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Charles Fried on Stimson:

Harvard Law Professor and former U.S. solicitor general Charles Fried has an op-ed in today's Wall Street Journal (available here) on Cully Stimson's comments. Here's a taste:

Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work. . . .

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation. . . .

All that can be said in explanation, if not mitigation, of Mr. Stimson's egregious statements is that he may have been led on by the extravagant rhetoric of ideologues at the other end of the spectrum, who regularly inveigh against law firms which make their living by defending corporate interests accused of abusing employees, consumers and the environment.

Read the whole thing.

Steve:
I've seen that last point argued in the comments here, but to be frank, I've read a great many anti-corporate screeds at places like Daily Kos without ever seeing so much of a mention of the Skaddens and O'Melvenys of the world. I'm sure there's been a case or two, but it seems like the vast majority of attacks against those who represent unpopular clients are aimed at criminal defense lawyers.
1.16.2007 1:10pm
Poncherello:
I think Fried's last point is valid, although it doesn't make Stimson's comments any more appropriate; both comments are, or would be, inappropriate.

That the Skaddens of the world are not often mentioned in the Daily Kos (I wouldn't know) may be because large corporate firms are not particularly well known among the general public, whereas many high profile criminal defense lawyers are (e.g., F. Lee Bailey, J. Cochran, et al). And, anti-corporate speak is generally directed at the entire corporate universe. Take for example, Moveon, whose website described Chief Justice Roberts, as a "right wing corporate lawyer."
1.16.2007 1:26pm
Jeff Shultz (mail):
I think that Stimson's comment boils down to: "These guys are using your money to defend your enemies. Who want to kill you. Do you think that's appropriate?"

I'd say it's a very good question.
1.16.2007 1:34pm
JosephSlater (mail):
That would have been nice, had Fried left out the last paragraph.

From Iraq to Stimson, whenever the Bush administration screws up, for some on the right, it must always be, somehow, the left's fault.
1.16.2007 1:36pm
nrein1 (mail):
Jeff, isn't the point of having lawyers to determine whether or not these people are our enemies? Besides which, so what? Lawyers defend murders, etc because that is what our society needs lawyers to do.
1.16.2007 1:40pm
Bpbatista (mail):
Disgusting — Fried implicitly compares the scum at Gitmo with courageous blacks during the civil rights era. Voluntarily taking on the Gitmo cases was an overt political act on behalf of our nations enemies in a time of war — like Ramsey Clark representing Saddam Hussein. These shysters should not be surprised when they get push back.
1.16.2007 1:41pm
David in NY (mail):
he may have been led on by the extravagant rhetoric of ideologues at the other end of the spectrum, who regularly inveigh against law firms which make their living by defending corporate interests accused of abusing employees, consumers and the environment.

Here's the typical false objectivity required in conservative, or even mainstream, media like the WSJ.

The claim is that unnamed leftist "idealogues" do the same thing Stimson did, and implicitly, that it's as bad as what Stimson did. Wrong on both counts. First, there have been no calls by leftists that corporate CEO's fire big firms that represent corporate malefactors; indeed, such a scenario is laughable. Second, the fact that a high government official, in a position to affect corporate contracting with the government, for example, does this is hardly equivalent to the same thing done by an unknown idealogue with no such position. It is ridiculous of Fried even to offer this fig leaf in mitigation of Stimson's actions.
1.16.2007 1:53pm
Truth Seeker:
We just need to keep in mind that constitutional criminal rights do not apply to enemy combatants or enemy participants during wartime. Anyone trying to extend extra rights to them is aiding the enemy during war and attempting to harm national security.
1.16.2007 1:57pm
Steve:
Voluntarily taking on the Gitmo cases was an overt political act on behalf of our nations enemies in a time of war — like Ramsey Clark representing Saddam Hussein. These shysters should not be surprised when they get push back.

Why would we settle for "push back"? Why not try them for treason and hang them? You give the impression that you don't really mean what you say.
1.16.2007 2:04pm
Jeek:
Oh, TS, many people in this country don't believe in outdated concepts like "enemies", "war", "national security", or even "nations".
1.16.2007 2:04pm
sk (mail):
Hmmm-
Corporate lawyers can do pro bono work for whomever they want. As an example, they can choose to do pro bono work for prisoners fighting against American soldiers, or they could do pro bono work for injured American soldiers who are having trouble getting their benefits (or American reservists who have trouble with their employers) for instance*. Corporate lawyers are making one choice rather than another, and we're all morally obligated to approve of that choice?

It sounds like corporate lawyers want to make political choices without having to pay the political consequences (surprise, surprise).

George Orwell wrote an essay in the 1930's arguing that pacifists were objectively (whether or not consciously) pro-fascist. It would be valuable reading, today.

Sk

*Similarly, during the civil rights era, corporate lawyers could have done pro bono work for civil rights activists, or they could have done pro bono work for the Ku Klux Klan. Not a morally or politically neutral choice.
1.16.2007 2:05pm
TRE:
The suggestion that terrorism suspects would be in danger of losing competent legal representation if not represented by corporate law firms seems unfounded to me.
1.16.2007 2:13pm
steven lubet (mail):

he may have been led on by the extravagant rhetoric of ideologues at the other end of the spectrum, who regularly inveigh against law firms which make their living by defending corporate interests accused of abusing employees, consumers and the environment.


The situations are far from comparable, of course, because Stimson was potentially the leading edge of a government sponsored economic blacklist, while the "extravagant rhetoric of [left-wing] ideologues was no more than, well, extravagant rhetoric.

Nonetheless, let this liberal be among the first to agree that condemnation-by-client is, and always has been, intellectually wrong and politically ineffective.
1.16.2007 2:27pm
frankcross (mail):
If we knew the people at Gitmo were terrorists committed to murdering Americans, I think big firms should decline their representation in favor of other needy defendants. But we don't know that.
It's convenient for kneejerk defenders to believe they are all guilty, but there is considerable reason for doubt. For example, the Seton Hall study of Army documents found only a small fraction were captured on the battlefield by US soldiers and most were turned over by others, such as Afghan warlords.

My question for those who defend Stimson: Do you think it inappropriate to defend individuals who are not terrorists but victims of misidentification or internal Afghani politics?
1.16.2007 2:30pm
Steve:
The suggestion that terrorism suspects would be in danger of losing competent legal representation if not represented by corporate law firms seems unfounded to me.

Personally, I think it's in everyone's interests for these suspects to be represented by major law firms, who have significant resources but also work within the established legal order, as opposed to leaving them to be represented by activist ideologue types like Lynne Stewart.
1.16.2007 2:34pm
Bpbatista (mail):
Steve,

If some pettifogger had marched into Washington's camp with a petition for a writ of habeas corpus for Major Andre, I suspect that he too would have met his maker at the end of a rope as a traitor — and rightly so. Such people are guilty of treason and should bear the consequences.
1.16.2007 2:35pm
Phil (mail):
I agree with sk
My experience has been that there is always plenty of pro bono work to be done and choosing to represent those detained at Gitmo is a decision to be evaluated like any other.
I work for the government now and everyday see unrepresented aliens in court. Why are the big firms not choosing these (definitely) poor (arguably) refugees over the gitmo detainees?
1.16.2007 2:37pm
JRL:

Why would we settle for "push back"? Why not try them for treason and hang them? You give the impression that you don't really mean what you say.

Agreed.
1.16.2007 2:40pm
Richard Riley (mail):
Big law firms don't get way out in front of their client base, politically (I say as a partner in one). The firms providing pro bono services to Gitmo prisoners and the like know that their clients, generally speaking, aren't uncomfortable with that. It is Stimson who, I'm afraid, is kidding himself. The officers of big companies, big financial houses, etc. are more liberal than he realizes, or at least than he let on in his interview - remember they went to college with the partners in the law firms in question.
1.16.2007 2:42pm
SP:
This would have resolved itself much more cleanly had we just shot them on sight.
1.16.2007 2:51pm
Ugh (mail):
This would have resolved itself much more cleanly had we just shot them on sight.

I, too, am in favor of shooting on sight, 10, 12 and 13 year old boys.
1.16.2007 3:01pm
Steve:
If some pettifogger had marched into Washington's camp with a petition for a writ of habeas corpus for Major Andre, I suspect that he too would have met his maker at the end of a rope as a traitor — and rightly so. Such people are guilty of treason and should bear the consequences.

I think we sent the wrong message when we allowed John Adams to represent the British soldiers involved in the Boston Massacre, instead of just burning him at the stake.
1.16.2007 3:06pm
Nate F (www):
Are there really people who think this way? Apparently, yes. By the way, to whomever made this ridiculous comparison a few lines up, this isn't comparable to pro bono work for the Klan, which had its own massive organization and financial resources.
1.16.2007 3:14pm
Mike Keenan:
"I think we sent the wrong message when we allowed John Adams to represent the British soldiers involved in the Boston Massacre, instead of just burning him at the stake."

Fair enough irony. But, do you think John Adams would have represented British spies dressed as tourists who poisoned colonists with adulterated tea (for example)?

I don't think so.
1.16.2007 3:15pm
Kovarsky (mail):
I am consistently disappointed with the willingness of people like Phil, Bpbatista, Jeff Schultz, and the like, whose reasoning (or lack thereof) is obscured by rhetoric, whose rhetoric is counterproductively bombastic (hang lawyers for submitting habeas petitions?), and whose basic unfamiliarity with the facts places them in the "reveals more about the speaker than the subject" category.

(1) This isn't "lefty." Field was a Reagan Appointee.

(2) Please do at least try to answer the point, made on this blog by people with professional experience that ranges from law professor to first year law student, that these people might be entitled to representation on the issue of whether they actually are enemy combatants, irrespective of whether they are entitled to representation on issues following that determination.

(3) The notion that these law firms do not work on other pro bono cases is absolutely ridiculous. Without raising privilege issues, I have worked for 3 law firms on this list and each one handles a vast portfolio of pro bono cases. If you are not a lawyer at one of these firms and have not read about this representation, that's your fault. It doesn't mean that representation does not happen. IF you are a lawyer at one of these firms and feel that your firm does not participate, then you should question the moral and professional commitments of the partners you work for.

(4) You commit very fundamental errors of reading comprehension. Field is not comparing the detainees to civil rights activists. He's saying that some of the most prominent civil rights advocates did things like represent the "Board of Topeka," and that it would be foolish to punish them for the sins of their clients.

In short, I suspect that (1) most of you are not lawyers, and are not familiar with the professional obligations that give our job some meaning, or (2) you are lawyers, and you erroneously think the professoinal obligation to do your part to make sure everyone gets a zealous defense does not extend to unpopular parties.

But none of that is the issue. The issue is whether an acting government official, using the taxpayers money, should, pursuant to professional norms, be packaging information designed to punish law firms representing parties to whom that official is an antagonist in ongoing litigation.

law will cease to appeal to our country's best and brightest if people like stimson are allowed to thuggishly intimidate them out of unpopular representation.
1.16.2007 3:24pm
JosephSlater (mail):
How bizarre it must be to believe that the folks that run big businesses in the U.S. -- including the big law firm capitalists who spend their time working for big capitalists in business -- are some sort of leftist/commie/terrorist symp class.
1.16.2007 3:26pm
Elliot Reed:
I think that Stimson's comment boils down to: "These guys are using your money to defend your enemies. Who want to kill you. Do you think that's appropriate?"

I'd say it's a very good question.
I love these leaps of faith. Factually, every single person we've imprisoned is a terrorist. The government never makes any mistakes.

Furthermore, every terrorist we've imprisoned was plotting to kill rich American civilians. None of them had goals unrelated to killing American civilians. Getting the U.S. out of their country which we just invaded, for example.

Ah, the fantasy-based community.

Seriously, the goals of those terrorists who want something other than the deaths of American civilians aren't necessarily morally superior to that goal. But you'll be much more effective in fighting your enemy if you try to understand what he actually wants rather inventing a caricature and pretending it's reality.
1.16.2007 3:26pm
Kovarsky (mail):
Richard,

By the way, you're absolutely right. Goldman Sachs isn't changing its corporate counsel because its lawyers are doing detainee litigation. It's just so pathetic and disheartening to watch the government try.
1.16.2007 3:29pm
Kovarsky (mail):
DavidNYC,

Is that you old buddy?
1.16.2007 3:31pm
Badger (mail):
Mike: Mind pointing out to me where in the Jefferson-Adams correspondence where Adams clearly drew the line between his willingness to defend soldiers for firing indiscriminately into a crowd of unarmed civilians and his unwillingness to defend someone accused of being a british spy/tea-poisoner? Can you even explain what legal principle could justify the distinction?
1.16.2007 3:32pm
Steve:
But, do you think John Adams would have represented British spies dressed as tourists who poisoned colonists with adulterated tea (for example)?

I don't think so.


Oh, of course not. He only represented British soldiers who gunned down unarmed civilians. Surely he would have drawn the line at alleged tea-poisoners.

The fact is, any argument which assumes the guilt of the accused, or assumes that defense counsel knows the accused to be guilty, is self-discrediting.
1.16.2007 3:34pm
Randy R. (mail):
Thee Bush Administration said that everyone detained at Gitmo is a hard core terrorist. Then they ended up releasing quite a few of them for lack of any evidence. So on the face of things, there is reasonable chances that any particular prisoner is innocent of any terrorism whatsoever.

For those that are in fact guilty of terrorism, what better solution than to have them represented by good law firms? If guilty, and if the Bush Administration is as confident of it's evidence as it claims it is, then let them have a fair and open trial, let them have access to all their rights, and then when found guilty, there will be no doubt in people's minds as to their guilt.

Only tyrannies fear open and fair trials. And I'm really surprised that there are people here who assume that if Bush says they are guilty, that's enough for them. We are a nation of laws, and this is what separates us from thuggish rulers. If the Bush is right that the reason they hate us is for our freedoms and liberties, then what better way to show them the benefits of such basic rights as due process of law?

But the Bush adminstration is either worried that their cases are weak, that they have the wrong guys, or that abuses such as torture will be exposed. That's why they opppose due process of law. Let them be afraid -- our democracy will be stronger for it.

And you should be afraid too. Bush can declare YOU or someone you know an enemy combantant and then hold you indefinately. Do you really think it would be wise for you argue that we don't need or want due process?
1.16.2007 3:38pm
Elliot Reed:
And you should be afraid too. Bush can declare YOU or someone you know an enemy combantant and then hold you indefinately. Do you really think it would be wise for you argue that we don't need or want due process?
It's worse than that, because it's not just Bush but every future President. Maybe you think Bush is a man of sterling moral character and eminently trustworthy, but how can you possibly feel that way about every future President? Conservatives should think hard about how they'd feel about a future President Clinton or President Gore having the powers Bush has tried to claim.
1.16.2007 3:45pm
Phil (mail):
Kovarsky
I am not sure that we are missing the point. That each person is entitled to representation does not entail that each particular person is entitled to any particular lawyer. The fact that an individual (or firm) chooses one set of needy clients over another in its pro bono work is relevant to evaluating the moral qualities of that individual or firm. I have many friends who are criminal defense attorenys (and I have done such work in the past), but if someone chooses to litigate on behalf of, e.g., NAMBLA and is not say filing 2254 and 2255 pets for poor convicts, I can certainly consider that in morally evaluating that person. Obviously the work of both is legally and professionally permissible, but must that be the end of the conversation? Even in the immigration context, a person who represents poor people fleeing China's one child policy in pursuit of asylum seems more praiseworthy than one who chooses to help child molesters obtain relief under the Torture Convention.
Finally, I do not believe that my post (or sk's) said anything at all about Mr. Stimson's remarks.
1.16.2007 3:47pm
Kovarsky (mail):
Elliot,

I don't think this has Bush's fingerprints on it. I think this is a Stimson thing. You can tell because the AG ran away from the Deputy Secretary of Defense's remarks.

I'm no Bush fan, but it isn't productive to turn every discussion into a broader Bush good/Bush bad thread. It broadens the scope of the discussion enough to let people on both sides rant and rave through generalizations with little or no relevance to the post at hand.
1.16.2007 3:50pm
Elliot Reed:
Kovarsky - agreed. The issue is that Stimson's defenders seem to be arguing that it's OK for Stimson to try to deprive the detainees of counsel because they don't deserve counsel or a hearing at all.
1.16.2007 3:53pm
Mike Keenan:
"The fact is, any argument which assumes the guilt of the accused, or assumes that defense counsel knows the accused to be guilty, is self-discrediting."

You are correct. I realized that myself after posting. So, add the words allegedly before adulterated.

My point was that John Adams defended accused soldiers. Not accused spies.
1.16.2007 3:55pm
Hattio (mail):
Oh Jeek, Many people in the US don't believe in outdated notions like "life, liberty and the pursuit of happiness" or freedom or basic liberties.

Actually, I have a theory that Bush has a secret plan to make us no longer enemy no. 1 of fanatical Muslim terrorists. He has said numerous times that they hate us for our freedoms. I figure that's why he is trying to dismantle as many freedoms as possible in the US legal system. He figures if he can just make us into a government without checks and balances, or protections for citizens, the terrorists will no longer have a reason to hate us.
1.16.2007 4:02pm
David in NY (mail):
Sorry kovarsky, it's a different name (although we have had the occasion to note the similarity ourselves). I'm the old guy.
1.16.2007 4:03pm
Badger (mail):
My point was that John Adams defended accused soldiers. Not accused spies.


No, that's not what you said. Whether or not Adams ever actually did defend an accused spy in court, you claimed that he never would have, based on principle. You offered this with no evidence or even a general principle that would lead to the distinction you claimed. Don't try cover your tracks.

So Adams believed in an America where, as soon as one was accused of being a foreign spy they would lose their right to legal representation? This in a nation where the rights of those accused of treason are specifically defined (and defended by a very high evidentiary standard) in the Constitution?
1.16.2007 4:04pm
David in NY (mail):
"My point was that John Adams defended accused soldiers."

Accused soldiers who shot a bunch of unarmed civilians, as I recall. The point is that the populace of Boston thought those British soldiers were just a bunch of damned terrorists, just as a number of commentators here seem to assume the same of all Guantanamo detainees. It ain't necessarily so in either case, however, which is why we have defense lawyers.
1.16.2007 4:07pm
Kovarsky (mail):
Phil,

That each person is entitled to representation does not entail that each particular person is entitled to any particular lawyer.

Of course it doesn't. That a person is not entitled to a particular lawyer does not mean that actions like Mr. Stimson's are justified against the lawyer that ultimately takes the case. That's the point.

The fact that an individual (or firm) chooses one set of needy clients over another in its pro bono work is relevant to evaluating the moral qualities of that individual or firm.

Sure, what's wrong is the government, as an interested litigant, underhandedly and selectively packaging information to further intimidate law firms from undertaking that representation.

but if someone chooses to litigate on behalf of, e.g., NAMBLA and is not say filing 2254 and 2255 pets for poor convicts, I can certainly consider that in morally evaluating that person.

you do realize the irony in your contrast right? "poor convicts" who are 2254 and 2255 petitioners. in other words, you are lauding defense of individuals that have had at least one round of criminal process and are convicted, because that is, in your view, more admirable than NAMBLA work (I am not sure that defending a sexual predator in a 2254 action is that morally superior to a watershed free speech case, but I'll leave that alone).

more importantly, what's wrong with the "relevant information" argument is that it's distorted information. it has provoked exactly the reaction it was intended to provoke - a bunch of people who are not familiar with pro bono at these firms at all talking as though the only pro bono work they do is for detainees. Stimson's behavior was manipulative, and his manipulation is all the more odious because he abused his public office to do it.

does tulia texas ring a bell? look at the roster of firms involved in that one. i think it probably resembles the DoD request.
1.16.2007 4:08pm
Thief (mail) (www):
So how come the Haditha Marines don't get a bevy of Covington and Burling associates? How come 1LT Ilario Pantano didn't get a Cleary Gottlieb heavyweight to represent him? Their causes are just as unpopular, so what's the deal?

*crickets chirping*

Thought so. It's not about validating any principle, least of all justice. It's about validating a political belief. That's why the Gitmo detainees do not lack for legal aid, while U.S. servicemen accused (in one instance noted above, falsely) of war crimes can't even get the time of day from the white-shoe crowd.

Ingrates.
1.16.2007 4:16pm
Davide:
Kovarsky,
Geez-- for a guy who likes to lambaste others for a "fundamental" failure of reading comprehension, you fail to note that the author's name is Charles FRIED. Not "Field" (as you say several times).

Aside from that, your post is just off. No one is saying that Gitmo detainees aren't entitled to representation. People are saying that those who represent them can be criticized for doing so. Like the woman lawyer who represented the blind sheik who bombed the WTC before 9/11. He may have been "entitled" to be represented, but we can all laugh at the foolish lawyer who advocated his murderous cause.

Try to grasp the distinction: people may have the right to be represented. That does NOT mean that (a) I am prohibited from criticizing the lawyer who does so for poor judgment and/or political bias; and (b) that he HAS to be represented by a given attorney.

And that's the rub: we can and should judge lawyers on their clients. By the way, a little 411: that's what happens all the time. Clients (corporate and otherwise) judge their law firms on (a) minority recruitment; (b) representation of other clients (not just for conflicts, but to see if the firm is sympatico with the clients' views); and (c) on political ideology.

Now, reasonable people can and do differ on whether the Gitmo detainees have a good case. Fine. But that certainly says nothing regarding making criticism verboten.
1.16.2007 4:16pm
Mike Keenan:
Isn't John Adams the same man who had the Alien and Sedition laws passed? In order to imprison political opponents?

Anyway, from wikipedia:

On June 5, 1776, the Congress appointed John Adams, Thomas Jefferson, Edward Rutledge, James Wilson, and Robert Livingston "to consider what is proper to be done with persons giving intelligence to the enemy or supplying them with provisions."

RESOLVED, That all persons not members of, nor owing allegiance to, any of the United States of America, as described in a resolution to the Congress of the 29th of June last, who shall be found lurking as spies in or about the fortification or encampments of the armies of the United States, or of any of them, shall suffer death, according to the law and usage of nations, by sentence of a court martial, or such other punishment as such court martial may direct.

Military trials followed by execution. That is what John Adams apparently believed in. So, yes, some representation.

Anyway, I think Charles Stimson's comments are despicable. But, I don't like hagiographic fantasies.
1.16.2007 4:22pm
Kovarsky (mail):
Davide,

I hardly think mispelling someone's name is a failure of reading comprehension, which relates less to spelling than to, you know, the thrust of what one is saying.

As for the following,

Aside from that, your post is just off. No one is saying that Gitmo detainees aren't entitled to representation.

Um, yes they are. I understand that is not what Stimson's himself says, but the idea he may properly dissuade lawyers from representation is, in the minds of miny who post on this bloogy, justified because "the detainees don't really deserve representation anyways." if your point is that this is not the most mature, intelligent, or informed version of the argument; i agree. if your point is that people don't make it nonetheless, you are incorrect.

laugh at the foolish lawyer who advocated his murderous cause. Try to grasp the distinction: people may have the right to be represented. That does NOT mean that (a) I am prohibited from criticizing the lawyer who does so for poor judgment and/or political bias; and (b) that he HAS to be represented by a given attorney.

Sure, you can laugh at them. That is a different issue than whether the government can package information to intimidate lawyers from taking on their cases in the future. That's the issue.

By the way, a little 411: that's what happens all the time. Clients (corporate and otherwise) judge their law firms on (a) minority recruitment; (b) representation of other clients (not just for conflicts, but to see if the firm is sympatico with the clients' views); and (c) on political ideology.

If you can't reason through the difference between minority recruitment and the portfolio of legal representation, I'm not going to do it for you. Again, you are the one missing the important point. The point is not some anti-free market point about clients being entitled to make decisions based on whatever they want to base those decisions on; it's about the government's thuggish attempt to push them in a particular direction.
1.16.2007 4:30pm
JunkYardLawDog (mail):
Kovarsky


In short, I suspect that (1) most of you are not lawyers, and are not familiar with the professional obligations that give our job some meaning,



That was good for a really good laugh. That statement is so completely irrelevant to the real world of law practice for 100% of the non-lawyer population and 90% to 99% of the real world practicing lawyers that it is amazing there are still lawyers around trying to tell themselves this crap. That want to pretend practicing law is more noble or more worthy than being any other kind of tradesman such as a plumber, electrician, accountant, or actuary.

Here's a clue. It isn't, and outside of a handful of contrary examples (which are in no way limited only to the legal trade guild members) it NEVER HAS BEEN. People practice law for money and power (and I don't think there is anything wrong with that and I'm not using that in a pejorative sense), but I find it really annoying when lawyers lie to or delude themselves or others with regard to the truth of the lawyer trade and all other possible trades and professions.


or (2) you are lawyers, and you erroneously think the professional obligation to do your part to make sure everyone gets a zealous defense does not extend to unpopular parties.


That rule only applies to those clients that a lawyer chooses to represent and the choice of whom a lawyer or large law firm chooses to and chooses not to represent with regard to limited pro bono resources is one that is appropriately ripe for public comment. Even by employees of the federal government that have free speech rights just like the rest of us. Stimson merely exercised his rights to free speech, and rightly so because it got a lot of people thinking about this important issue, so he is a patriot doing the country a favor by encouraging discussion of this important topic.

If any law firm doing this pro bono work can't publish the hours they have worked representing soldiers, veterans, and those who have served this country with pride, honor, and distinction that balance out the representation of the nation's enemies then that is a fair subject for comment by all including persons who happen to be employed by the federal government when exercising their free speech rights.

Finally, to all those waxing on about the waiters who just happened to be in the restaurant at the time some terrorist was captured, I say BOLLACKS. Gitmo detainees have been given several reviews about the propriety of their classifications both before and after arriving at GITMO. Out of 10,000 or 20,000 people detained and questioned a total of less than 800 were ever taken to GITMO. Many of these people were released and then recaptured or killed back on the battlefield where they were once again trying to kill USA citizens. They were exactly the people that many here say are innocent and we were pressured into releasing them even though we knew better.

Says the "Dog"
1.16.2007 4:33pm
Steve:
I'm sorry, Mike Keenan. What do spies have to do with the detainees held at Gitmo?

I have no problem with military tribunals, by the way. As an American, I do have a problem with just tossing people in a hole for the rest of their lives, particularly where we have no clue if these people are guilty or innocent.
1.16.2007 4:34pm
JunkYardLawDog (mail):
I really love people trying to suppress the free speech liberties of a person who dares to speak ideas about which the squealers want to keep secret while talking about noble sounding principles of zealous representation. These same people doing all the crazed squealing are really seeking to intimidate Stimson and his speech/thoughts through threats against his livelihood and family. Hardly consistent or becoming for those who lie to themselves and others about the high sounding principles for which they supposedly stand.

Says the "Dog"
1.16.2007 4:38pm
Mark Field (mail):

So how come the Haditha Marines don't get a bevy of Covington and Burling associates? How come 1LT Ilario Pantano didn't get a Cleary Gottlieb heavyweight to represent him? Their causes are just as unpopular, so what's the deal?


They're entitled to counsel as a matter of law. If they need or want additional counsel, I suspect those firms would be available. As for the whole thing coming down to political attitudes, it's worth pointing out (again) that one of the firms involved also represents Scooter Libby.
1.16.2007 4:42pm
Houston Lawyer:
I believe that the purported "representation" of the detainees is much more about politics than about a belief in the innocence of the accused. I'm sure these same legal departments all do extensive death penalty appellate work as well. I have known attorneys who work on the death penalty appeals. They seldom assert that their clients are innocent, but they object to the death penalty being applied. I suspect a similar bent in these cases.

I'm all for hiring them the best counsel, trying them, and executing the guilty. Can we get started on that now? If we can't convict them, we can always drop them off where we found them and let the locals deal with them.
1.16.2007 4:44pm
Badger (mail):
Mike,

That's a valid point with the A&S Acts. I had misunderstood your previous comments to be a defense of Stimpson on the basis of what Adams would have done given a hypothetical situation, rather than an attempt to push back on Cherry Tree-style haigiography. I still believe that it's still an open question as to whether or not middle-aged lawyer Adams would have taken the tea-poisoner case, but his later support of the A&S Acts does at least cast some doubt on the matter.
1.16.2007 4:44pm
JRL:

The issue is that Stimson's defenders seem to be arguing that it's OK for Stimson to try to deprive the detainees of counsel because they don't deserve counsel or a hearing at all.

That about sums it up.
1.16.2007 4:50pm
Hattio (mail):
Junk Yard Law Dog,
So Stimson is a Patriot for speaking about a matter of public concern that is doing the country a favor for encouraging a discussion of this important topic. What about Seymour Hersh? Cindy Sheehan? Are these people also Patriots? Or does this only apply to those who speak out on a topic you happen to agree with?
1.16.2007 4:52pm
Badger (mail):
Houston Laywer: Couldn't the pro bono lawyers be motivated, not out of a belief that their clients are innocent, but out of a desire to prevent dangerous legal precedents from being established and being applied to innocent defendants in the future? Is it even that important what their motivations are? As long as they are conducting their defenses in an ethical and responsible way (which is more than can be said of hacks like Stimpson) why is any mind-reading necessary?
1.16.2007 4:52pm
Badger (mail):
Stimson*
1.16.2007 4:54pm
Pantapon Rose (mail):
That's an obvious false comparison regarding Adams representing the British soldiers involved in the Boston Massacre. The US was not at war with the British; at the time, the US was a British Colony, and so Adams was representing the recognized authority, government troops. Adams was, in essence, representing the ruling power. A more proper comparison would be with a lawyer representing US troops accused of war crimes, not alleged terrorists.
1.16.2007 5:03pm
Mike Keenan:
"I'm sorry, Mike Keenan. What do spies have to do with the detainees held at Gitmo?"

I have read many arguments that spies and un-uniformed combatants ("terrorists") should be treated similarly (military tribunals and so forth).

"I have no problem with military tribunals, by the way. As an American, I do have a problem with just tossing people in a hole for the rest of their lives, particularly where we have no clue if these people are guilty or innocent."

I think you and I are in agreement.
1.16.2007 5:04pm
SeaLawyer:
Thanks Pantapon Rose!
Quite a few people here need to go do some research on the Boston Massacre. There is no comparison between that event and Gitmo.
1.16.2007 5:07pm
JunkYardLawDog (mail):
Hattio,

I'm not aware of any people arguing that Cindy Sheehan should have her professional licenses and ability to earn an income taken away as are the arguments being made here and elsewhere about Stimson. I'm not aware of any person arguing Cindy Sheehan has no right to exercise her free speech rights as is being done here and elsewhere against Stimson. Cindy Sheehan is free to speak all she wants and when her speech reveals she was a left wing communist supporting anti-american buffoon long before her poor son rejected her political leanings and enlisted in the military is a subject for public comment about a person who has chosen to make herself very public.

That it appears to me and many that Cindy Sheehan has chosen to use her son's rejection of her political ideas as a means for her own income generation, notoriety, and self-aggrandizement is wholly unrelated to Stimson. If people were commenting that Stimson was seeking to join the speech circuit to make money from his comments this discussion wouldn't draw comments like mine. However, unlike with Cindy Sheehan people are seeking to silence his free speech through threats to his professional licenses and employment all while spouting off various high sounding noble garbage about protecting people's rights.

Says the "Dog"
1.16.2007 5:13pm
Henri LeCompte (mail):
A war cannot be conducted like a criminal prosecution. To think otherwise is madness.

The detainees in Gitmo are trapped in a political/legal limbo that they put themselves in when they decided to become un-uniformed, un-conventional enemy combatants against the US military. They have no rights, and no necessary access to any sort of legal process. This is because "war" is a State activity that operates outside the usual boundaries of civil or criminal law.

Unconventional soldiers are subject to unconventional law. Tough luck. The sooner we make that crystal clear to all players, the sooner we will prevail in Iraq, and the sooner our soldiers will come home. And the fewer civilian deaths we'll have. And the more lasting the peace will be.
1.16.2007 5:22pm
Steve:
The detainees in Gitmo are trapped in a political/legal limbo that they put themselves in when they decided to become un-uniformed, un-conventional enemy combatants against the US military.

It's amazing how many times you can explain to someone like this that the majority of the detainees in Gitmo were not, in fact, combatants against the US military, and yet they just keep pressing forward with the same old argument. It's like they've been vaccinated against the facts.
1.16.2007 5:27pm
Kovarsky (mail):
Steve,

You are too easily trolled.

:)
1.16.2007 5:32pm
Steve:
I really love people trying to suppress the free speech liberties of a person who dares to speak ideas about which the squealers want to keep secret while talking about noble sounding principles of zealous representation. These same people doing all the crazed squealing are really seeking to intimidate Stimson and his speech/thoughts through threats against his livelihood and family.

What an amazing piece of work this guy is, huh? When Stimson suggests that maybe clients should stop doing business with these lawyers, he's a patriot exercising his free speech right. When others suggest that the government should cease to employ someone with as poor an understanding of American values as Stimson, they're trying to suppress his liberties and threaten his livelihood. And here you probably thought the First Amendment was meant to protect the speech of private individuals from interference by government actors, when instead it seems just the opposite is true!

It's fascinating, and I'm sure this poster believes he is being intellectually honest through and through, which just makes the whole thing that much more hilarious.
1.16.2007 5:37pm
Steve:
Kovarsky: You win the day, my friend.
1.16.2007 5:38pm
Kovarsky (mail):
Steve,

He really believes it.
1.16.2007 5:46pm
Why let facts get in the way (mail):
"This pathetic scene has repeated itself over and over again. Abdul Kahm had been detained by the Taliban at gunpoint. This exchange is from his inquiry:

Q. Did you ever fight with the Taliban?
A. No.
Q. What was your job in the army?
A. They did not give me a job.
Q. So, your days were spent under guard in detention?
A. Yes.
Q. How long were you with the Taliban?
A. One month. ...
Q. [C]ould you have walked away?
A. No.
Q. What would have happened if walked away from the compound?
A. They would have shot me.

Kahm wanted to present witnesses who would confirm that he had been taken from his family. Military officers denied the request because the testimony would not be "germane," they said.

One officer said that finding Kahm an enemy combatant was
"gut-wrenching," but insisted he had no choice. The definition of enemy combatant "does not address consent or intent," the officer said."

Note that it wasn't that the tribunal found his account of being kidnapped not credible. In the Kafkaesque world of the CSRT, lack of consent is just irrelevant. Who needs lawyers?

See this Chicago Tribune op-ed
1.16.2007 5:54pm
Prigos:

Unconventional soldiers are subject to unconventional law. Tough luck. The sooner we make that crystal clear to all players, the sooner we will prevail in Iraq, and the sooner our soldiers will come home. And the fewer civilian deaths we'll have. And the more lasting the peace will be.

I suspect you'd find that a quick review of most situations involving "unconventional law" would reveal that there is an inverse relationship between it and "lasting peace." Of course, that might have something to do with the governments that would compose most of a representative sample of situations involving unconventional law.
1.16.2007 6:07pm
Enoch:
The definition of enemy combatant "does not address consent or intent," the officer said."

Note that it wasn't that the tribunal found his account of being kidnapped not credible. In the Kafkaesque world of the CSRT, lack of consent is just irrelevant.


In fact it should not be relevant. We have fought plenty of armies - and guerrilla forces - whose members did not freely consent to fight. Many Viet Cong were forcibly conscripted just like this guy (beaten, their families threatened, threatened with death, etc etc.) but they were highly effective combatants nonetheless.

And the guy was a cook - what's that got to do with anything? The US Army has cooks, just like every military. They are most definitely combatants for all that.

All this assumes the guy wasn't lying, of course. If my ass was in Gitmo, "I wuz forced to join!" would definitely be my story.
1.16.2007 6:28pm
Hattio (mail):
Junk Yard Law Dog
When you take on certain jobs, you agree to certain restrictions on your speech. Keeping your law license requires abiding by those restrictions. I can't cavalierly call a judge names, because I want to keep my law license. Mr. Stimson also has a law license. He has, at least arguably, put it in jeapordy. Now, personally, I don't think anything he did is unethical by the rules of professional responsibility if all he did was encourage CEO's to look at their law firms again. But it is an arguable question. I do happen to think it's unethical morally, and a disservice to the country and he should lose his job. You can be held up to ridicule for the things you say. You can lose your job for them. If you have no problem with this happening to Cindy Sheehan, you should have no problem with it happening to Stimson.
1.16.2007 6:34pm
Kovarsky (mail):
All this assumes the guy wasn't lying, of course. If my ass was in Gitmo, "I wuz forced to join!" would definitely be my story.

That's why we, like, let them have lawyers and allow them to introduce evidence and stuff. To, like, help sort out if they're lying instead of just assuming it.
1.16.2007 6:36pm
Randy R. (mail):
"The detainees in Gitmo are trapped in a political/legal limbo that they put themselves in when they decided to become un-uniformed, un-conventional enemy combatants against the US military."

and how do you know that? Because Bush said so, it must be true? Again -- if you are so sure of the facts, then why not have an open and fair trial? What exactly are you so afraid of happening if the detainees are properly represented by counsel. And again - I note that quite a few of these 'enemy combatants' were released because even the military could see no reason for holding them. could there not be a possiblity that this is true for some of the remainders?

And finally, I note that Jose Padilla is being held and the government has conceded that he had no intention of making a dirty bomb, which was the original charges.
1.16.2007 6:39pm
Mark Field (mail):

I believe that the purported "representation" of the detainees is much more about politics than about a belief in the innocence of the accused.


At this stage of the proceedings, actual innocence is the ONLY issue. The only way the detainees can be released right now is if they prove they were not enemy combatants. That's the same as a defendant proving that he did not murder someone. On what possible basis can anyone seriously object to a showing of actual innocence?
1.16.2007 6:43pm
A.S.:
That's why we, like, let them have lawyers and allow them to introduce evidence and stuff. To, like, help sort out if they're lying instead of just assuming it.

I don't see how the one follows from the other. The CSRT are not judicial proceedings, they are military proceedings. You don't give an person shooting a gun on a battlefield a lawyer and the opportunity to provide evidence that he was actually just hunting deer prior to shooting at him. So why do you give a person picked up in Afghanistan a lawyer and the opportunity to show he as forced to be a cook's assistant?
1.16.2007 6:54pm
frankcross (mail):
I think some people are afraid with reading the government data in the Seton Hall report.

A substantial majority of the detainees are not even charged with being combatants.
1.16.2007 6:59pm
Kovarsky (mail):
A.S.

Do you really not see differing demands for procedural formality between, say, a person pointing a gun on a battlefield and a person locked in a 5X7?
1.16.2007 7:00pm
A.S.:
Differing demands? No. I see differing opportunities for affording a person additional procedures in the tribunal setting.

Which means that I'm prepared to grant the detainee as much procedure as I think we can afford to give him without unduly endangering our war effort. (I would likewise be prepared to grant persons on the battlefield as much procedure as we can afford without unduly endangering our war effort - which is (among the reasons) why we have things like rules of engagement.) The procedures I think we can afford to give detainees does not include providing the detainee with classified information.
1.16.2007 7:37pm
A.S.:
I think some people are afraid with reading the government data in the Seton Hall report.

That's like saying some people are afraid of reading the data in the cigarette companies' tobacco studies.
1.16.2007 7:39pm
Kovarsky (mail):
A.S.

What are you talking about? What the hell does classified info have to do with dissuading law firms from representing them? Are you even saying anything anymore?
1.16.2007 7:47pm
Steve:
That's like saying some people are afraid of reading the data in the cigarette companies' tobacco studies.

The Seton Hall report is a compilation of the U.S. Government's own records. You seem to have an endless supply of inapt analogies.

So why do you give a person picked up in Afghanistan a lawyer and the opportunity to show he as forced to be a cook's assistant?

Because otherwise, you're taking people of unknown provenance, who were turned over to us by the Northern Alliance in exchange for a bounty, and throwing them in a hole for the rest of their natural life. Seriously, these aren't hard questions.
1.16.2007 7:54pm
Enoch:
That's why we, like, let them have lawyers and allow them to introduce evidence and stuff. To, like, help sort out if they're lying instead of just assuming it.

So, like, we can make no assumptions that this guy is, like, innocent, or that his detention, is, like, invalid and immoral just because he says he was a forcibly conscripted cook and stuff. Yet some people here, like, seem to think so.
1.16.2007 7:58pm
r78:

These guys are using your money to defend your enemies. Who want to kill you.

Perhaps you should tell that to the US Govt., since they have released over 700 detainees from Gitmo.

Does the US Government know that it is releasing enemies who what to kill us?

Get on the phone.
1.16.2007 8:12pm
Kovarsky (mail):

So, like, we can make no assumptions that this guy is, like, innocent, or that his detention, is, like, invalid and immoral just because he says he was a forcibly conscripted cook and stuff. Yet some people here, like, seem to think so.

People's point is not that he be taken at his word but that he be allowed to test the veracity of that statement in front of a competent tribunal.

I personally don't know whether the law says consent matters. If consent doesn't matter under the legislation, I think it's fair to say that's problematic. If consent does matter under the legislation and the proceedings are not honoring that, then we have a bigger problem.
1.16.2007 8:16pm
Enoch:
he be allowed to test the veracity of that statement in front of a competent tribunal.

It should not matter if it is literally true as stated.

If consent doesn't matter under the legislation, I think it's fair to say that's problematic.

I don't see why it should be, except perhaps from a practical standpoint.

The MCA of 2006 appears to make no distinction based on consent:

(7) UNLAWFUL ENEMY COMBATANT.—The
term 'unlawful enemy combatant' means an indi-
vidual determined by or under the authority of the
President or the Secretary of Defense—
(A) to be part of or affiliated with a
force or organization—including but not
limited to al Qaeda, the Taliban, any interna-
tional terrorist organization, or associated
forces—engaged in hostilities against the
United States or its co-belligerents in viola-
tion of the law of war;
(B) to have committed a hostile act
in aid of such a force or organization so en-
gaged; or
(C) to have supported hostilities in
aid of such a force or organization so engaged.

The insignificant cook fits C.
1.16.2007 8:53pm
frankcross (mail):
A.S. pretty much just said that the government sources are as reliable on detainee guilt as the cigarette companies are on tobacco's health. Which may be why they should get representation.

Enoch, a fairly small number of the detainees are even charged with being unlawful enemy combatants.
1.16.2007 9:04pm
mls (mail):

I really love people trying to suppress the free speech liberties of a person who dares to speak ideas about which the squealers want to keep secret . . . . These same people doing all the crazed squealing. . .

Yep, "crazed squealers" like the Conspirators and Kenneth Starr, who signed the letter from law school deans condemning Stimson's remarks. Another signatory -- the dean of George Mason University School of Law, that liberal bastion. And not incidentally, Stimson's alma mater.

When you nut it all down, it isn't really about war, terrorism, or rights. It's about government power. It's about the government trying to stack the deck by discouraging opposition in the legal arena. I thought libertarians were all about limited governmental power. Why so comfortable with expanded government power here?

Says the "Higher Life Form"
1.16.2007 9:07pm
Eli Rabett (www):
As Martin Niemoeller pointed out you don't much like it when they come for the lawyers, but it is too late to object now after cheering them on.
1.16.2007 9:15pm
mls (mail):

A war cannot be conducted like a criminal prosecution. To think otherwise is madness.

Sounds so pretty, but it's a remarkably unhelpful adage. It could be easily made to support the notion that it would be madness to bring criminal prosecutions against those Marines accused of the Hadditha massacre, allegedly done in the midst of war -- we should either shoot them at dawn or ignore the alleged misconduct. Your aphorism would support either result.

Just because we're "at war" doesn't mean that everything we do is "war." It would be just as productive to say, "A war cannot be conducted like an orchestra. To think otherwise is madness." Yet the Marine band plays on . . . .

No one is suggesting that the army conduct war as a criminal prosecution. I haven't heard anyone argue that the army should acquire a warrant before bombing a terrorist hideout in Afghanistan, or argue probable cause before capturing bin Laden.

But once the government has removed an alleged combatant far from an active battlefield, why accept without meaningful review the government's story that the person is in fact a combatant?

So much of the argument for the current expansion of governmental power is that we are engaged in a war LIKE NO OTHER. Yet we argue that this is a war LIKE ALL OTHERS when we seek to characterize those in U.S. custody as "unconventional soldiers" deserving of no legal protection. Maybe being unconventional soldiers fighting an unconventional war allows for MORE rights, not LESS rights, than ever before.

The concern is simple -- the war is characterized as unending, the war is characterized as everywhere, the war is not against a nation-state that can surrender so as to have its prisoners released, the war is waged against us by non-nations with non-flags and non-uniforms. The unconventional nature of the war and the combatants increases considerably the possibility of mistake in assessments of who is actually a combatant. If that mistake is made, and we do not undo it, the mistake is forever.

The choices seem to be: 1) assume that no mistakes will be made; 2) assume that the government will appropriately sort out the mistakes without any oversight; 3) provide oversight to help correct any government mistakes.

So how far do you trust the government? Our nation's tradition has been to provide oversight of government action, and that tradition includes meaningful legal review. So why not have that meaningful legal review before we accept so sanguinely the potentially life-long "political/legal limbo" of the alleged "unconventional soldiers"? Wouldn't that simply be recognition that when we say we need new rules for this new type of war, we might think of rules that limit government action as well as rules that expand it?
1.16.2007 9:36pm
Zimbalong:
Frankcross:
I think some people are afraid with reading the government data in the Seton Hall report.

A substantial majority of the detainees are not even charged with being combatants.

None of the detainees is charged with being a combatant.

All of the detainees are accused of being combatants, and they are all held become someone determined them to be combatants (wrongly, you might argue, but that doesn't seem to be your point). Most of these determinations were made by combatant status review tribunals.

Some are charged with being war criminals; those charges will lead to trials by military commission.

The decision to detain someone as a combatant does not depend on their being charged as a war criminal. The US held millions of German combatants in WWII; most were not war criminals.

Are you saying that the detainees are not accused of being combatants? That's factually incorrect.

Are you saying they aren't charged with being war criminals? That's irrelevant to whether they can be held as combatants.
1.16.2007 9:46pm
Truth Seeker:
Perhaps you should tell that to the US Govt., since they have released over 700 detainees from Gitmo.
Does the US Government know that it is releasing enemies who what to kill us?


Yes, after picking up some released detainees on the battlefield a second time, they do know that. Leftist lawyers got them off so they could try to kill Americans again...
1.16.2007 9:47pm
llamasex (mail) (www):
Heh, when lawyers start getting Dixie Chick'ed suddenly its not cool to call for a boycott.
1.16.2007 10:20pm
Mark Field (mail):

Are you saying that the detainees are not accused of being combatants? That's factually incorrect.


A small percentage of the detainees actually are NOT accused of being enemy combatants. The vast majority are.

It's the dubious nature of the "evidence" for that which is what's really at issue.
1.16.2007 10:44pm
frankcross (mail):
Zimbalong, that is incorrect. I used the word charged loosely. The government hasn't officially charged them. But it has categorized the reasons for holding them. And most are not accused of being combatants. This is all documented, using government records, in the Seton Hall report.
1.16.2007 10:46pm
Bob from Ohio (mail):
I wish Prof. Adler had lived up to his promise of his last post on this subject: "Defending Detainees -- One Last Time".

Another key member of the legal establishment (Fried) trots out on cue to defend the elite firms. Yawn.
1.16.2007 10:57pm
Bob from Ohio (mail):
By the way, John Adams was wrong to defend the British soldiers. His duty was to his people, not to some lawyer conceit. His vanity got the better of him. A great patriot but everyone makes mistakes.
1.16.2007 11:03pm
Kovarsky (mail):
Bob,

Another key member of the legal establishment (Fried) trots out on cue to defend the elite firms. Yawn.

You realize Fried used to be Reagan's SG right?
1.16.2007 11:06pm
Elliot Reed:
I hadn't realized before that "enemy combatants" includes people who are neither enemy nor combatants. You learn new things every day, I guess.

At least they weren't enemy and weren't combatants before we brought them in. After a few years of being waterboarded in Gitmo I'd be ready to shoot any Americans I saw.
1.16.2007 11:16pm
Elliot123 (mail):
I think the argument many have with the lawyers for the Gitmo folks is that the lawyers have taken it upon themelves to declare the prisoners have all the rights of people living in the United States. This is too important a question to be left to the lawyers. It's not their call.

From everything I have read, there are good arguments on both sides of the question. So, I have to ask why these lawyers are all on the side of extending full rights to the prisoners. They have moved beyond the scope of defending people under our system; they are trying to change the system for the benefit of the people who want to kill us.

That puts them squarely in the political arena, and while few will incur the expense of firing their law firm because of such work, many will consider it in hiring a law firm.

I recognize their right to take whatever client they choose, and advocate as they choose. But, I wonder how many of these same firms have taken on Columbian drug lords as clients? Perhaps they don't wnat to associete with them regardless of their right to representation. Likewise, perhaps I don't want to associate with the lawyers who want to change our system to the benefit of the people who want to kill me.
1.16.2007 11:29pm
Kovarsky (mail):
Elliot123,

What makes you think the lawyers want to "change the system?" presumably they only want to uphold the system, i.e. the constitution.
1.17.2007 12:51am
Bob from Ohio (mail):
Kovarsky: Yes, I know who Fried was SG for. Your point? Since you missed mine, I will spell it out.

Stimson stepped on the toes of the big firms that are the "elite" of the legal community. The legal establishment in other words.

So, other parts of the legal estabishment rush out to defend the elite firms. Law professors and law deans are important establishment figures, both right and left leaners. Former Solicitor Generals are very respected elder statesman of the legal establishment, no matter which president they were SG for. The fact that Fried was SG for Reagan is a huge bonus.

This is all about guild members taking care of their own. Fried is a conservative but he is a very high ranking guild member. His opposition to Stimson is hence totally expected. Hence the yawn.
1.17.2007 1:02am
Kovarsky (mail):
Bob, so who is both a lawyer and not a member of the legal establishment under your reasoning? You've eliminated those who represent parties antagonistic to the SG, and you've eliminated the SG... who are you talking about? What other side is there to take?
1.17.2007 1:41am
Lev:

You realize Fried used to be Reagan's SG right?


Twenty years ago? So what?

------------------


Charles Stimson showed ignorance and malice


Malice? Ignorance? I suppose, malice for having the temerity to criticize the law firms and ignorance for not understanding how unbelievably wonderful they are.
1.17.2007 1:47am
ADB:
Why are people so afraid to give these so-called "enemy combatants" a fair trial? What do you think lawyers are? Get Out of Jail Free cards? These lawyers are just ensuring that these guys are who the government says they are. Why are you afraid of a real trial with real judges and real lawyers?

These are real people, with families at home where they come from... some, maybe even all, are guilty of trying to kill Americans; but if so, why are you afraid that they will get a fair trial?

My guess is that you are afraid that if the United States lets these enemy combatants go, they will return to the battlefield to kill more Americans. But if we keep them locked up without a trial, it is us Americans who are committing a grave injustice if these people are innocent.
1.17.2007 3:49am
Public_Defender (mail):
Stimson has apologized:


"Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not," Stimson wrote in response to the furor over his remarks.

"I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs," he wrote.


If the comments don't represent his "core beliefs," what do they represent?
1.17.2007 4:14am
AndersK (mail):

What an amazing piece of work this guy is, huh? When Stimson suggests that maybe clients should stop doing business with these lawyers, he's a patriot exercising
his free speech right. When others suggest that the government should cease to employ someone with as poor an understanding of American values as Stimson,
they're trying to suppress his liberties and threaten his livelihood. And here you probably thought the First Amendment was meant to protect the speech
of private individuals from interference by government actors, when instead it seems just the opposite is true!


Yes, not to mention that Stimson as an employee of the government has even more limited First Amendment rights when speaking to the press.
The test for public employee free speech rights (Connick) is considerable lower than that applicable to private citizens.
1.17.2007 5:07am
mls (mail):

Heh, when lawyers start getting Dixie Chick'ed suddenly its not cool to call for a boycott.

Sigh. We're not talking about some radio station deciding not to play certain artists. We're talking about a GOVERNMENT OFFICIAL suggesting that the radio station not play certain artists whose message the government doesn't like.

Hmm, I suddenly like your Dixie Chick analogy. It makes pretty apparent that we're talking about abusive government power . . . .

BTW, I'm glad to see that Stimson FINALLY apologized this morning. Maybe he shouldn't be fired after all -- but a reassignment away from detainee affairs certainly seems in order.
1.17.2007 7:58am
Jeremy T:
Andersk,

The problem here is that people are arguing for all sorts of punishments for Stimson. The First Amendment defense works in some contexts but not in others.

The First Amendment would, or at least should, protect him against any sort of professional discipline. It would, or at least should, NOT protect him against firing.

But I don't think he did anything wrong anyway, and I agree wholeheartedly with his sentiments. If these big law firms want to do pro bono work, they should try to help the hundreds of thousands of low income Americans who die intestate every year, leading to costly and rancorous family battles over meager possessions.

There are many more important things than freeing even the innocent at Gitmo.
1.17.2007 8:01am
Jeremy T:
Oh, and to the Stimson detractors, his comments are only even arguably wrong if it is established that the Gitmo detainees have a right to retain representation. It is not clear to me, as a legal matter, that an illegal enemy combatant even has the right to a lawyer he retains on his own. If the government can prohibit these people from even being represented, then a government official is free to criticize law firms who are trying to provide representation.

I realize that most in the legal community would view it as heresy to suggest that some people have no right to pay for (or get for free) their own lawyer, but the question of what to do with illegal enemy combatants who do not follow the rules of war. If the government can summarily execute them on the battlefield, which seems to be a true statement, it can certainly deny them representation in any tribunal down the road. If it can deny them representation, but chooses not to, it can still criticize those who provide it.

If Stimson had been talking about American citizens accused of crimes, I would agree that his comments were inappropriate (though still not disciplinable). But he's talking about illegal enemy combatants, and because I don't believe they have any right to be represented, I find no fault in criticizing those who do represent them.
1.17.2007 8:07am
AndersK (mail):



The problem here is that people are arguing for all sorts of punishments for Stimson. The First Amendment defense works in some contexts but not in others.

The First Amendment would, or at least should, protect him against any sort of professional discipline. It would, or at least should, NOT protect him against
firing.


I agree to the extend that his criticism might be charibly construed as criticism -- in his private capacity -- of the choice of pro bono clients.
But my point is just that the free speech rights of Stimson is very limited, so calling for his firing while at the same time defending the right of law firms to represent detainees, doesn't therefore not necessarily exhibit a double standard.


Oh, and to the Stimson detractors, his comments are only even arguably wrong if it is established that the Gitmo detainees have a right to retain representation.
It is not clear to me, as a legal matter, that an illegal enemy combatant even has the right to a lawyer he retains on his own. If the government can prohibit
these people from even being represented, then a government official is free to criticize law firms who are trying to provide representation.

This reasoning is flawed for the very reason that the detainees might have a constitutional right to (more) due process, or at least that the Supreme Court could down the road settle the law by ruling against the government.
Since we don't know how the Supreme Court will ultimately resolve the prisoner claims, effective governmental interference with pro bono legal representation would have the effect of precluding the prisoners from ever litigating whether they would have any rights in the first place.



I realize that most in the legal community would view it as heresy to suggest that some people have no right to pay for (or get for free) their own lawyer,
but the question of what to do with illegal enemy combatants who do not follow the rules of war. If the government can summarily execute them on the battlefield,
which seems to be a true statement, it can certainly deny them representation in any tribunal down the road. If it can deny them representation, but chooses
not to, it can still criticize those who provide it.


Since the definition of battle field according to the government is very broad , they could pick any non-citizen up -- in New York, London or have any person taken into custody through the aid of a third party -- and the detainee would have no recourse to any process as a matter of right.
What about tourists or permanent resident aliens?
1.17.2007 9:03am
Bob from Ohio (mail):
Kovarsky: There are over a million lawyers in the US. Most are not members of the legal establishment. Generally that means large law fims or smaller elite law firms, law schools (especially Harvard, Yale, Chicago, Stanford and a few others), senior counsel at corporations, federal judges and a few others.

It does not generally mean solo practioners or small non-elite firms whether in big cities or small towns. It does not generally mean those in low status areas likecriminal defense lawyers (except high priced white collar specialists), divorce lawyers and personal injury lawyers (except perhapos the big class action specialists.

I don't think the concept of an "Establishment" is that esoteric.

Stimson stepped on toes and is making the appropriate mea culpa now.
1.17.2007 10:02am
Colin (mail):
Elliot123,

From everything I have read, there are good arguments on both sides of the question. So, I have to ask why these lawyers are all on the side of extending full rights to the prisoners.

Because there is no role for private lawyers who wish to take the opposite side in these cases. The government does not need, or want, the assistance of a private firm lawyer. It provides its own experienced legal counsel.
1.17.2007 10:18am
JunkYardLawDog (mail):
Kovarsky,

And I didn't think you'd get anything correct in this thread. Proved me wrong.

Says the "Dog"

Steve, you confuse the personal statements of a private citizen who happens to work for the government with a punitive government policy that actually enforces some restriction upon the speech of private lawyers.

Your construct is a complete falsehood and strawman. There is no such government policy enforced against the speech rights of private lawyers. Further, Stimson's private speech did not even advocate a limitation upon the speech right of private lawyers.

The really hilarious stuff is that you and Kovarsky believe the crap you're pushing through and through.

Says the "Dog"
1.17.2007 12:42pm
Elliot123 (mail):
Kovarsky: What makes you think the lawyers want to "change the system?" presumably they only want to uphold the system, i.e. the constitution.

I have no reason to make that presumption. There is a vast difference of opinion on what is covered by the system. Are prisoners picked up by the US military anywhere in the world covered by the US constitution and the rights it provides? If so, was this the case in all past wars?

I'd say that question is insettled, and the lawyers in question are trying to move the whole system in the direction which will benefit the folks who want to kill us. The change is settling the question in favor of the folks who want to kill us.

That's their own business and it is their right to advocate for such change. And it's perfectly OK for the rest of us to pass over those firms because we think the political direction they advocate will result in more American deaths.

Coln: Because there is no role for private lawyers who wish to take the opposite side in these cases. The government does not need, or want, the assistance of a private firm lawyer. It provides its own experienced legal counsel.

I agree the government has its own legal staff. But I wonder if we have seen friend of the court briefs from the folks at these firms? Since those defending the prisoners are advocating political change, I wonder where the people from those firms are who oppose such change. Or maybe even an open letter from 50 law school deans? (Quick test for the non-lawyers here: Name one law school dean.)

It's interesting how lawyers want to tell the rest of us which evaluation criteria are proper in hiring them.
1.17.2007 5:27pm
Mary Katherine Day-Petrano (mail):
Of course the difference between attorneys who represent Guantanamo detaineses and those who might think about representing disbaled people by invoking the ADA, is at least the Guantanamo retaliation has been outed. The situation for disabled people is much worse.
1.17.2007 10:53pm