Today's Washington Post contains an Editorial with an ominous message for large corporate law firms from the Bush Administration: Represent accused terrorists and we will destroy your firm.
Cully Stimson, the deputy assistant secretary of defense for detainee affairs, stated in an interview on Federal News Radio:
Actually you know 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 [Freedom of Information Act] 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. The major law firms in this country ... are out there representing detainees.
Stimson 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.
Stimson's comments are clearly a not at all veiled threat to corporate law firms that the Administration will be "outing" them to their clients if they represent accused terrorists. In fact, like a good McCarthyite, Stimson named names during the interview, identifying the following firms, amongst others:
Pillsbury Winthrop
Jenner & Block
Bloomer
Cutler Pickering
Covington & Burling
Paul Weiss Rifkind
Mayer Brown
Weil Gotschall
Pepper Hamilton
Venable
Perkins Coie
Hunton & Williams
Fulbright & Jaworski
Going further, Stimson suggested that the law firms are being paid by terrorist organizations:
Federal Radio: Clearly the attorneys who are representing the terrorist detainees are being paid by someone, there must be an organization that is funding this representation. Who is that?
Stimson: Tt's not clear, is it? 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.
The Washington Post reacted correctly to Simpson's comments when it opined:
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.
And Jonathon Adler also reacted correctly when he stated on the Volokh site that:
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.
But, Stimson is probably correct. This is an issue that is going to balloon up on the right wing blogs and in the media in the coming weeks Stimson has been making the rounds in the right wing blogsphere and this appears to be an intentional campaign.
What has our country come to when the Executive branch is conducting a witch hunt against the most prominent corporate law firms in the country because they seek to help out detainees? The Administration has already released hundreds of detainees, so the notion that each detainee is a terrorist is clearly fallacious. Yet, in the bunker mentality that has infected the Executive Branch, we now see the Republicans turning on some of the most powerful business firms in the country.
This is a development that is well worth watching because it cannot end well for the Bush Administration. They have chosen to attack the wrong targets.
[Update: The backlash begins. Conservative darling law Prof. Eugene Volokh, who also happens to be affiliated with one of the firms on Stimson's hit list, Mayer Brown, fires back:
(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. ...
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
.
[SECOND UPDATE: Per "On the Bus's" post way way below at the end of the line, Sen. Leahy is calling on GW to condemn Stimson's comments and discipline him.]