Posted by Jonathan Adler:
Defend Detainees, Suffer Consequences?
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168618003
As reported in [1]this Washington Post editorial ([2]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 [3]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.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/11/AR2007011101698.html
2. http://howappealing.law.com/011207.html#021189
3. http://fpc.state.gov/fpc/71957.htm
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