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January 17, 2007

Behold The Power Of The Unfounded Allegation

Yesterday the half vast editorial staff addressed Cully Stimson's ill thought out suggestion that corporate CEOs think twice about doing business with law firms who represent terrorists. In response, commenter Actus made the following remark:

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 complaint is about the blacklisting or boycotting of these lawyers. I would think that for those still unconvinced on this whole matter, Charles Rried's pronouncements would be sufficient.

The FindLaw article specifically cited the Wall Street Journal's FOIA request as evidence of "a coordinated strategy" to attack large law firms who defend Gitmo inmates. Thus it was not just the suggestion that CEOs boycott law firms, but the release of this information that was objected to in the article we cited. When two authors use an event as evidence of some sort of conspiracy, it becomes fair game for discussion and analysis.

As they say, reading is fundamental. From yesterday's FindLaw article:

Here's the evidence that Stimson's January 11 comments in the radio interview appear to be part of a coordinated strategy to initiate an attack on "big firm" lawyers who were volunteering their time to detainees at Guantanamo Bay:

Just three minutes into an interview with the Federal News Radio, the conversation stalled out -- after a desultory discussion of the wildlife now occupying the empty portions of Camp X-Ray. After a pause, and not in response to any question, Stimson volunteered the following: "I think the news story that you are really going to see is this: As a result of a FOIA request through a major news organization, somebody asked, 'Who are the lawyers representing detainees down there?' And the results are shocking."

On January 12, the Wall Street Journal ran an Op Ed by Robert L. Pollock, a member of its editorial board, entitled, "The Gitmo High Life." Pollock noted that "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," and reported that "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 . . . appears to be subsidized by legal fees from the Fortune 500."

We suspect that the "major news organization" to which Stimson referred in his interview was the Wall Street Journal, and we suspect that the "senior U.S. official" to whom the Wall Street Journal's Robert Pollock spoke was Stimson.

Moreover, we suspect that all of this was part of an attempt by the White House to tell companies that they might want to consider taking their business to other firms that do not represent suspected terrorists.

Not only does this entire sequence of events have a transparently stage-managed aspect to it, the whole FOIA business was largely unnecessary, since the identity of the firms doing these cases 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.

Enter Actus, who takes us to task for mentioning the FOIA request at all:

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?

Perhaps that question is more properly directed to Mssrs. Waller and Sebok since they brought the subject up. We merely addressed what they wrote. The salient point here is that Waller and Sebok advanced several unfounded allegations in their article:

1. Allegation #1: 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.

- An ongoing endeavor? Is there any evidence this "endeavor" is still "ongoing"? If so, bring it on.

- One public servant made a suggestion that was quickly disavowed. End of story... or at least it would be if the legal community weren't still circulating outraged petitions and editorials in an effort to keep a story alive which should long ago have withered into well deserved obscurity. Does anyone really see corporate America marching in hypnotized lockstep to the sinister machinations of a Deputy Assistant Secretary of Defense for Detainee Affairs? Until all this fuss began, who had even heard of Cully Stimson?

- Any apparent authority possessed by Stimson vanished when a Pentagon spokesman disavowed his comments. If a military wife bristles at being told what to do with her business, the idea that American CEOs would meekly fall in line with comments made on a radio show is not just insulting, but ludicrous.

- In any event the government has no power to coerce private corporations who would, in any case, remain entirely free to do as they pleased.

- The real irony here is that most corporate CEO's would have remained blissfully unaware of Stimson's suggestion but for the huge fuss made over it by the legal community, who have gotten their collective pantyhose in a wad over an idiotic comment by an obscure public servant on a radio show. No matter how distasteful or inappropriate they may find his words, mere spittle-flecked references to the Shade of Joe McCarthy (who, as the authors with almost palpable irony are forced to recognize, lent his name to an era "when the government was creating *real* blacklists") can't conjure McCarthy-esque persecution out of thin air.

Putting aside the hysteria for a moment, let's take a sober look at the reality of the situation:

- Even had Stimson's inappropriate suggestion been adopted (which is extremely unlikely) it is not illegal, nor will it ever be, for private citizens to boycott firms whose practices or affiliations they disagree with. Surely the CEOs of America are smart enough to recognize the merit in the arguments made by these legal lights. Or do they contend their clients are narrow minded, ignorant bigots who can be easily buffaloed by a minor government functionary? Exactly what is the fear here? If their argument is inherently sound, any fool should be able to see it. If it is lacking on the merits then perhaps they do have something to fear. But then maybe in that case their clients have a right to know what they're doing and judge for themselves. You can't have it both ways: information is a good thing. Let people judge for themselves: that is the American way.

Allegation # 2: Second, we want to argue that this kind of blacklisting is always wrong, and not just when the government writes the list.

- What a dishonest argument for two lawyers to make. The government did not make, nor did it have plans to make, nor did it suggest making itself, any official list.

3. Allegation #3 (This one is a beauty - the 'White House' is behind it all): 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.

- What "others"? Do Waller and Sebok have the guts to openly name these "others" or are we just to understand they mean the White House? What is the ethical standard for throwing around accusations of this nature in a professional legal publication? Is any real standard of proof required, or is sliming by implication in the absence of any concrete evidence considered sufficient? Inquiring minds want to know.

- Where is the evidence the "White House" is behind all this? It's obvious - Stimson was an employee of the Pentagon. Right. And the White House has time to directly supervise and coordinate the radio interviews of every deputy undersecretary of every Cabinet-level department in the federal bureaucracy... because we all know that the Bush administration is a miracle of efficiency. Just ask its critics.

It's difficult to persuade anyone that a mere Deputy Assistant Secretary for detainee affairs speaks for the White House after the Pentagon has said his words "...do not represent the views of the Department of Defense or the thinking of its leadership" and the Attorney General of the United States has said, "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases." ... unless of course you happen to be two members of the legal community who require zero evidence to try and convict a sitting President in absentia, in the Court of FindLaw, without benefit of the excellent counsel they so ardently remind the American public is the right of even accused terrorists who aren't American citizens.

Two wrongs don't make a right, and the legal community does itself no credit with disingenuous rhetoric like that of Harvard Professor Charles Fried:

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. So, for instance, it is only the ideologically blinded who would criticize the great John W. Davis for having presented the case for school segregation to the Supreme Court in Brown v. Board of Education, or the ignorant who did not know that he had denounced the Ku Klux Klan and, as Solicitor General, had defended the voting rights of African-Americans.

It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony -- one to savor, not deplore.

Yes, Professor Fried. Perhaps that is it.

Or perhaps he has just noticed what I (and many other military people) have noticed: that accused terrorists in Guantanamo Bay are being represented by the best and the brightest of the American legal community.

How many of those same firms represent, pro bono, American servicemen and women accused of violating the rules of engagement while fighting on our behalf? Don't they deserve "zealous advocates" who are the "best, brightest and sleekest"?

Apparently not. Well, don't worry. As Professor Fried remarks, thanks to America's military men and women (who the elite law firms of America decline to defend pro bono), this is a free country and so he is entirely free to savor the fact that non-American citizens accused of trying to destroy our way of life enjoy the very best representation money can buy while those who volunteer to risk their lives in our defense do not.

That is, in and of itself, as eloquent a statement of the values of America's legal elite - the very folks who torture the rhetoric of free speech to bar military recruiters from speaking to their own students - as any we could name.

Update: More evidence that this was all a nefarious White House plot:

A Pentagon official who criticized large U.S. law firms for representing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, has apologized for his comments, saying that his discussion on a local radio program does not reflect his "core beliefs."

Get a rope.

Nevertheless, the piling on continues here, here, here, here,...

Gosh. We hope we didn't miss any of the outrage. We'll leave you to Google Senator Arlen Specter's furious denunciation.

Under the circumstances, we feel it only right to reissue our own Blanket Denunication Policy:

This Blog proactively denounced, spat upon, deplored, reviled, abhorred, and otherwise distanced itself in the strongest possible terms from all utterances, stances, or actions Known or Unknown (whether committed prior to your reading this, contemporaneously, or at times to be determined in the future) long before whatever may or may not have caused you to read this statement of policy either did, or did not, occur.

If we knew of it at the time, we now choose to ignore it. Such matters are really Beneath Contempt and we think it best not to encourage such uncouth behavior. If it occurred without our knowledge, we tried to exercise moral suasion. But "They" refused to listen and as little "L" libertarians we saw no force or fraud argument for forcibly stepping in to control Their behavior.

We only bring it up now because it is the duty of all reich-leaning blogs to constantly monitor everything said by all other reich-leaning folks. We are a community, and when even the smallest sparrow falls from grace we must all peck at it mercilessly lest we, too succumb to the fearsome rhetorical powers of Glenn Greenwald.

Posted by Cassandra at January 17, 2007 05:05 AM

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Quiet isn't it?

Posted by: Pile On® at January 17, 2007 12:21 PM

The sound of snoring...


Posted by: Cassandra at January 17, 2007 12:22 PM

What? You're hoping one of the lefty blogs links to you, unleashing an annoyance of moonbats unto your comments section?

Posted by: Patrick Chester at January 17, 2007 01:00 PM

Good heavens no.

As usual, most of the rest of the blogosphere doesn't even know I'm here, which is how I like it. I've read several articles on "how to get other blogs to link to you. I read them, and then I go out and don't do likewise :p

Posted by: Cassandra at January 17, 2007 01:04 PM

Actually, I had something quite pointed to say, but now the whole thing just makes me....sad.

Especially after reading your "here, here, here and here" links. I frankly fail to see how someone can proudly equivocate defending any American or legal resident, no matter how odious to some, with being proud of defending illegal, irregular combatants, who could be SHOT out of hand by the US under the Geneva Conventions (which does define non-uniform combatants). They aren't real POW's in the ususal sense. And I guess that's the part that makes me sad. I guess they (our heroic lawyers) are proud they are upholding something, but what that "something" is sort of eludes me. Granting Constitutional protections to these people is.....weird.

After reading Patterico's interviews with Stashiu (sic) last fall, the bizarre, deliberate mis-information about Guantanimo, etc., just continues to appall me.

Good writing though, Blog Princess.

Posted by: Don Brouhaha at January 17, 2007 01:04 PM

Well, I can understand how they can defend it. In their eyes, not all of the detainees may be guilty. And therefore, they deserve a defense.

That is a valid point. However they would have gotten a defense no matter what, and a competent one, through their appointed counsel.

What bothers me is the presumption (evidenced by the choices of top law firms) that the detainees are more deserving (or needful) of representation than the men who stand accused right now of violations of the ROE. This is where you see their values shine out as clear as day: evidenced by the choices they make.

Posted by: Cassandra at January 17, 2007 02:23 PM

I understand that the FOIA request is cited as evidence of a coordinated strategy. It is the supposed strategy, and more specifically, the statements of stimson, taht are wrong. Not the evidence. It is not wrong to book a room at the Howard Johnsons. But a room booking is evidence of a coordinated strategy to bug democratic offices at the Watergate.

This isn't hard to grasp. These attorney-client relationships are not secret. Attorneys are on briefs filed in court. Unless the government side has forced these briefs to be sealed, you could go look at them.

It is not awareness of these relationships that are a problem. It is the use of, and advocacy of the use of, this awareness for boycotts and blacklists. People raising a hoopla over this know this distinction, which is why they do not mind bringing awareness to this. Because it brings awareness to the important principle of zealous advocacy.

"- What a dishonest argument for two lawyers to make. The government did not make, nor did it have plans to make, nor did it suggest making itself, any official list.Where is the dishonesty? They did not say those things.

I think what you also miss is that there are incredibily important legal issues being litigated here. Setting quite a lot of important precedent. Beyond the individual cases present here. It is good for our rule of law system that the adversarial system, at the appellate and supreme court level, be handled by the best and the brightest. UCMJ litigation? Not much unsettled doctrine there. Aren't they getting JAG lawyers? don't they have a Gideon-like right to defense counsel?

But as to who deserves what? Thats not the question. Its not the question of what representation anyone deserves. Thats not really a question our legal system bothers itself with, besides the minimum standards for competency. That's America for you. Love it or leave it.

Posted by: actus at January 17, 2007 02:47 PM

It's like they equate "Nazis' marching in Skokie" or the KKK typically acting like the incendiary idiots they are, or something like that, to the detainees in Gitmo.

I make it more equivalent to defending SS guards who were at Treblinka. Yes, they deserve representatition at some level, but really. The Taliban were ruthless thugs at running Afganistan, and al Qaeda even worse. Stone cold killers, without remorse. Like that guy that Princeton admitted who was a spokesman for the Taliban government.
Juxtapose that with video I've seen of Taliban guys putting an AK-47 to the head of a woman in a Burka and pulling the trigger for some "offense" the women was guilty of under "Sharia", or whatever other excuse they made for it. I wonder who her lawyer was?

It just sorta rolls off of me; it hasn't hit me as personally as you or JHD (yet, I have two young sons). It just makes me sad, in terms of the country my kids will inherit from us.

Posted by: Don Brouhaha at January 17, 2007 02:55 PM

"I make it more equivalent to defending SS guards who were at Treblinka. Yes, they deserve representatition at some level, but really."

And the top Nazis got quite good representation. You see, in a rule of law system, we don't fear that. We actually rely on that.

Of course, thats all ignoring the fact that we *knew* the top nazis were bad guys. Not so much with some gitmo detainees.

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

Actus, do you even listen to yourself?

I think what you also miss is that there are incredibily important legal issues being litigated here. Setting quite a lot of important precedent. It is good for our rule of law system that the adversarial system, at the appellate and supreme court level, be handled by the best and the brightest.

Important for whom? And why?

Law is important because of the effect it has on individuals in instant cases. If you lose sight of that, Actus, you have truly lost your humanity.

If we ask men to put their lives on the line for this nation and then take the attitude you just did, that it doesn't really matter whether just results are obtained for American citizens who have put their lives on the line for this nation because you don't think the "legal issues" are sufficiently "important" I think we will not have much reason to be surprised when such men and their families suddenly find other things to do the next time the call comes.

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

Incidentally, Actus' quote (italicized above) is an open admission that he believes the results of litigation in an adversarial system depend on having the best available counsel yet he is perfectly content to see men quite possibly on trial for their lives get by with the "minimum standard for competency" because, you see, "the system doesn't concern itself with what people deserve", except when incredibly important issues are being litigated... like, the freedom of accused terrorists.

FYI: US military don't bother applying.

Posted by: Cassandra at January 17, 2007 03:17 PM

"Important for whom? And why?"

Our legal system. The extent of the AUMF? Thats very important. The separation of powers issues? The reach of habeas corpus? All very important to the war on terror, and some of it to our basic system of government. The detention schemes have led to quite a few supreme court cases. That ought to be an indicator of the importance of the legal issues raised by this.

Important because it sets precedent beyond instant cases, and beyond cases of other detentions. For example, the separation of powers principles between congress and the president were laid out in a case where the president seized steel mills durign a war. That case wasn't important just for that mill, or just for other mills, or just for wartime.

However, if you think that defense counsel provided to military defendants is so inadequate that they will not get just results, then we do have some important legal issues to consider. But I don't think thats the case. I don't think its the case that just results are not going to be reached here.

Posted by: actus at January 17, 2007 03:24 PM

Note that its not simply the results which depend on counsel. Its also the law that is made by the cases that is important. And we all have an interest in that law being the best and brightest law it can be. In our system, thats made by having the best and the brightest lock horns under the adversarial system.

Posted by: actus at January 17, 2007 03:28 PM

From "Israelinationalnews.com:"

"Neil Sher, a veteran of the U.S. Justice Department’s Office of Special Investigation, described a letter he received from (former President) Carter in 1987 in an interview with Israel National Radio’s Tovia Singer. The letter, written and signed by Carter, asked that Sher show “special consideration” for a man proven to have murdered Jews in the Mauthausen death camp in Austria." And there's more!

Well, I'm glad that someone was really looking out for the SS guys, poor things. Frankly, this is so coincidental and ironic, and you can't make this stuff up, either.

Actus, by the way, the steel mill in question was seized because of a strike that was deemed "unlawful" during wartime, to keep war materials flowing out of the mill. It wasn't some willy-nilly whim.

Everybody's always concerned when there is a 'separation of powers' issue; it's just that the reach of each branch usually exceeds their grasp, resulting in really bad precedents and case law. I could go on, but I'm too dumb to be a real lawyer, so I implore the learned Lawyers of Villainous Company to continue.

Posted by: Don Brouhaha at January 17, 2007 03:41 PM

In an adversarial system, if opposing counsel have unequal resources and an unequal amount of time to devote to the task, the clients (on one hand the People, on the other the Defendant) are not going to get the best result. And the resulting precedent will not, therefore, be the best it can be either.

Come on, Actus. Think.

Posted by: Sad Tire at January 17, 2007 03:41 PM

...unless of course you believe that a rigged contest produces the best result.

Which you obviously do.

Posted by: Sad Tire at January 17, 2007 03:43 PM

"Actus, by the way, the steel mill in question was seized because of a strike that was deemed "unlawful" during wartime, to keep war materials flowing out of the mill. It wasn't some willy-nilly whim."

Yes. I'm familiar with teh case. Its foundational to separation of powers. Why would anyone imagine it to be whimsy?

"In an adversarial system, if opposing counsel have unequal resources and an unequal amount of time to devote to the task, the clients (on one hand the People, on the other the Defendant) are not going to get the best result. And the resulting precedent will not, therefore, be the best it can be either."

I understand. It's partially why federal criminal defendants don't like to hear "The united states vs. ... YOU." Its a big thing, the united states!

If you think that the bush administration is not adequately arguing its legal positions, then we do indeed have a scandal. From what I have heard though, the people at the OLC and the solicitor's general office are quite good. Some of them have even gone on to be supreme court justices!

Posted by: actus at January 17, 2007 04:00 PM

Yes, and comparing a situation where accused Marines have assigned counsel who aren't dedicated solely to their defense and can't travel to Iraq, for instance, to depose witnesses the way civilian counsel can then there is a BIG difference. Not necessarily in talent or even dedication.

In RESOURCES. And by the way, I got this from civilian counsel for a previously accused Marine who took a case pro bono. And he owned his OWN practice, was NOT part of a big powerful law firm, and almost ruined his own practice because he was good enough to take the case, unlike the big powerful firms who have LOTS of resources and can easily afford to take cases like this but won't because, as you note, they aren't "important" enough.

Thank God some people in this country still give a damn.

Posted by: Cassandra at January 17, 2007 04:06 PM

I'm not surprised that the right counsel doesn't mean a right to all the resources required to mount the defense they'd like. I've heard of death penalties being defended by 3000 dollar budgets. Its a general feature of our justice system. And i'd say its a scandal. Yes. The criminally accused are horribly treted. The Warren court did make some gains against that, but there is plenty of progress left to go.

Sure, big powerful lawfirms could afford a lot. Cut back on some extravagant summer associate lunches and feed a few thousand in africa, for isntance. But they don't. And thats the american way.

Posted by: actus at January 17, 2007 04:14 PM

I wonder if any of these lawyers offered any pro bono work for a couple of border patrol agents the federal government went after?

Posted by: RIslander at January 17, 2007 04:57 PM

Why do the Marines involved in Haditha, for example, have civilian counsel and not JAG officers defending them? Who decides what kind of defense counsel they're entitled to?

Posted by: jpr at January 17, 2007 05:24 PM

They were assinged military counsel.

Their families, in many cases, were concerned that representation would not be enough and sought civilian representation. Whether or not that is a wise choice is debatable.

On the one hand, civilian counsel may well have more resources and can bring publicity and attention to their cases.

On the other, they generally (unless they have prior experience with the UCMJ) are not going to have as much experience pleading in military court and there are significant differences. If I'm not mistaken, even if they have civilian counsel, I think the accused still have access to military counsel but Army Lawyer would be a good resource for a question like that.

Under the UCMJ, accused military are entitled to military counsel as a matter of right. Whether they choose to retain additional counsel is their choice. The obvious problem is money.

Posted by: Obi Ven Cappuccino at January 17, 2007 05:29 PM

They have both jpr but the JAG defense has other duties required of them so they cannot head to Iraq to do the necessary leg work. Or the resources to do what needs to doing when their clients are charged on war crimes from a land so distant. The JAG prosecution doesn't have that same problem as they already have the in-country interviews and evidence at hand.

Lately you've also seen a bit of showmanship coming out of JAG by trying cases in the court of public opinion. That is where you definitely get into a civilian attorney's baliwick.

It is expensive to defend yourself even under an Art 32. I know a lot of the families involved and it is an unbelievable financial strain on them. Nothing like sending your son off to war, for the second and thrid time, and then destroying your financial security defending him for some political set of addendums. Yeah, yeah, I know. What until the evidence is presented before offering opinions but I am highly skeptical of any evidence offered by our own enemies against combat Marines. Regardless of the outcome the muj have already won a victory. Go figure!

There is so much off with this case that it is just simply wrong. Cleared on the ground at the time plus under OIF2 ROE it was SOP. Clearing buildings you are taking fire from can cause civilian casualties and that's a shame. Where the prosecution has to prove it's case is that these tragic casualties were premeditated. Or retalitory. Guess we'll see.

Posted by: JHD at January 17, 2007 05:41 PM

Is it apparent somewhere that, similar to some big firms doing pro bono work for gitmo detainees, there are *any* other law firms doing pro bono work for service members? Are some of the civilian counsel for the marines, again for example, doing the work pro bono or on a sliding scale? Is there really no one out there willing and capable to help out military members pro bono?

Posted by: jpr at January 17, 2007 06:12 PM

I think there are some firms that help the military but I haven't noticed it on the scale of the ones helping the detainees.

And manischewitz, when I called around to *ask* law firms there certainly wasn't any awareness of such activity because that was the question I *specifically asked* -- not so much will YOU help even, but can you direct me or do you know of anyone who would be LIKELY to help? And still I got blown off big time.

I was brief, courteous, and to the point and I might as well have had leprosy for all the help I got or the interest in assisting US servicemembers and their families. It was a pretty disgusting and disheartening experience. I have a lot of experience calling around to get this type of help. I've done it for years in a variety of capacities and I have rarely, if ever, gotten that kind of brush off.

Posted by: Obi Ven Cappuccino at January 17, 2007 06:18 PM

There is a former Marine who is an attorney in Springfield, MO. He was a bit of a sphincter muscle when I called him about some admin stuff;
presumed said parties were guilty just by the way he was acting. Not one that I would go to if I had a traffic ticket that was issued by a blind cop. But that's me; your mileage may vary.

Posted by: Bugged out at January 17, 2007 07:01 PM

"Is it apparent somewhere that, similar to some big firms doing pro bono work for gitmo detainees, there are *any* other law firms doing pro bono work for service members?"

I would be surprised if there wasnt. Look at groups like the service members legal defense network. Theyy may get corporate counsel help.

Posted by: actus at January 17, 2007 11:39 PM

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