Just Above Sunset
Volume 5, Number 10
March 11, 2007

As seen from Just Above Sunset -

"Notes on how things seem to me from out here in Hollywood..."

First Draft

Saturday, January 13, 2007 - Appalled Attorneys - The Administration Calls for a Boycott of Major Law Firms

This is the curious case of Charles D. "Cully" Stimson - a former federal prosecutor in Washington, previously specializing in felony domestic violence and child abuse cases, before moving over to the Pentagon to oversee the whole military detainee program.  How his background and expertise pertains to how we deal with those we hold at Guantánamo Bay and, one assumes, secretly and off the books at similar places all around the world, is a bit puzzling, although there may be parallels somehow. He knows about abuse and violence, and the youngest detainee at Guantánamo Bay was ten years old when tuned over to us.

In any event, he now has his crusade -

The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation's top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms' corporate clients should consider ending their business ties.

The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.

It comes down to this -

I think, quite honestly, when corporate CEO's see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEO's 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.

Of course the administration wants to see that play out. Imagine a lower Manhattan "white shoe" law firm, involved in registering some big bank's latest financial instruments with the SEC, so the bank can get new investors to buy derivatives of derivatives of derivatives or some such thing - and suddenly they take their business elsewhere. The quality of the "blue sky" work has been superb, but some attorney somewhere in the firm has been doing pro bono work for people accused of very bad things. The administration is hoping the outraged CEO of the bank will just stop all business with the famous and devastatingly competent law firm - for allowing a few of their hundreds of attorneys to help defend the bad guys.  If enough CEO's do this the word will be out there - provide pro bono help to the accused and you're going down. If this works, the bad guys will have no legal representation at all - a win for America. 

You can imagine Cully grinning.  The "instant torrent of anger" from the bar associations and ethics people, and from the "play by the books" lawyers, can be dismissed by saying these people want America to lose the War on Terror, and they not so secretly hate America and don't care if we all die.  It's worked before. It should work now.

David Kurtz, the attorney who provides weekend commentary at Talking Point Memo, is not impressed -

The Administration has already done virtually everything possible to deny detainees any hope of justice. Encouraging boycotts of the law firms representing detainees is an effort to close off any last chance that the detainees will be treated in accordance with Anglo-American legal standards.

Each of us will mark our own low point of the Bush presidency. This is on my short list.

Of course it is - he's an attorney.  Others may just not get it.

But was Charles D. "Cully" Stimson just "speaking out our school" - doing a bit of random wishful thinking?

Kurtz thinks not.  This was carefully coordinated with what he calls the right-wing noise machine - 

The suggestion by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, that corporations should consider boycotting law firms who are doing pro bono work representing detainees at Gitmo, came after he received a FOIA request from conservative radio host and former Nixon groupie Monica Crowley seeking a list of all the lawyers and law firms representing detainees.

Who's she? See her MSNBC profile (with picture) - and she, PhD and all, loved Nixon, but not in the way the other Monica loved Bill Clinton. Anyway, the idea of the boycott seems to have started with her.  In the radio interview in question Stimson read from the list the Freedom of Information Act (FOIA) request produced for Crowley. He said expected the names of the lawyers and specific law firms would be a really big story in a few days -

I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there?' and you know what, it's shocking.

As for this particular Monica, it seems she recently went down to the eastern tip of Cuba and on her radio show marking the fifth anniversary of our opening that place and chucking all those folks in there, said - "We're there, we're fair, and we're not going anywhere!"

And if these guys lose their attorneys, that proves we're fair. 

Oh yeah, there's also a third player - the original New York Times item motioned a Robert Pollock opinion column in Friday's Wall Street Journal that cited the list that Monica Crowley obtained and attributed this quote to an unnamed "senior U.S. official" - "Corporate CEO's seeing this should ask firms to choose between lucrative retainers and representing terrorists."

No one is speaking out of school.  It does seem like a coordinated effort.

And Andrew Sullivan has his ear to the ground with this -

They've never really gotten along, have they? But the more you think about it, the threats of a Pentagon official, Cully Stimson, against lawyers doing a constitutional duty defending terror suspects speaks volumes about the core malice of this administration. Sources among the heroic community of pro bono lawyers who are defending some of the innocent and some of the guilty at Gitmo tell me that Stimson's comments are not isolated, that there has been a full program dedicated to the harassment of Gitmo lawyers - surveillance, petty harassment, pressure on their law firms. Now ask yourself: why would a government that has competently captured and detained dangerous terrorists not want good legal defenses for them to show beyond a doubt that they have been fairly detained? The Bush administration acts and sounds like a defensive police state when it comes to terrorism detainees. Maybe that's because, in many cases of completely unfair detention, they are.

Of course, there's one way to make amends: fire Stimson and end the campaign of harassment.

Fire the guy?  Yeah, when pigs fly.

The noted Denver defense attorney Jeralyn Merritt points to the two major editorials on the issue.

There's what the Washington Post has to say -

Most Americans understand that legal representation for the accused is one of the core principles of the American way. Not, it seems, Cully Stimson, deputy assistant secretary of defense for detainee affairs. In a repellent interview yesterday with Federal News Radio, Mr. Stimson brought up, unprompted, the number of major U.S. law firms that have helped represent detainees at Guantanamo Bay.

… Mr. Stimson proceeded to reel off the names of these firms, adding, "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.'

… 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."

But 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.

Oh, nothing much is shocking any longer, in spite of the outrage from the New York Times -

No one who has followed President Bush's policies on detainees should be surprised when a member of his team scorns American notions of justice. But even by that low standard, the administration's new attack on lawyers who dare to give those prisoners the meager representation permitted them is contemptible.

… The interview was a greatest-hits remix of Bush administration nonsense about Guantánamo, including Mr. Stimson's message to corporate executives that lawyers "are representing the very terrorists who hit their bottom line in 2001."

But then the only terrorists at Guantánamo associated with 9/11 were transferred there recently after being held for years in secret CIA prisons where no lawyer of any kind could enter -

Not only do we find Mr. Stimson's threats appalling, we differ with him about 9/11. The tragedy and crime of that day was that thousands of innocents were slaughtered - not that it hurt some companies' profit margins.

Jeralyn Merritt says it's just not about the money.  That's not the point -

Every person deprived of liberty or charged with a crime in the United States is entitled to competent counsel. If they can't afford counsel, counsel can be appointed. Under the Criminal Justice Act, these lawyers work for very reduced rates. But, Guantanamo is not in the United States, and the Government believes the right to free civilian court-appointed counsel does not apply to the detainees facing trial by military commission. The lawyers representing the Guantanamo detainees are mostly doing it pro bono, because the lawyers know it's the right thing to do. Large firms have allowed their associates to spend hundreds of hours on these cases, because they believe in the bedrock presumption of our criminal justice system, that all persons are presumed innocent until after trial, should a judge or jury declare them guilty.

The private lawyers and law professors representing the Guantanamo detainees are performing among the best work our profession has to offer. They do it to preserve the fairness of the criminal justice system, the system they work in every day.

Think of justice as a three-legged stool. The Judge is one leg, the prosecutor another and defense counsel is the third leg. If you overly weaken any one party's authority to try the case and perform their designated role, the stool will fall over and collapse. Our system would come crumbling down.

When two well-respected national newspapers declare the views of the Bush Administration's deputy supervisor of detainees "contemptible" we all should listen.

But then this is a minor story few will follow.  Few will listen.

Another attorney, Dahlia Lithwick at SLATE, sees a pattern in all this -

Why is the United States poised to try Jose Padilla as a dangerous terrorist, long after it has become perfectly clear that he was just the wrong Muslim in the wrong airport on the wrong day?

Why is the United States still holding hundreds of detainees at Guantanamo Bay, long after years of interrogation and abuse have established that few, if any, of them are the deadly terrorists they have been held out to be?

And why is President Bush still issuing grandiose and provocative signing statements, the latest of which claims that the executive branch holds the power to open mail as it sees fit?

Those are good questions.  And here's an answer -

Willing to give the benefit of the doubt, I once believed the common thread here was presidential blindness - an extreme executive-branch myopia that leads the president to believe that these futile little measures are somehow integral to combating terrorism. That this is some piece of self-delusion that precludes Bush and his advisers from recognizing that Padilla is just a chump and Guantanamo merely a holding pen for a jumble of innocent and half-guilty wretches.

But it has finally become clear that the goal of these foolish efforts isn't really to win the war against terrorism; indeed, nothing about Padilla, Guantanamo, or signing statements moves the country an inch closer to eradicating terror. The object is a larger one, and the original overarching goal of this administration: expanding executive power, for its own sake.

Then she dives into her detailed argument. It's worth a careful reading.

Whether you click on the link and considered that, or not, note her conclusion.

In a heartbreaking letter from Guantanamo this week, published in the Los Angeles Times, prisoner Jumah Al Dossari writes: "The purpose of Guantanamo is to destroy people, and I have been destroyed." I fear he is wrong. The destruction of Al Dossari, Jose Padilla, Zacarias Moussaoui, and some of our most basic civil liberties was never a purpose or a goal - it was a mere byproduct. The true purpose is more abstract and more tragic: To establish a clunky post-Watergate dream of an imperial presidency, whatever the human cost may be.

It seems Cheney, and now Crowley, are still ticked off about what happened to Nixon with Watergate. The battle to win back the power Nixon thought he should have, and lost, goes on, even if he's dead. The hoped-for boycott of the big law firms is just one more skirmish.

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