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January 16, 2007

We're All For Freedom Of Information...

...Except when it's about us. Fire up the Outrage-ometer.

The half vast editorial staff has been watching, with a fair amount of amusement and no little degree of schadenfreude, various blawgs go have conniption fits over this admittedly disturbing story:

Last Thursday, January 11, Charles "Cully" Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, suggested in a radio interview that U.S. companies should boycott law firms that represent detainees held at the U.S. military prison at Guantanamo Bay, Cuba.

The comments evoked instant criticism from almost every part of the American legal community, and were disavowed on Saturday, January 13, by the Pentagon.

In this column, we want to look at three interrelated issues. First, we want to look more carefully at how Stimson's comments came about, and suggest that they were actually the first steps in an effort to create a "blacklist" of elite law firms doing work in Guantanamo Bay. Rather than making a rogue comment, as the Pentagon's disavowal suggests, it seems Stimson revealed an ongoing endeavor in which others have joined with him.

Second, we want to argue that this kind of blacklisting is always wrong, and not just when the government writes the list.

Third, and finally, we want to offer an illustration from the McCarthy era of another elite firm that offered legal representation when the government was creating real blacklists. Our history, we argue, shows us that the firms attacked by Stimson should be celebrated--and the White House should be ashamed of itself.

Yes. Shame... shame on the Wall Street Journal for publicizing information that, according to Mssrs. Seebok and Waller:

...is not a secret. The firms are justifiably proud of their work, and are trumpeting their involvement, rather than hiding it from their current and future clients.

If the firms involved are, indeed, already "trumpeting their involvement" then where is the perceived harm from releasing a formal list of firms who defend Gitmo detainees on a pro bono basis? By the authors' own admission, publication of such information should be not only "largely unnecessary" but redundant. One might even argue these firms should regard it as free advertising, but such an argument requires one to swallow the authors' disingenuous premises whole: something that strains the credulity of even the most naive reader.

The answer is simple: these firms may be "trumpeting their involvement", but not to their corporate clients. Otherwise they should have no reason to fear disclosure of their activities. In fact, if they deem this work to be a public relations bonus they should welcome the government's efforts to publicize activities they believe will enhance their reputation in the eyes of their corporate clients.

To shore up a shaky argument, the authors seque into an anecodote that, upon inspection, proves to have little relevance other than the now-obligatory invocation of the McCarthy bogeyman. The hero is not a prestigious law firm (as the firms representing today's Gitmo detainees are) but a small, struggling one. It refuses to represent admitted communists, nor those who will take the Fifth against their country: in short, it is interested in defending only those who maintain they are innocent and profess loyalty to their country.

These are hardly trivial differences. But in the world of prestigious law firms (and apparently the one the authors of this article inhabit), the ethics of their prospective counsel are a matter far too complicated for mere clients to contemplate. Therefore, even information "trumpeted" by big law firms must be concealed from foolish clients lest they make ill-advised decisions that negatively impact the bottom line.

Pro bono work always has a cost, and if such work must be done in a secretive manner to avoid the risk of losing valuable clients then perhaps that cost should be figured into the risk-benefit calculation. The authors seem to argue, paradoxically, that it is already widely known that these firms are defending Gitmo detainees. They argue, quixotically, that these prestigious firms are "trumpeting" this joyous news because they value this good work and are genuinely proud of it.

If this is so, and it is already widely known by their corporate clients, there would seem to be little risk attached to further publication of the "good news". But the more likely story is that these prestigious law firms have publicized their pro bono work only within legal circles where such news will be well received, and not at all within the vastly more conservative business world where it will not be greeted as warmly. Otherwise, why object to what amounts to free advertising of an activity they maintain is a mitzvah?

Don't get us wrong. The half vast editorial staff finds the spector of public servants appearing to apply economic pressure to private entities as unsavory as the next person, and the Pentagon was right to distance itself from Herr Stimson's latest folly. But the authors' argument is absolutely ludicrous and we're not buying it. Corporate American has no need to be "protected" from information about the law firms it hires. Check your patronizing snootiness at the door - if defending accused terrorists is important to you, do it and accept the risks, but don't blame others if they don't condone your behavior and don't want to do business with you. People are dying every day to ensure the right to freedom of information and other Americans have just as much a right to their opinions as you do to yours.

Via Howard Bashman

Posted by Cassandra at January 16, 2007 07:31 AM

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Comments

"The half vast editorial staff finds the spector of public servants appearing to apply economic pressure to private entities as unsavory as the next person..."

I trust you'll join me in my plan to abolish the IRS and move to a purely voluntary mode of taxation, then?

Posted by: Grim at January 16, 2007 09:15 AM

I see a fundamental difference between taxing the citizenry to pay for things of mutual benefit to all, like a standing army, and a public servant using his office to suggest that the federal government should publish lists of who businesses people should and should not do business with (if that even is what this gentleman did).

I think public servants can have opinions on what people ought, as citizens, to do but those opinions ought to remain private, as my husband's opinions do.

If this opinion is that of the Pentagon or the Bush administration, well, that is a different matter. But it doesn't seem that this was the case since it was quickly disavowed. So he really shouldn't have said it. And I don't think it was proper in any case. But I find the argument of the two lawyers who wrote the article - that it is somehow "improper" for the Wall Street Journal to talk about who is doing pro bono work on behalf of suspected terrorists because this might "disincent" them from doing such work even though they're "trumpeting" their work and "everyone already knows" they're doing it - to be utter rubbish.

Let's face it - these are the same jerks who argue it's OK to publish classified info on the front pages of the NYT. They are all FOR the free flow of information, except if it hurts them. Bull.

Posted by: Cassandra at January 16, 2007 09:32 AM

Yeah..it was their lawyers who held their communications between detainees as priveleged that allowed three of them to commit suicide.
More representation like that is what is needed.
After all, a few of their clients offing themselves just makes their case against the US stronger, right?

And on that level of snark I am going to bow out of this discussion. While I see the need for people to have access to counsel, there are some things that hit a little too close for me to be objective.

Posted by: Cricket at January 16, 2007 09:39 AM

A note to younger readers. The leftist whine about "McCarthyism" refers to a period in the 1950s where the United States Congress discerned that our enemies were infiltrating the centers of power (government) and influence (entertainment) in our country.

Predictably, the accused communists denied, lied, smirked, and generally strutted about with smug self-satisfaction.

Leftists wore McCarthyism as a badge of honor for several decades.

Until the Soviet Union fell, and we obtained access to KGB files which proved that America was in fact infested by communists in high places.

One particularly smarmy communist, one Alger Hiss, insisted to his dying day he was the victim of "right wing smear." But as we all know, the KGB records later showed that Alger Hiss was in fact a communist spy.

Keep this in mind when modern-day figures invoke the tired whine of "McCarthyism." And remember, it's not a "smear" if it's TRUE.

Posted by: Geoff at January 16, 2007 09:52 AM

'Ware the stuffed marmoset, you civil servants, you!

Posted by: John of Argghhh!!! at January 16, 2007 09:53 AM

Update: You can find a wikipedia on Alger Hiss. I assumed it was an open-and-shut case, but according to that article, there are still many who maintain that the KGB files on Alger Hiss are unreliable, or have been misinterpreted.

So I amend my claim. It hasn't been firmly proved that Alger Hiss was a communist spy. Researchers have presented evidence both for and against this view.

Posted by: Geoff at January 16, 2007 10:04 AM

I am of the opinion that Alger Hiss was a spy, why else muddy the water. However, while I believe that the detainees at Gitmo are entitled to a 'fair' trial, right now it is being tried in the court of public opinion, which some people think we are too idiotic to determine for ourselves what we need.

If I am going to prosecute someone, I want a shark who grabs the jugular and their 'nads and won't let go for a better grip because there isn't one.

And if the best the defense can let them do is kill themselves, let 'em. What kind of a recommendation is that? Oh, my client committed suicide in order to show the world...what?

Which looks kind of stupid when you think about it. His client isn't there to tell why.

Posted by: Cricket at January 16, 2007 10:55 AM

You need to take anything at Wikipedia with a huge grain of salt - anyone can edit any entry, so you never know the quality of the information, or what kind of slant/motivation the poster of said information might have...

Posted by: Miss Ladybug at January 16, 2007 04:06 PM

Anyone interested in researching the degree to which the U.S. government was infiltrated by Communist spies and sympathizers should study the Venona Project. For good measure, consider the inestimable damage to national security by convicted spy Aldrich Aames.

The American left continues to be influenced by the communist party and Marx/Engles writings. Aldrich Aamers was convicted of perjury for lying about being a currier for Russian handlers.

Posted by: vet66 at January 16, 2007 05:48 PM

When you were reading the findlaw article, didn't you notice that the complaint was not about the FOIA request, or this info being known? the complaing is about the blacklisting or boycotting of these lawyers. I would think that for those still unconvinced on this whole matter, charles fried's pronouncements would be sufficient:

http://www.law.harvard.edu/news/2007/01/16_fried.php

Posted by: actus at January 16, 2007 10:04 PM

Yawn... What did I miss?

Was there ever a boycott?

Or a blacklist?

Oh yeah. There *wasn't* one, was there?

Just a suggestion. These fools are getting their underwear all in a knot over the horrible, horrible power of SUGGESTION. Because, you know, KKKarl Rove and his Pentagon mind-control rays can make Corporate America do anything they want to.

Posted by: Cassandra at January 16, 2007 10:19 PM

Last Thursday, January 11, Charles "Cully" Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, suggested in a radio interview that U.S. companies should boycott law firms that represent detainees held at the U.S. military prison at Guantanamo Bay, Cuba.

The comments evoked instant criticism from almost every part of the American legal community, and were disavowed on Saturday, January 13, by the Pentagon.

Posted by: Cassandra at January 16, 2007 10:22 PM

'Oh yeah. There *wasn't* one, was there?'

The problem is about this guy's calls for one. You noticed that right? That thats what whats got people from all over the spectrum worked up. Its not about the FOIA issue. I don't know why you blogged that. How did you come to that conclusion? How did you come to the conclusion that the problem is publicizing this information?

Posted by: actus at January 16, 2007 11:32 PM

She didn't say that it was a FOIA issue, only that it seemed odd that these law firms would be more...shall we say...up front about their pro bono work and they aren't? Could it be that defending them now that the truth is coming out about their connections to alqaida is not pc?

I would like to know who is defending them.

She also mentioned the POWER OF SUGGESTION in his calls for a blacklist. You do read, don't you?

Posted by: Cricket at January 17, 2007 12:14 AM

"She also mentioned the POWER OF SUGGESTION in his calls for a blacklist"

I didn't quite know how to deal with that kookyness. He made a ridiculous suggestion, which lots of people have pointed out the ridiculousness of, and the pentagon has distanced themselves from this guy's statement. And thus the rule of law prevails. And so does scooter libby's choice of a lawyer, by the way.

Posted by: actus at January 17, 2007 12:23 AM

"She didn't say that it was a FOIA issue"

The headline talks about freedom of information...Talks about the 'shame' on the WSJ for publicizing this info.. Thats not hte problem. Its not hte publicizing of this info that people have a problem with. It's the using -- or the suggestion of using -- this info for blacklisting.

Posted by: actus at January 17, 2007 12:35 AM

Big corporations give money to public interest groups, which in turn use that money to support more regulation, interfere with development and progress and push socialist agendas.

Now they support law firms that openly and for "free" (I would forgive them if they were paid) represent terrorists.

It is true that some of them are very public about their representation, at least in Atlanta they are. I have seen some big name/big firm attorneys in legal papers and mags bragging about it.

I'm not advocating anything. But if I were a big company CEO, and I had my choice of big firms, ceteris peribus, I would rather use those that didn't sue against my interests or represent terrorists.

Posted by: KJ at January 17, 2007 11:11 AM

KJ,

I think that is very un-enlightened of you, and just a simple comment such as "not advocating anything, but" can get you in big trouble, with the Right People. Hey, blacklists and hearings on Un-American Activities is just a hop, skip and a jump away; KJ, are you some kinda McCarthyite wannabee? Your marmoset priveledges will be taken away if you continue in this anti-social vein. Is there a PO Box or a place that I can send money to the al Qaeda Legal Defense Fund?/okay, that was sarcasm.

What is truly appalling, IMHO, is that there is no effort by ANYONE that I know of to provide Pro Bono representation to Marines or Soldiers "accused" of wrongdoing on the battlefield. But there are honest people trying to raise money for them.

(By the way, what ARE marmoset priviledges? Just axin', ya know?)

Posted by: Don Brouhaha at January 17, 2007 11:22 AM

There are civilian attorneys providing pro bono representation for the accused Marines (the implication is that their military counsel is inadequate, which I'm not sure is the case, but on the otter heiny I was also told that in order to prepare an adequate defense counsel would have to travel to Iraq and spend months interviewing witnesses and I really don't see how an active duty lawyer could possibly do this). And I haven't seen any ads by prominent law firms bragging about how they're representing the Haditha Marines.

And I remember how incredibly (*&^ rude several firms I called were to me when I called just to ask questions on behalf of one of the Haditha wives. I am not easily rattled and I was so angry that I cried for an hour after talking to one of these jerks. Certain attorneys who infest this site, on the otter heiny, were patient and kind and answered a lot of very stupid questions from me, something I will never forget since it isn't their job to dispense free legal advice to confused Blog Princesses.

Posted by: Cassandra at January 17, 2007 11:34 AM

So, actus, following your line of thinking, if I think you are an a$$hole and suggest that Cassandra ban (blacklist) you from this site, I can then conclude that it will have already occurred?

Posted by: Sly2017 at January 17, 2007 12:03 PM

Thanks Blog Princess, I knew you would plumb these murky depths for those of us too stupid and lazy to look for ourselves.

Are there really attorneys that infest this site? :)

Since these days I know few lawyers (and my life and my wife's life are better for it, as she used to be a legal secretary and her life was 'infested' with lawyers), I really have no trouble feigning ignorance of legal matters. And I doubt that you asked 'stupid' questions.

Posted by: Don "too stupid to be a lawyer" Brouhaha at January 17, 2007 12:08 PM

Are there really attorneys that infest this site?

Well, not nearly enough of them, and not nearly enough of the time :) But we take what we can get, billable hours being what they are...

Posted by: Cassandra at January 17, 2007 12:13 PM

Cass, I like to think that *our* attorneys are good hearted gentlemen. Of course they would
help out a damsel in distress, especially when
so much is at stake. I have come to respect the profession even more after hearing this.

Posted by: Cricket at January 17, 2007 12:40 PM

"So, actus, following your line of thinking, if I think you are an a$$hole and suggest that Cassandra ban (blacklist) you from this site, I can then conclude that it will have already occurred?"

It would seem taht you are not following my line of thinking at all.

"What is truly appalling, IMHO, is that there is no effort by ANYONE that I know of to provide Pro Bono representation to Marines or Soldiers "accused" of wrongdoing on the battlefield."

Don't they have military counsel already? Is that inadequate? One of the gitmo guys was defendend by military counsel.

Posted by: actus at January 17, 2007 03:35 PM

Actus, I don't care. Freedom of association, eh. Unless you can show me an actual law or regulation penalizing these firms, STFU. And, oh BTW, I never manage to follow the insanity that you call thinking very well. I just know what to do when it's a danger to those I DO care about.

"They only helped the murderer with counsel's best advice,
But -- sure it keeps their honour white -- the learned Court believes
They never give a piece of plate to murderers and thieves."


Rudyard Kipling, "Cleared"

Posted by: SDN at January 19, 2007 11:59 PM

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