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.