Wednesday, January 17, 2007
A Nice Reply by Weil Associate on How Can You Represent Terrorists?
Posted by Alan Childress
Every blawg has taken up the clarion flugelhorn in reply to DOD's Cully Stimson who told U.S. businesses to pull their law work from law firms who do pro bono work for "terrorists." To a blogger on the role of the legal profession in society, his comments come across as so asinine that one would have hoped they would have been mostly ignored and the employee relocated and de-powered for such an outlandish and incompetent misunderstanding of the basic and best norms of our (and his) profession. But apparently no such governmental repudiation and correction is forthcoming.
Either we believe in lawyers or we don't. I do. I do for corporations and their employees who want to be fully represented and assert whatever privilege is allowed. I do for young associates and big law firms who give of their time for pro bono representation of all sorts of people, including Stimson's enemy-combatants. I wish no one felt the need to reply to Stimson's comments. Many have, and of course they all make more sense than the comments.
Here is a very good reply from one such associate, from the Weil Gotshal firm's office in DC, published on Salon.com. (HT to Jane Hicks, who has represented corporations, football stars, and convicted murderers.) And MyShingle's Carolyn Elefant notes here, "Stimson's remarks are offensive only if there's the potential that they might work." She implores biglaw not to cut and run, even as she notes that sometimes it's biglaw making the same kind of suggestions about others' clients.
Ray Ward at Minor Wisdom here quotes the 6th amendment and says, "Some guy named Cully Stimson would apparently like to repeal that last infinitive phrase, if not the entire amendment. That wouldn't matter if Stimson were just some wingnut. But he's not just a wingnut. He's a lawyer, which means he ought to be familiar with the Sixth Amendment."
Ultimately I guess I am used to the usual public question asked of criminal defense attorneys, "How can you represent guilty people?" (The defense attorneys that I know say it's representing the innocent ones that makes them puke in panic.) I am not used to the American government asking it. And then asking for those who do to be punished into submission by their other clients. And suggesting that selfless volunteers are secretly funded by terrorists. How does he still have a position of power and responsibility in a system devoted to the rule of law?
As any decent anarchist would say, "First we do, let's kill all the lawyers." In a democracy, I say, "First we do, let's not empower anarchists."
From the now defunct Eisentrager, as cited by Scalia in Rasul:
"To grant the writ to these prisoners [held in Germany] might mean that our army must transport them across the seas for hearing. This would require allocation for shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States."
Posted by: Joe | Mar 10, 2007 8:41:34 PM
The challenge to a blogger on this topic is the register of one's remarks...exactly how outraged should one be? and I think you hit it just right!
Posted by: Frank | Jan 17, 2007 2:20:26 PM