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Smearing Justice and the Rule of Law


(AP Photo, via the DOD/R.D. Ward.)

This story concerns the outrageous statements by the Bush Administration's deputy assistant secretary of defense Charles "Cully" Stimson, disparaging attorneys who provide pro bono legal representation to detainees at Guantanamo. Last week, the Times and other reports revealed that Mr. Stimson willingly participated in a effort, echoed later by Robert Pollock of the Wall Street Journal's editorial board, to expose the names of the attorneys and their private law firms and to insinuate that the attorneys were unprincipled and disloyal by representing "terrorists." The apparent goal of these fine folks was to intimidate these and any other attorneys who might seek to represent the detainees by smearing the attorneys' reputations and encouraging their firms' corporate clients to find other counsel.

In a clear sign of an Administration-wide attack on the ability of the legal system to provide any accountability to the Administration in its handling of detainees, Attorney General Gonzales did his part on Tuesday by blaming the detainees' attorneys for any delays in bringing the detainees to trial. On Wednesday, he also criticized federal judges for presuming to interfere in these cases involving terrorists. Jonathon Turley summarized our Attorney General's broad attack on the rule of law on MSNBC's Countdown Wednesday night, and that was before Gonzales tried to explain that the Constitution does not provide every person with the centuries old right of habeas corpus. (Huge thanks to C&L for the clips.) I have to keep reminding myself that this man is the nation's chief law enforcement officer. But back to Cully.

Stimson's comments outraged the legal community, which has a long history of encouraging pro bono representation of those otherwise not likely to obtain counsel and a strong commitment to the nation's laws which provide that everyone — including the most violent criminals — are entitled to legal representation. For a little history, read Daniel Coquillette's essay on why patriot John Adams defended British troops accused of murdering Americans in 1770. But it's not just our history, it's the law of the land. And we still need to remind the editors of the WSJ and others that many (most?) detainees at Guantanamo are not criminals and were imprisoned on false information, grudges, bribes and hysteria; with their attorneys' help, many have been released to their home countries and freed, after several years languishing at Guantanamo.

By Wednesday, the National Lawyers Guild and others called for Stimson's censure, and dozens of law school deans, as well as numerous editorials (e.g. WaPo), were calling for a retraction — and apparently many decent attorneys in the Defense Department were disavowing Stimson's comments. Wednesday, the protesters got a formal written apology from "Cully" in a letter to the Washington Post. But an apology is not enough; Mr. Stimson should be fired. I'll let the Boston Globe's lead editorial, Another Pentagon Smear, make the obvious case:

WHEN THE shameful history of the Guantanamo detention center is finally written, one of the few reassuring chapters will be the way lawyers from many US law firms have given pro-bono representation to prisoners who have been denied their Geneva Convention rights. It is especially outrageous that the Pentagon official responsible for detainees has maligned these lawyers and encouraged corporations to take their legal business away from their firms.

In an interview last Thursday, deputy assistant secretary of defense Cully Stimson said he found it "shocking" that lawyers from prestigious firms were representing Guantanamo detainees. "I think, quite honestly," Stimson said, "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."

Since the right to counsel is a pillar of the US justice system, Stimson's boss, defense secretary Robert Gates, should go beyond the Pentagon's pro forma disavowal of these remarks and ensure that Stimson watches this "play out" from someplace other than a job at the Defense Department. Gates might also set the record straight by pointing out that the only inmates at Guantanamo suspected of links to the Sept. 11 attacks were brought there just recently, after long being held in secret Central Intelligence Agency prisons where they had no access to counsel whatsoever.

Twice, the Supreme Court has ruled that Guantanamo detainees' rights are being denied by the Bush administration in cases brought by the lawyers whom Stimson vilifies. In another case on behalf of Guantanamo detainees in 2005, US District Judge Gladys Kessler said the petitioners' lawyers are acting "in the very finest tradition of the American legal profession." It was a tradition established in part by John Adams's representation of the British soldiers accused in the Boston Massacre of 1770.

It's long past time to start letting these lawless clowns know they are not welcome anywhere in our government. Defense Secretary Gates should fire Stimson. And for those who agree with John Dean's suggestion that impeachment should begin with officials below the President, how about starting with an investigation of everyone in the Department of Defense who knew about and either authorized or acquiesced in Stimson's nasty smear, and any of the political appointees in the Department of Justice who were involved in coordinating Stimson's smear with Gonzales' attack on the same attorneys and the judges. In the process, I suspect they'll come across the same unprincipled attorneys who promoted/authorized/winked at the interrogation procedures and treatment at Gitmo that the detainee counsel helped expose.

These people could have stopped the Bush Administration's hellish descent into lawlessness and prevented the conduct that has shamed our national honor. That's their job. But they not only failed to do their jobs, they enabled the lawlessnes. If an inquiry means that we need to impeach a few government attorneys who do not understand or accept the rule of law, including the most lawless Attorney General our country has had in my lifetime, so be it. Enough is enough.

UPDATE: commenter petedownunder provides a link to Josh's TPM that suggests the corporate clients are sticking with the attorney's firms. Good news, so far.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley