnesses, etc.? Of course not. Importing all of the relevant criminal procedural protections into that context is simply silly. Yet aren't we all doing something similar here? If you truly believe (as Stimson apparently does) that these terrorists are beyond the pale, and not entitled to any constitutional rights, because fundamentally we are fighting a war, not prosecuting criminals, then perhaps his comments are not as outrageous we are all suggesting. Regardless of what we all might want the law to provide, my sense is that legally Stimson's analysis of whether the Gitmo hearings are criminal in nature is accurate.
1.16.2007 12:02am
Robert Jackson (mail):

- if you don't think the following statement contemplates the fact of the investigation rather than the fact of the representation



The statement is preceded by an "if" and there is no indication that Cully Stimson is the source of Nikki's belief that there may be an investigation. Again, where is the defamation in Cully Stimson's statements?

As unaltered by Lee Kovarsky:

(if there is in fact an investigation into whether some of these firms are being paid with terrorist money, did Stimson compromise it?)

On the Justice Thomas issue, I have repeatedly said I took you at your word. I meant that sincerely. Though I take you at your word, I cannot imagine why Orin would take down perfectly innocent comments and I can't check whether Orin took down your comments for their offensiveness because the thread no longer exists. But I take you at your word.
1.16.2007 12:08am
Truth Seeker:
If the detainees are not subject to the Geneva Convention, then why doesn't the government just line them up and execute them?

Because this isn't the same government that handled WWII, it's a compassionate, sissified one that thinks it can win this thing with one hand tied behind its back. As Kerry said, if only he could just sit down and talk with Osama, they'd both be singing Kumbaya and all would be well with the world...
1.16.2007 12:13am
Robert Jackson (mail):

And 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.

It's not clear, is it? Some will maintain that they're doing it out of the goodness of their heart _ that they're doing it pro bono, and I suspect they are. Others are receiving monies from who knows where and I'd be curious to have them explain that.




Nowhere in these comments do I see anything about an investigation.
1.16.2007 12:14am
Kovarsky (mail):
Bob,

I DON'T HAVE ANY OPINION ON WHETHER STIMSON COMMITTED DEFAMATION OR NOT. Get it! I'm just saying that Nikki's remark obviously treats the the potentially defamatory as an "investigation," rather than the "representation."

As for Thomas, from the December 14 2000 issue of The New York Times:

"When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it Gullah now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at your age, I was self-conscious, like we all are... So I...just started developing the habit of listening."

Orin took down the remarks of the other person was doing basically what you are doing, but a little more explicitly. That is, intentionally casting my reporting of Thomas's statements as some sort of guilt-motivated assault on his literacy.
1.16.2007 12:21am
Harry Eagar (mail):
'Are we allowed to hold these people until there's no more Taliban?'

Depends. How much do you value your throat?
1.16.2007 12:21am
Robert Jackson (mail):

I DON'T HAVE ANY OPINION ON WHETHER STIMSON COMMITTED DEFAMATION OR NOT.



Lee,

Again, I said I take you on your word as to the Justice Thomas comments, given that I have no means of confirming or denying what you say and I frankly don't care. The only reason I brought it up is that you seemed a bit of a hypocrite to condemn Stimson for making slightly careless public comments when you've obviously done the same. You could at least have some sympathy.

I thought you had an opinion on whether Stimson committed defamation is because you said "the potentially defamatory statement is the fact of investigations, not of whether there is terrorist money." That seems like an opinion on whether Stimson committed defamation. The problem with that statement is that Stimson never said anything about any investigations, so he never made the "potentially defamatory" statement you appear to claim he did.

I don't see how that is intentionally distorting anything; I'm just reading your posts in a straight-forward manner.
1.16.2007 12:30am
Colin (mail):
Robert Jackson,

I don't believe that you've misunderstood Kovarsky; it looks like you're just trying to provoke him by childishly misinterpreting what he said regarding the original statement. Nikki theorized that Stimson's statements regarding illicit funding might be defamatory if there were not truth to them, and that if there were truth to them, he might have compromised an investigation. I doubt that's as confusing as you pretend. You might be amusing yourself, but I doubt that anyone else is as impressed.
1.16.2007 12:40am
Robert Jackson (mail):
Nikki theorized that Stimson's statements regarding illicit funding might be defamatory if there were not truth to them, and that if there were truth to them, he might have compromised an investigation.

I understand Nikki's hypothetical. What I honestly do not understand is why anyone would believe Stimson actually made statements regarding an investigation into illicit funding. I do not understand that interpretation of his words. Stimson says he is curious as to where the money came from. How does that imply the fact of an ongoing investigation??????
1.16.2007 12:45am
Steve:
Kovarsky: You are easily trolled.
1.16.2007 12:45am
Cornellian (mail):
If I had to choose between the US Marines or the ABA to protect my life, liberty and property? My choice is obvious. I assume your answer would be the same, save that your estimation of the danger varies from mine.

And which would you choose if you were the one being detained, indefinitely and without charge? You mention that you're not a lawyer, so I suggest you Google "Korematsu" and read up on the last time the executive branch claimed unlimited authority to detain anyone it liked on grounds of national security.

I don't think the ordinary criminal justice system is the way to go, partly because wartime combatants have never been dealt with in that fashion, and partly because it's not a crime to be at war with the U.S.. We didn't sentence all Japanese and German soldiers to prison at the end of WW2. However, that's a long way from saying that one must grant unlimited, unreviewable discretion to the executive branch to detain anyone, indefinitely and without charge. There's a reason why the founders thought Habeas Corpus important enough to put into the Constitution even before there was a Bill of Rights.
1.16.2007 1:53am
Nikki:
Oof. Didn't expect my comment to cause this much of a stir. Since it did, apparently some clarification is in order, especially since some of the comments suggest what I was thinking isn't as clear as I thought.

Anyway, as to where I thought there might have been an investigation: it appears to have been partly mis-recollection of Stimson's remarks as they were excerpted in the original post about the topic on this site and partly common sense combined with assumption (that if Stimson has reason to believe that some firms are taking terrorist money to defend GTMO detainees, it's probably because there was or is an investigation, and not because they said, "Hey Cully, we're bankrolled by terrorists."). As someone noted in an earlier post, the transfer of money from terrorists is not straightforward and tends to involve multiple conduits and the like. Determining that a firm was being paid with terrorist money would almost certainly require an investigation.

The original remarks that made me think there might have been an investigation were probably these: "... others are receiving monies from who knows where, and I'd be curious to have them explain that ..." But to some extent, I probably conflated what was said by Stimson and what was speculated about in the comments on the various posts about some of the firms taking terrorist money.

Bear in mind that I am defining terrorist money as "money from individuals or groups who support or are actively engaged in terrorism", not merely "money from the families of those detained at GTMO which they earned through some completely honest, non-terrorist-tainted pursuit." (Though I suspect there are those who see no distinction, or who would blur it; and at least one law form, Shearman and Sterling, donated money they received which apparently fell into the former category.) As I recall, trying to detect the sources of funding for terrorism has been a major aspect of the counter-terror effort, if not one that's gotten a significant amount of press.

I agree that no actual defamation, in the legal sense, occurred; you'll note that I asked if Stimson came rather close to it, not if he committed it. In my view, the defamatory statement would be "You're taking terrorist money," not "You're defending detainees." (Though of course it is quite clear that some find the latter to be just as bad as the former.)

Incidentally, if the money that some firms are apparently receiving comes from "who knows where", maybe there should be an investigation, if there isn't or wasn't one. :/ Let us leave no stone unturned in the war on terror. Seriously - if there's reason to wonder about the source of some monies, aren't there large, fairly well-funded agencies we pay to do that wondering and follow up on it?
1.16.2007 7:45am
AnonLawyer (mail):
A few small points:

A. Gitmo lawyers have to have security clearances to meet with clients or see classified evidence. This means that all are investigated. All have also had to reveal compensation arrangements, if any, with anyone who might be affiliated with a terrorist organization. There's no investigation of funding, and Mr. Stimson actually knows the exact answer to the question he says in mysterious.

B. Mr. Stimson strongly implied that the firms, and he mentioned several including mine, are representing people who were directly involved with 9/11. As to a great many prisoners, including those represented by my firm, this is an incorrect statement. Whether it's defamation or puffery, you can judge.

C. The identity of the firms is a matter of public record, and the idea that some journalist would file a FOIA request -- rather than simply look them up on PACER -- is unbelievable. The FOIA request has a DOD email address on it. A reasonable person could perhaps think that the whole FOIA exercise was designed to be an excuse for Mr. Stimson to raise the issue (and indeed in the radio interview, he raises it unbidden).

D. As one would expect, prisoners in Gitmo followed a wide variety of different paths to get there. Some were arrested in Pakistan by Pakistani police. Some in Bosnia by Bosnian police (and ordered released by Bosnian courts). Some in Thailand and others in Gambia. The Supreme Court's decision in Hamdi has nothing to say about such people, and indeed, the idea that none of these people can or should be tried in a criminal court has never been satisfactorily explained.

E. Even those picked up in Afghanistan were nearly always delivered to US custody already captive. This is one thing that makes WWII a totally inapt analogy: rather than uniformed fighters surrendering to US forces, we have people indistinguishable from civilians turned over by bounty hunters for cash. Although there's no reason to believe that all of them are civilians, there's also no reason to presume the "regularity" of the conduct of foreign bounty hunters (who get the same money whether the guy is a shepherd or a fighter). The Parhat petition is the DC Circuit is also a good example: people were labelled enemy combatants, although they'd never been in arms against the US or any of its allies, but as part of a deal to avoid a Chinese veto of the Security Council resolution on Iraq. People who think this kind of thing is OK, much less unreviewable, are showing themselves to fit solidly in the Authoritarian camp, and should stop calling themselves Conservative.

F. The US is not appointing counsel for these prisoners, either in connection with their CSRT proceedings, their ARB proceedings, or whatever DC Circuit review might follow from their CSRT proceeding. Inasmuch as CSRTs are now subject to DC Circuit review, but the review is limited (based on an unjustified assumption about the efficacy of the CSRTs), this is a serious failure on the part of the government: a failure being remedied by the private lawyers.

G. Mr. Stimson's job is neither politics nor hardball. He works for all of us, and his job is overseeing a segment of US policy. If he wants to play hardball, or get involved in politics, he ought to get off the taxpayer's dime. (Yes, he's not alone in this, and yes, we've seen it in prior administrations. Neither makes it right).

H. Everyone can see that this 'war' will never end, if it's a war 'on terror.' Obviously, the ongoing Afghan civil war, into which the US intervened (justifiably, if I have to add this!) in October 2001, can end, with the re-integration of Taliban and/or its supporters into the Afghan polity. (This obviously has to be negotiated.) The US is not willing to commit, though, that it will release prisoners at the end of that war, but instead wants to hold them as if they were criminals with life sentences. By using the legal fiction of a never-ending war.

I. The government's policy here, as in so many areas, is thoroughly wrong-headed, and this is what Mr. Stimson should be most embarrassed about. Instead of arguing about how little rights we are absolutely required to accord these captives, we should have been taking the opportunity to demonstrate the merits of our superior (I think it is) system. We could be a beacon instead of a laughingstock.
1.16.2007 9:02am
wm13:
How nice it would be if 50 law school deans--or some liberal law professors--had denounced another prosecutor, one in North Carolina, when he criticized criminal suspects for retaining lawyers. But they didn't. It is hard for this Boalt graduate to view law professors, in the mass, as other than partisan hacks.

And let us not get all weepy about the pro bono commitments of big law firms, like mine. The overwhelming majority of criminal defendants are represented by poorly-paid public defenders with second-class academic credentials, not by HLS grads from K&E.
1.16.2007 9:10am
Thorley Winston (mail) (www):
How nice it would be if 50 law school deans--or some liberal law professors--had denounced another prosecutor, one in North Carolina, when he criticized criminal suspects for retaining lawyers. But they didn't. It is hard for this Boalt graduate to view law professors, in the mass, as other than partisan hacks.


I’m curious since the principle that the law school deans purport to defend is that attorneys should be able to represent clients which others might view as unpopular without being criticized for it– how many of these same law school deans spoke out against the treatment of nominee John Roberts when who he represented in private practice was used against him during his hearing?
1.16.2007 10:20am
Bart (mail):
Allow me to play devil's advocate for a moment.

As a defense counsel, I am well aware that lawyers have a general ethical duty to represent even the most loathsome of clients to ensure they get a fair trial. However, lawyers also have an ethical duty to decline to bring frivolous cases before the court which have no basis in the law.

The attorneys at issue are arguably bringing frivolous cases with no basis in law by arguing that alien enemy combatants have the rights of a criminal defendant under our Constitution.

Habeas corpus has never been extended to alien enemy combatants under English or American common law and thus such rights could not have been incorporated into the Constitution by implication through the Suspension Clause of Article I. Indeed, at least one British court prior to the Revolution held "[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant habeas corpus to remove prisoners of war." Rex v. Schiever, 96 Eng. Rep. 1249 (K.B. 1759).

Likewise, the constitutional rights extended to domestic criminal defendants such as the right to remain silent, the right to choose counsel, the presumption of innocence and the right to a jury trial have not been extended to alien enemy combatants.

Rather, the Constitution expressly grants Congress (and implicitly the President at CiC in the absence of congressional action) the power to set rules for Captures. Therefore, if Congress and the President have the power to set the rules, such rules would by definition not be set in the Constitution itself.

Assuming then that these attorneys are unethically bringing frivolous claims before the Court, is it then unethical to call for companies and law firms to stop supporting such claims?
1.16.2007 10:37am
Duncan Frissell (mail):
can be held for the rest of his life without trial,

No. Just for the rest of the war. As soon as the peace treaty is signed, they will be repatriated.
1.16.2007 10:55am
Duncan Frissell (mail):
If the war is being fought, in part, by litigation (as Eugene has suggested might be a possible strategy) then it is perfectly appropriate for a government official to call attention to the particular enemy tactic.

Certainly, the Commies used left-wing agitation in the US (including legal agitation) as a tactic in the Cold War. They lost though. The Calaphists will probably lose too.
1.16.2007 11:02am
Kovarsky (mail):
wm13 and Thorley,

neither example (the Duke DA nor the Roberts hearings) is an instance of the executive overreach that is the target of the deans' letter. you might argue that in isolation these events are of equal gravity (you'd be wrong), but obviously the tenor of the deans' response is driven by Stimson's participation in a recurring theme for this administration - abusing its executive authority.

the "partisan hacks" comment fits into the "reveals more about the speaker than the subject" category, and i'm not sure why you think the duke case should inspire the same reaction. (1) the duke players have well-financed counsel; (2) it's decision to sue by a state officer, not activity of the united states department of defense; (3) the duke situation involved privileged factual material that would have made any analagous action by the deans inappropriate; (4) for some time it has appeared that the Duke investigation would run its course without the dean's involvement.

as for the roberts hearing, i'm not sure i even understand the connection. nomination hearings are contexts where this sort of discussion is expressly contemplated. it's seedy, but it's certainly not unethical. nobody in that context was promoting his or her or its position as a litigant in any way analogous to stimson? please explain in more detail. that is, unless the analogy is just that "roberts was mistreated with certain questions about big business," in which case i think the vast majority of the legal community is going to find a hard time feeling that sympathetic to your comparison.
1.16.2007 11:16am
Kovarsky (mail):
Duncan,

What are you saying? That there's some secret network of terrorists that's pulling the levers at places like Sullivan and Cromwell and Wilmer Cutler Pickering, working in concert with Seth Waxman and the like to free their men in Guantanamo?

Do you really believe that? If not, what are you saying?
1.16.2007 11:20am
Kovarsky (mail):
Bart,

Habeas corpus has never been extended to alien enemy combatants under English or American common law and thus such rights could not have been incorporated into the Constitution by implication through the Suspension Clause of Article I. Indeed, at least one British court prior to the Revolution held "[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant habeas corpus to remove prisoners of war." Rex v. Schiever, 96 Eng. Rep. 1249 (K.B. 1759).

So? Lots of rights that are not part of the writ's preconstitutional common law history are part of our modern writ jurisprudence. That has been accomplished by statute (e.g. 1867 Act extending the writ's availability to state prisoners). It has also been done by judicial decree (recognizing that the writ applies to punishment imposed pursuant to unconstitutional statutes, preserving independent review of non-procedural mistakes of state courts). The fact that there is a preconstitutional case about non-applicability to aliens just doesn't matter a lick.
1.16.2007 11:28am
Mark Field (mail):

It is hard for this Boalt graduate to view law professors, in the mass, as other than partisan hacks.


John Yoo and Phil Johnson come to mind?
1.16.2007 11:48am
Bart (mail):
Kovarsky:

Bart: Habeas corpus has never been extended to alien enemy combatants under English or American common law and thus such rights could not have been incorporated into the Constitution by implication through the Suspension Clause of Article I. Indeed, at least one British court prior to the Revolution held "[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant habeas corpus to remove prisoners of war." Rex v. Schiever, 96 Eng. Rep. 1249 (K.B. 1759).

So? Lots of rights that are not part of the writ's preconstitutional common law history are part of our modern writ jurisprudence. That has been accomplished by statute (e.g. 1867 Act extending the writ's availability to state prisoners).


To start, I am speaking of the implied constitutional right to habeas corpus created by the Suspension Clause. Prior to the Constitution, the writ was based on a common law right. Therefore, the right incorporated into the Constitution would have been the common law right in existence at that time.

As I noted in the post above, Article I grants Congress the power to set rules for Captures. Thus, it may extend habeas corpus rights to captured alien enemy combatants if it sees fit. However, this is a statutory and not a constitutional right.

Congress has expressly barred alien enemy combatants from using the writ to challenge their detentions so the attorneys at issue are arguing that alien enemy combatants have a constitutional habeas right which Congress did not properly suspend under the Suspension Clause. This is a frivolous claim.

It has also been done by judicial decree (recognizing that the writ applies to punishment imposed pursuant to unconstitutional statutes, preserving independent review of non-procedural mistakes of state courts).

The courts would be extralegally rewriting the Constitution if it decreed that some unwritten penumbra in the Constitution granted alien enemy combatants habeas rights to contest their wartime detentions. As discussed above, no such right was in existence to be incorporated into the Constitution. Moreover, the Constitution expressly grants Congress the power to set rules for captures and has been held by implication and necessity to grant the President as CiC the power to set rule for captures when the Congress has not acted. No where does the Constitution grant the Courts this right.
1.16.2007 12:40pm
Kovarsky (mail):
Bart,

To start, I am speaking of the implied constitutional right to habeas corpus created by the Suspension Clause. Prior to the Constitution, the writ was based on a common law right. Therefore, the right incorporated into the Constitution would have been the common law right in existence at that time.

I still don't see your point. No, habeas didn't extend to aliens at the time of the decision you're quoting. That doesn't say anything about what sorts of statutory applications of the writ Congres has created since then. The formal requirements for habeas eligibility are just that you are in custody in violation of the laws of the United States. That's in the statute, 28 usc 2241. Enemy combatants are later carved out of that jurisdiction, but the effects of that carve-out don't seem to relate to your point at all.

Congress (probably) has authority to strip the jurisdiction of federal courts to hear challenges from enemy combatants, but they don't have authority to strip the jurisdiction of federal courts to hear a challenge to the the propriety of the classification itself. That's, uh, what these people are challenging. No matter how the litigation on that point comes out, it's hardly frivolous.

You seem to think that the Government is justified because it's counter-acting "frivolous" claims, but those claims are only frivolous if you buy into the executive's particular view of executive power and statutory interpretation.

As I noted in the post above, Article I grants Congress the power to set rules for Captures. Thus, it may extend habeas corpus rights to captured alien enemy combatants if it sees fit. However, this is a statutory and not a constitutional right.

Congress has expressly barred alien enemy combatants from using the writ to challenge their detentions so the attorneys at issue are arguing that alien enemy combatants have a constitutional habeas right which Congress did not properly suspend under the Suspension Clause. This is a frivolous claim.

The courts would be extralegally rewriting the Constitution if it decreed that some unwritten penumbra in the Constitution granted alien enemy combatants habeas rights to contest their wartime detentions.

Yes, they would. But, (1) that's not the only argument the aliens in custody have; (2) that doesn't mean that can't challenge their classification as enemy combatants under the habeas statute. if the statute is interpreted to extinguish the right to challenge that classification, then it may run into problems.

The arguments are complicated, not frivolous. I'm not saying one is right or wrong (although I obviously have my opinions), but just that justifying the DoD request on the grounds that the Guantanamo litigation is "frivolous" begs the question.
1.16.2007 1:05pm
Kristian Holvoet (mail):
Has anyone else noticed that the double standard here where a lawyer answering a question formt he president on the Legal requirements of treatment of detainees is villified, boycotted, petetioned (by students and professors) against when trying to get a job a professor, yet we hear non-stop how anyone is expeteed to be able to obtain competent legal advice, no matter how reprehensible and that to punish firms that do so is totally unethical?
1.16.2007 1:28pm
James Dillon (mail):
Kristian,

Yeah, actually, if you'd read the comment thread, JEBTex and I had a long discussion about that, in which I argued, I believe rather persuasively, that there is no legitimate comparison between criticism of the government's detainee memos and and criticism of law firms representing Guantanamo detainees.
1.16.2007 1:31pm
Duncan Frissell (mail):
Does that include the left wingers that took a shot at the US embassy in Greece, the Taliban in Afghanistan, Al-Qaeda, Hamas, ETA, IRA etc.?

All the muslim on the list but not the Greek Commies, ETA, or the Irish.

Early in the war, George defined the enemy as terrorists with international scope. The localized terrorists (incluing the Tamil Tigers) don't qualify.
1.16.2007 1:46pm
Kristian (mail):
Ah, missed that. It can be hard slogging through some of the comments, as I am not a lawyer, and some of the ethical discussions make my head hurt.

I do not think the government should do anything to encourage retaliation against any ethical representation of the detainees (however, if one were to pull a Lynne Stewart, I would not shed any tears over prosecution).
1.16.2007 2:08pm
Bart (mail):
Kovarsky:

I still don't see your point. No, habeas didn't extend to aliens at the time of the decision you're quoting. That doesn't say anything about what sorts of statutory applications of the writ Congres has created since then.

Let me try again.

These attorneys are arguing that these alien enemy combatants enjoy a constitutional, not a statutory, habeas right.

There is no habeas right under statute. Since the Rasul decision where the Supremes interpreted (rewrote?) the habeas statute to apply to alien enemy combatants for the first time in history, Congress has enacted two acts which expressly state that alien enemy combatants may not use habeas corpus to challenge their detentions in US courts.

In turn, the attorneys at issue have argued that the Constitution guarantees alien enemy combatants the right to use habeas corpus to challenge their wartime detentions and the recently enacted legislation by Congress does not properly suspend this right under the Suspension Clause. For the reasons I set out above, the Constitution simply does not provide such a right to alien enemy combatants.

You seem to think that the Government is justified because it's counter-acting "frivolous" claims, but those claims are only frivolous if you buy into the executive's particular view of executive power and statutory interpretation.

Congress enacted the legislation stating that alien enemy combatants do not have habeas corpus rights to challenge their detentions as expressly provided for under Article I. This has nothing to do with the executive.

As I noted in the post above, Article I grants Congress the power to set rules for Captures. Thus, it may extend habeas corpus rights to captured alien enemy combatants if it sees fit. However, this is a statutory and not a constitutional right.

Bart: The courts would be extralegally rewriting the Constitution if it decreed that some unwritten penumbra in the Constitution granted alien enemy combatants habeas rights to contest their wartime detentions.

Yes, they would. But, (1) that's not the only argument the aliens in custody have; (2) that doesn't mean that can't challenge their classification as enemy combatants under the habeas statute. if the statute is interpreted to extinguish the right to challenge that classification, then it may run into problems.


You are confusing the process (habeas corpus) with the argument to be brought under that process (the detainee is not an alien enemy combatant). I am pointing out that alien enemy combatants clearly have no constitutional right to the habeas corpus process. Thus, the argument the lawyers at issue would make if granted habeas review is irrelevant.

The arguments are complicated, not frivolous.

No, the question of standing to use the habeas corps right is straight forward and the law leaves no doubt. The attorneys are hoping that they will find a court to extralegally rewrite the law.

If you disagree, show me the constitutional or statutory language providing habeas corps rights to alien enemy combatants. Show me the case law holding that some provision of the Constitution provides such rights.

This is not a new issue. The United States has been detaining alien enemy combatants for the duration of hostilities in every single one of our wars and no Congress, President or Court has granted them habeas corpus rights under the Constitution.

These arguments are frivolous.
1.16.2007 3:22pm
Elliot123 (mail):
I'm reminded of William Buckley's remark that he would rather be governed by the first 2,000 names in the Boston phone book than the faculty of Harvard.

I'd say the same applies to those fifty law school deans.
1.16.2007 3:23pm
CharleyCarp (mail):
A. In saying that the arguments are frivolous, Bart assumes the conclusion, that petitioners are properly held as alien enemy combatants. Petitioners, however, challenge their categorization as such. We can disagree about how this is going to come out at the next round at the Supreme Court, but if the government believed in Bart's position even halfway, it wouldn't be holding these prisoners in Guantanamo -- with high cost per prisoner, and high visibility -- but would have them in Leavenworth (or similar pre-existing facilities).

B. Mr. Frissell, everyone knows that there will be and can be no 'peace treaty' between the United States on the one hand and AQ and all similar organizations on the other. It's inherent in the nature of the 'war.' Instead, the 'war' will 'end' when the US government no longer finds the metaphor politically useful.

C. WRT the shepherds, schmoes, and wannabes in Gitmo, that point should have been reached in early 2005, at the latest. Even the President was going around telling European audiences that he wanted to close the prison last Spring; whether he was actually stating his intentions at the time, he was saying it for a political purpose.
1.17.2007 8:02am
Bart (mail):
CharleyCarp:

A. In saying that the arguments are frivolous, Bart assumes the conclusion, that petitioners are properly held as alien enemy combatants. Petitioners, however, challenge their categorization as such.

One more time...

What is frivolous are these attorneys' claims to the courts concerning venue and process. I have not commented on the substantive argument concerning the status of any particular capture.

As to venue, the executive and not the judiciary determines the status of captures during a war.

As to process, the Constitution does not provide alien enemy combatants with habeas corpus or any other right granted civilian criminal defendants in the United States.

This law is well setled. Arguments to the contrary are simply frivolous.
1.17.2007 9:55am
Colin (mail):
As to process, the Constitution does not provide alien enemy combatants with habeas corpus or any other right granted civilian criminal defendants in the United States. This law is well setled. Arguments to the contrary are simply frivolous.

As CharleyCarp says, this is assuming your conclusion. The "enemy combatant" classification is one of the primary foci of the challenges! And even if the law were as clear as you say, it seems clear that there is a procedural value in pursuing legal challenges to a process that would allow the administration to seize any noncitizen, detain them, and bar them from any non-executive review.
1.17.2007 3:14pm
AntonK (mail):

In wars, combatants are killed; luckier ones are taken prisoner and held — not as punishment but to prevent their return to battle. If the combatants are honorable soldiers they are entitled to be regarded as Prisoners of War, with all the rights and privileges that status implies. But the combatants sent to Guantánamo are those who have violated the most basic laws of war, in particular by targeting civilians and by hiding among civilians.

Nevertheless — and despite relentless allegations to the contrary — the evidence indicates they are treated humanely, even leniently. "Not a single case of torture or inhumane treatment has ever been substantiated,” Rear Admiral Harry B. Harris Jr., the commander at Guantánamo, told me and other visiting journalists recently. “We are the most transparent detention facility in the world."

Representatives from the International Committee of the Red Cross visit detainees freely and regularly, as do attorneys -– more than 900 of them. Thousands of letters are sent and received. This is what Amnesty defines as being “wrapped in secrecy”?

Detainees can refuse interrogation. Those willing to answer questions sit in easy chairs, drink tea and may watch television during the sessions. Not only is torture prohibited: At Guantánamo there can be no coercion of any kind and there is no solitary confinement.

Every detainee’s case is reviewed and those deemed unlikely to return to combat operations are released. To date, 315 of 770 detainees have been sent on their way. Several dozen are known to have returned to the fight against Americans in Afghanistan and elsewhere. Included in those ranks is a detainee who had been provided with an artificial leg and extensive physical therapy to help him use it.

Detainees get three square meals a day — religiously appropriate food blessed by an imam. They receive the same medical and dental care as American military officers.

Admiral Harris said his mission is to provide “safe and humane care and custody” to the detainees. He is under no illusion about the detainees’ mission: They have organized themselves into a “fully tricked-out” al Qaeda cell. Threats against Guantánamo guards are frequent. So are attacks with human waste and weapons made from such objects as plumbing fixtures and the blades of fans.

No one likes Guantánamo — not those who run the facility and certainly not the American taxpayers who shell out millions of dollars a year to keep it functioning. But among the most recent arrivals are top al Qaeda operatives Khalid Sheikh Mohammed and Ramzi Binalshibh.

Such mass murderers should not be let loose on the world – not even in response to Amnesty International’s windsurfer flotillas, video contests and “Make Some Noise goodie bags.”

Read the whole thing.
1.19.2007 8:05pm