Colonel Davis Versus Cully Stimson - Continued:

Cully Stimson provoked legitimate outrage because he sought to encourage sanctions against private attorneys for the mere fact they represented military detainees. His remarks were contemptible because they struck at the principles upon which the American justice system depends. Colonel Davis, on the other hand, criticized a military officer (in a different service) who is serving as a detainee's defense attorney for specific conduct — public statements to the Australian press about the U.S. government's conduct. Regardless of whether Col. Davis' criticisms of Major Michael Mori are correct on the merits, his remarks are not comparable to those of Cully Stimson.

As the comments to my last post indicate, some disagree. Mark Kleiman is outraged by Colonel Davis' comments, likening the Gitmo prosecutor's remarks to Stalinist persecution of political dissidents.

Back in the Stalinist days of the Soviet Union, someone could be held in prison without charges for five years, tortured, and then charged under a law that hadn't even been passed when he was picked up. If he ever got a trial at all and his defense attorney, in the course of defending him, dared to criticize the Party Secretary or the Defense Minister, the prosecutor could charge the defense attorney with "using contemptuous language toward high officials," a charge for which the defense attorney could be sent to prison.

Aren't you glad we don't live in such a country?

Oh, wait ...

I think the comparison is more than a bit overwrought.

Major Mori is not a private defense attorney, or even a public defender. He is a military officer. As such, he is bound by the military's code of conduct, whether or not he's representing a detainee or anyone else. Thus, he does not have the same freedom to fly around the world giving press conferences and stirring up political opposition to the prosecution of his client as do private attorneys — but this was true before he started representing alleged enemy combatant David Hicks. The limitations on what Major Mori can say are a consequence of his being a military officer, not his participation in this case. Defense attorneys remain perfectly free to criticize their government and public officials without fear of government retribution. I agree with Kleiman that military commissions are less hospitable to defendants than civil courts, and I am willing to believe that the charges against David Hicks may be overstated, but that doesn't make Col. Davis' recent comments tantamount to Stalinist persecution.

While I am willing to give Col. Davis a clean bill of health for his latest remarks, it appears Davis said some things last year that may have put him in Cully Stimson territory. As reported by Tony Mauro in the Legal Times last March, at a press conference in Guantanamo, Davis said it was "ironic" that the same law firms that represent corporations with large defense contracts were also doing pro bono work for detainees.

The nearly united front among the nation's legal elite against the White House has not gone unnoticed by the administration. In remarks at a press conference at Guantanamo Bay Naval Base earlier this month, the Defense Department's chief prosecutor for the military commissions there, Air Force Colonel Moe Davis, said it was "ironic" that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guantanamo detainees pro bono.

Miami lawyer Neal Sonnett, the American Bar Association's observer in Guantanamo, said when he heard the comment he took immediate exception, saying at a press conference that if it was meant to intimidate law firms, "it was beneath Colonel Davis' rank and status."

Sonnett, a former president of the National Association of Criminal Defense Lawyers, added, "These lawyers and their firms are true patriots."

Some who heard Davis' remarks thought he was referring specifically to Perkins Coie, the Seattle firm that has represented Hamdan from the beginning of his challenge to his detention in 2004. Perkins Coie is one of several law firms employed by Boeing, and one of the firm's lawyers will be at the counsel table when Georgetown University Law Center professor Neal Katyal argues Hamdan's case before the Court.

"If it was directed at us, it was out of line," said Perkins Coie partner Harry Schneider Jr., who has taken the lead in the firm's representation of Hamdan. Schneider said the firm has never heard negative feedback from any client about its representation of Hamdan.

Obviously there may be more to what Davis said last year, and it would be important to judge his remarks in context. (Stimson's comments, it should be noted, acutally looked worse when placed in their full in context.) Nonetheless, it seems that Col. Davis may have pulled a Cully Stimson before Cully Stimson did. If so, these earlier remarks — rather than his recent comments — are what is worthy of rebuke.