Disclosure: I’m a member of the bar, and I currently work at a large law firm. So I’m wondering what the bar should do with comments like these from Charles D. Stimson, deputy assistant secretary of defense for detainee affairs.
Stimson went on a radio program Thursday and called on Corporate America to rethink their use of large law firms like Cleary Gottlieb and Shearman & Sterling, whose lawyers are representing Guantanamo detainees pro bono.
Stimson can’t have anything against the idea of pro bono work. In fact, because Stimson is a lawyer, the bar may require him to devote time to pro bono work every year, depending on what state he is barred in.
What’s going on here? Well there are two possibilities: either Stimson doesn’t think Guantanamo detainees are entitled to counsel, or he thinks they are entitled to counsel, but not good, high-paid counsel like one would get at Cleary Gottlieb.
The first possibility is ridiculous, because as any lawyer should know, the Federal Courts have held that the Guantanamo detainees have the right to challenge their detention (Hamdi v. Rumsfeld) and have the right to be represented by counsel (Al Odah v. United States).
So Stimson must believe the detainees do not deserve good counsel. Why? What is he afraid of? As an official, and a lawyer, in charge of detainee affairs for the Pentagon, he is in a good position to judge the relative legality of the detention of the Guantanamo detainees. If the detainees are in fact guilty of terrorism and crimes against this country, then their detention is just. If they have not been tortured, then the evidence gathered during their long interrogations will be rightly used at trial. If the military tribunals are conducted constitutionally, then their convictions will be upheld during appellate review. It should not matter who their lawyers are.
Of course, most Bush Administration officials know that the detainees have been tortured. They have been held for years without access to counsel. They have been denied the basic rights that will make evidence gathered during their interrogations admissible at trial.
After Hamdi and after Al Odah, Stimson can’t argue that the detainees do not have the right to counsel. So the only option available to him is to pressure other lawyers by threatening their bottom line. Essentially, he hopes that he can intimidate opposing counsel into withdrawing from representing the Guantanamo detainees.
I would like to remind Stimson of the rules of professional responsibility that apply to every lawyer. I do not know what bar he belongs to, however, he may want to review Model Rule 8.4, prohibiting misconduct as it relates to the integrity of the profession. Note that the rule prohibits knowingly inducing other lawyers to violate the rules. Given the reaction of groups like the ABA to Stimson’s comments, I will be very surprised if other members of the bar do not file ethical complaints against him.