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Defend Detainees, Suffer Consequences?

As reported in this Washington Post editorial (LvHB), a high-ranking administration official recently suggested that major law firms may have to choose between allowing their attorneys to do pro bono work for Guantanamo detainees and retaining high-profile corporate clients. No joke. In a radio interview, deputy assistant secretary of defense of detainee affairs Cully Stimson noted that a "major news organization" submitted a Freedom of Information Act request to learn the identities and law firms of attorneys representing detainees. He continued:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out. (Emphasis added.)
After this suggestion that such pressure should be encouraged (Query: Is this official administration policy?), the Post reports Stimson intimated some firms could be receiving payment for their work on behalf of detainees from nefarious sources.
Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are 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." (Emphasis added.)
Mr. Stimson may well have been shooting from the hip, rather than expressing official policy. Either way, the administration should disavow his statements.

It is wrong to attack law firms because their attorneys do pro bono work on behalf of unsavory defendants. All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to judicial process, and it is wrong to impugn attorneys on the basis of the clients they represent.

I would think this administration could appreciate this principle. When left-leaning activist groups attacked administration judicial or executive nominees on the grounds some had worked for unsavory clients, the administration correctly responded that it is wrong to attribute a client's position to his or her attorney, and that nominees should be judged upon their professional qualifications, rather than the political appeal or moral caliber of their former client base. As Lee Casey and David Rivkin explained a few years back in Policy Review:

Whether based on the belief that lawyers were above, or below, the fray, and if sometimes honored in the breach rather than in the observance, our society has permitted lawyers to ply their trade without ultimately being blamed or punished for the clients they have represented. This “immunity” is, in fact, essential to the operation of a neutral legal system, which assumes that there are two sides to any question, presupposes that all parties ought to receive a fair hearing of their case, and depends upon lawyers to articulate the relevant legal principles so that disinterested judges and juries can fairly resolve the issues presented.
Folks seem to understand this at the Justice Department and the White House Counsel's office, but I guess Stimson didn't get the memo.

If all the detainees are as guilty as some claim, the administration should have nothing to fear if all detainees receive a vigorous legal defense. Instead, an administration official is suggesting law firms should be punished if their attorneys help detainees. What purpose could this serve, other than to discourage capable and zealous representation for detainees? Back to the Post:

it's offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

UPDATE: Paul Horwitz comments on PrawfsBlawg (also posted at Dorf on Law)

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. I would have thought that Mr. Stimson, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.

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Defending Guantanamo Detainees:

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

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

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

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

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

(3) But it seems extremely unlikely that those lawyers who represent Guantanamo detainees do so because they support jihad against America. Rather, I take it that they are doing this chiefly because they think that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren't really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believe that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides.

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

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

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

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

It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.

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

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

* * *

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

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Discouraging Detainee Defense:

Paul Horwitz notes that the issue of which law firms are defending detainees also made it into a Wall Street Journal column by Robert Pollock on "The Gitmo High Life." The bulk of the column discusses the relatively comfortable treatment at least many of the Guantanamo detainees receive. Yet the article also picks up on the suggestion of an "administration official" that law firm representation of detainees should be a "scandal."

Guantanamo detainees don't lack for legal representation. A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms: Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb; and Blank Rome are among the marquee names.

A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500. "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined.

This article should remove any doubt about the meaning of Cully Stimson's remarks and make absolutely clear that at least some within the administration are encouraging corporations to pressure law firms not to represent detainees.

This audio segment from NPR (LvHB) is also worth a listen, and the New York Times chimes in here.

UPDATE: This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially.

In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” he said.

Neither the White House nor the Pentagon had any official comment, but officials sought to distance themselves from Mr. Stimson’s view. His comments “do not represent the views of the Defense Department or the thinking of its leadership,” a senior Pentagon official said. He would not allow his name to be used, seemingly to lessen the force of his rebuke. Mr. Stimson did not return a call on Friday seeking comment.

I have also noticed that Stimson is a graduate of my alma mater, the George Mason University School of Law. [Ack!] I guess he must have slept through professional responsibility; he should have to take it again. Hilzoy is less forgiving: "if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred."

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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.

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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.

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Defending Detainees in WWII:

Eric Muller has an interesting post on Is that Legal? on the representation of Japanese detainees in World War II. It provides some interesting historical perspective on the Stimson flap. Notes Muller, "In World War II, the federal government and the American Bar Association explicitly called on American attorneys to undertake the legal representation of internees of Japanese ancestry -- citizens and aliens alike."

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Stimson Apologizes:

In a letter to the editor, published in today's Washington Post, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimon aplogizes for his remarks last week:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. 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.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

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.

For news coverage of the apology, see these stories from Reuters and the Post.

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Vilification of Attorneys in Detainee Cases:

In the wake of the Cully Stimson flap, former Solicitor General Ted Olson and Georgetown's Neal Katyal co-authored a Legal Times commentary urging both left and right to tone down their attacks on lawyers who represent unpopular or "politically incorrect" clients. Olson and Katyal lament that attorneys on all sides of terrorism-related cases have been vilified for their work, and observe that the adversarial system of justice depends upon the vigorous advocacy of popular and unpopular causes alike.

The well-deserved criticism of Stimson’s remarks has thus far not encompassed another disturbing trend: the vilification of government lawyers involved in the war on terror. Some star law school graduates have recently been warned that going to the Justice Department to work on terrorism cases or terrorism policy might harm their long-term careers. Some individuals have taken to calling former Assistant Attorney General Jack Goldsmith, now a Harvard law professor, a war criminal for the advice he gave the government about detention policy. Others have sought to block Assistant Attorney General Peter Keisler from a D.C. Circuit judgeship in part because he personally argued a Guantánamo case in a federal appeals court. These personal attacks have a corrosive effect on the practice of law and on the ability of the government to get the most thoughtful legal advice.

With the war on terror, which unfortunately may go on for generations, America doesn’t have any margin for error. The legal issues that surround this war are enormously intricate and don’t lend themselves to sloganeering-based solutions. When government officials are called “war criminals” and when public-interest lawyers are called “terrorist huggers,” it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

Attorneys should not be above criticism, they argue, but criticism should focus on "the merits of the particular position being argued rather than personally on the advocate." I would add that there is a difference between criticizing a lawyer for the way she represents a client — that is, the arguments made, defenses raised, etc., — and attacking the mere fact of representation. Likewise, an attorney's obligation to engage in zealous advocacy on behalf of his clients does not require him to make frivolous or false arguments.

A final note: Olson and Katyal have represented opposing sides in detention-related cases. Their agreement here is significant.

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SF Bar Seeks Stimson Inquiry:

The San Francisco Chronicle reports that the Bar Association of San Francisco will file a request with the State Bar of California that it invetigate whether Cully Stimson violated the rules of professional responsibility with his remarks about private law firms that represent Guantnamo detainees. According to the story, Stimson is licensed in California. While I have been quite critical of Stimson, I am skeptical that this investigation will produce any formal sanction against Stimson. (LvHB)

UPDATE: I think it is worth quoting Northwestern law professor Steven Lubet from the comments below:

The bar investigation of Stimson is a manifestly bad idea. While it is not frivolous to suggest that his conduct was "prejudicial to the administration of justice," a disciplinary proceeding will still do more harm than good. If anything, Stimson's remarks prompted the Attorney General to defend publicly the principle of universal representation, which is a good thing.
This sounds about right to me.

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Stimson Resigns:

The Associated Press is reporting that Cully Stimson resigned today "over controversial remarks in which he criticized lawyers who represent terrorism suspects." According to the report, Stimson "made his own decision to resign and was not asked to leave by Defense Secretary Robert Gates." According to a Defense Department spokesman, Stimson beleived the controversy over his remarks "hampered his ability to be effective" in his position at the Department.

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