Balkinization  

Monday, January 15, 2007

Statement of Law Deans Concerning Stimson Remarks

Guest Blogger

Harold Koh

January 15, 2007

Statement of Law Deans*

To the Editor:

We, the undersigned law deans, are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles “Cully” Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.

As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

We urge the Administration promptly and unequivocally to repudiate Secretary Stimson’s remarks.

Sincerely,

William E. Adams, Jr.
Acting Dean, Shepard Broad Law Center
Nova Southeastern University

James J. Alfini
President and Dean
South Texas College of Law

Michelle J. Anderson
Dean and Professor of Law
CUNY School of Law

Katharine T. Bartlett
Dean, Duke University School of Law

Louis D. Bilionis
Dean, University of Cincinnati College of Law

Terence L. Blackburn
Dean and Professor of Law
Michigan State University College of Law

Jeffrey S. Brand
Dean, University of San Francisco School of Law

Brian Bromberger
Dean, School of Law
Loyola University at New Orleans

Don Burnett
Dean, University of Idaho College of Law

Robert Butkin
Dean and Professor of Law
The University of Tulsa College of Law

Evan H. Caminker
Dean, University of Michigan Law School

Jim Chen
Dean and Professor of Law
Louis D. Brandeis School of Law
University of Louisville

Neil H. Cogan
Vice President and Dean
Whittier Law School

Jay Conison
Dean, Valparaiso University School of Law

Kenneth B. Davis, Jr.
Dean, University of Wisconsin Law School

Stuart L. Deutsch
Dean and Professor of Law
Rutgers School of Law-Newark

Allen K. Easley
President & Dean
William Mitchell College of Law

Michael Fitts
Dean, University of Pennsylvania School of Law

Stephen J. Friedman
Dean and Professor of Law
Pace University School of Law

John Garvey
Dean, Boston College Law School

Arthur R. Gaudio
Dean and Professor of Law
Western New England College School of Law

Jon M. Garon
Dean, Hamline University School of Law

Peter Goplerud
Dean, Florida Coastal School of Law

Mark Gordon,
Dean, University of Detroit Mercy School of Law

Jack A. Guttenberg
Dean & Professor of Law
Capital University Law School

Lawrence K. Hellman
Dean and Professor of Law
Oklahoma City University School of Law

Patrick E. Hobbs
Dean, Seton Hall University School of Law

Gilbert A. Holmes
Dean and Professor of Law
University of Baltimore School of Law

John C. Jeffries, Jr.
Dean, University of Virginia School of Law

Carolyn Jones
Dean, University of Iowa College of Law

Elena Kagan
Dean, Harvard Law School

Harold Hongju Koh
Dean, Yale Law School

Larry Kramer
Richard E. Lang Professor and Dean
Stanford Law School

Frederick M. Lawrence
Dean and Robert Kramer Research Professor of Law
The George Washington University Law School

Paul LeBel
Dean & Professor of Law
University of North Dakota School of Law

David A. Logan
Dean and Professor of Law
Ralph R. Papitto School of Law
Roger Williams University

Lydia Pallas Loren
Interim Dean and Professor of Law
Lewis & Clark Law School

Philip J. McConnaughay
Penn State University
The Dickinson School of Law

Susanah M. Mead
Interim Dean and Professor of Law
Indiana University School of Law - Indianapolis

Cynthia Nance
Dean and Professor of Law
University of Arkansas School of Law--Fayetteville

Charles I. Nelson
Dean and Professor of Law
Faulkner University

Nell Jessup Newton
Dean, UC Hastings College of Law

Margie Paris
Dean, University of Oregon School of Law

Elizabeth Rindskopf Parker
Dean
University of the Pacific
McGeorge School of Law

David F. Partlett
Dean and Asa Griggs Candler Professor of Law
Emory University School of Law

Rex R. Perschbacher
Dean and Professor of Law
University of California at Davis School of Law

Peter Pitegoff
Dean, University of Maine School of Law

Lawrence Ponoroff
Dean and Mitchell Franklin
Professor of Private & Commercial Law
Tulane University Law School

Lawrence Raful
Dean and Professor of Legal Ethics
Touro College Jacob D. Fuchsberg Law Center

Douglas E. Ray
Dean and Professor of Law
The University of Toledo College of Law

Robert Reinstein
Dean, Temple University Beasley School of Law

Richard Revesz
Dean, New York University School of Law

Lauren Robel
Dean, Indiana University School of Law--Bloomington

Nancy H. Rogers,
Dean, The Ohio State University Moritz College of Law

Karen H. Rothenberg
Dean & Marjorie Cook Professor of Law
University of Maryland School of Law

Edward Rubin
Dean and Professor of Law
Vanderbilt University Law School

Lawrence G. Sager
Dean, School of Law. University of Texas at Austin

Mark Sargent
Dean, Villanova University School of Law

Brad Saxton
Dean and Professor of Law, Quinnipiac University School of Law

Michael Schill
Dean, UCLA School of Law

Geoffrey B. Shields
President and Dean and Professor of Law
Vermont Law School

Gary J. Simson
Dean, Case Western Reserve University School of Law

Rodney A. Smolla
Dean, University of Richmond School of Law

Aviam Soifer
Dean, William S. Richardson School of Law, University of Hawai'i

Rayman L. Solomon
Dean, Rutgers University School of Law - Camden

Kurt A. Strasser
Interim Dean, University of Connecticut School of Law

Leonard P. Strickman
Dean, Florida International University
College of Law

Symeon C. Symeonides
Dean, Willamette University College of Law

Emily A. Spieler
Dean, Northeastern University School of Law

Ellen Y. Suni
Dean and Marvin Lewis Rich Faculty Scholar and Professor of Law
University of Missouri-Kansas City (UMKC) School of Law

Kellye Y. Testy
Dean and Professor of Law
Seattle University School of Law

Patricia D. White
Dean and Professor of Law
Sandra Day O'Connor College of Law
Arizona State University

Steven L. Willborn
Dean & Schmoker Professor of Law
University of Nebraska College of Law

Frank H. Wu
Dean, Wayne State University Law School

David Yellen
Dean and Professor
Loyola University Chicago School of Law

___________________________________

* For a complete listing of signatories, see http://www.law.yale.edu/news/4055.htm. Law School affiliations are provided for identification purposes only.

UPDATE: As of January 17, over 151 persons have signed the letter.

Comments:

Maybe I am not looking good enough, but I can't find the list at www.law.yale.edu. Could anyone, perhaps the unknow guest poster, provide us with the exact link?
 

Harold informs me that the lists will be up on the Yale and Northeastern Law School web sites in the next day or two.
 

Thank you for the answer.
 

"As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law."

The most basic tenet of American law relating to the attorney-client relationship is that it's consensual. A second almost as basic tenet is that people have the right to publicly state their opinions on any issue that other people may want to hear about.

There may be clients out there who don't want to give their non-bono money to feed pro bono attorneys who are trying to free two-legged animals who want to kill us and they have a right to know who those attorneys are.
 

I wish this Administration had the cojones to really go after this modern-day Fifth Column masquerading as champions of human rights.
 

NK: The problem is that not all of these terrorists are guilty. Neither you or I know which ones are guilty. I followed your name to your blog. I sincerely hope that you aren't a lawyer.
 

A second almost as basic tenet is that people have the right to publicly state their opinions on any issue that other people may want to hear about.

Actually, this is more basic than the consensual attorney-client relationship. That said, there are restrictions on that right, specifically when one is an attorney. Using one's position in government to intimidate the opposing party's counsel is unlikely to be seen as "innocent" or "commendable" regardless of whether it's not technically a violation of any law.
 

Dilbatt,

I felt that way too until I saw the Twin Towers burning on the same day that I found I was going to have a daughter. I marveled that there were birds flying around the Towers. Then I realized that they were people jumping out of the windows to escape the flames.

And yes, I am a lawyer. And I would not hold it against anyone to refuse to hire me as his lawyer because he does not like the other clients I represent. Nor would I hold it against anyone telling potential clients what other clients I represent when that information is already of public record.
 

I sure hope that none of the non-lawyers who read the comments here have gotten the mistaken impression that either Bart DePalma or nk speak for, or are representative of, our profession. There are, as the old saying goes, a few bad apples in every barrel.
 

@NK: Nice try, invoking attorney-client privilige, but while Stimson might be an attorney he's not acting in that capacity. He is, by all accounts, the assistent secretary of defensen. And he was giving an interview in that capacity. A third basic tenet of law is that people can represent other people and cannot just give their own opinions.

I don't think that that will change your opinion, but at least you'll have to come up with other arguments.
 

Federal Judge Lewis A. Kaplan's decision in the case of USA v. Stein et al (Southern District of New York, 2006) involving former partners, etc, of KPMG addresses well the missteps of government attorneys in prosecuting defendants by infringing their 5th and 6th Amendments rights. The defendants in that case have the benefit of qualified counsel from large and small law firms. The circumstances of the Guantanamo defendants is much worse. Thank you, Deans, for speaking up. Should other clients of the firms representing the Stein et al defendants rebuke these firms for defending tax gimmicks that impact upon the national fisc? Should an attorney's decision to represent a client be subject to the approval of a majority or a significant portion of his clients? What impact might that have upon the role of attorneys as officers of the courts? What would that say about the attorney who declines representation for fear of how his other clients might react? Lawyers should be marching in lockstep with the Deans on this matter.
 

@burnsesq: Your "bad apples" note struck a chord. I happen to have tried to address this, here in response to a stunningly disingenuous performance by DePalma on the "John Roberts and an 'Institutionalist' Court" thread. Here's the excerpt:

The litigator takes no responsibility for morals, for justice. The conscience of a lawyer must be placed in trust of the system, we are told. A litigator must win, must be an advocate. There is a judge and a jury and the codified laws to take care of justice. Lawyers don't work for justice, they work for victory for their client's interests. Our system, based on the myth of David and Goliath, flows from one simple precept: God will not allow an unjust cause to prevail. And so anything goes, really, for a certain class of person who has chosen such a career. It is probably the main feature distinguishing the "practicing lawyer" from the "academic,": one is free to count on others to ensure justice is served, the other must serve justice in their own acts rather than blindly trusting others to preserve it for them.

Comments, of course, are welcome at the home of the larger post. As for nk, so far s/he makes DePalma look downright urbane.
 

Allow me to play devil's advocate for a moment.

As a defense counsel, I am well aware that lawyers have a general ethical duty to represent even the most loathsome of clients to ensure they get a fair trial. However, lawyers also have an ethical duty to decline to bring frivolous cases before the court which have no basis in the law.

The attorneys at issue are arguably bringing frivolous cases with no basis in law by arguing that alien enemy combatants have the rights of a criminal defendant under our Constitution.

Habeas corpus has never been extended to alien enemy combatants under English or American common law and thus such rights could not have been incorporated into the Constitution by implication through the Suspension Clause of Article I. Indeed, at least one British court prior to the Revolution held "[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant habeas corpus to remove prisoners of war." Rex v. Schiever, 96 Eng. Rep. 1249 (K.B. 1759).

Likewise, the constitutional rights extended to domestic criminal defendants such as the right to remain silent, the right to choose counsel, the presumption of innocence and the right to a jury trial have not been extended to alien enemy combatants.

Rather, the Constitution expressly grants Congress (and implicitly the President as CiC in the absence of congressional action) the power to set rules for Captures. Therefore, if Congress and the President have the power to set the rules, such rules would by definition not be set in the Constitution itself.

Assuming then that these attorneys are unethically bringing frivolous claims before the Court, is it then unethical to call for companies and law firms to stop supporting such claims?
 

Bart: Assuming then...

B^) This maneuver typically serves one of two purposes. When interlocutors are partners in a fact-finding or problem-solving venture then such suppositions can serve creativity and thoroughness. However such assumptions are also known to be used by folks in the persuasion biz, quite effectively, because conversation predicated on such an assumption, even if only arguendo, soon comes to rely on said assumption; the longer the conversation goes the harder it becomes to treat the supposition as the contentious beast it is. So, no, I choose not to follow paths based on false premises; time is too short for such excursions. You say, "The attorneys at issue are arguably bringing frivolous cases..." but no responsible person would make such an argument. This cornerstone absent, your structure tumbles. Perhaps you should try building on something other than sand next time.
 

Robert:

Lawyers and professors of law use hypotheticals all the time. I am not asking you to agree with the assumption upon which my hypothetical lies. Instead, I am offering what I think is in interesting potential conflict of ethical duties for folks to comment upon.

I am still conflicted on this issue and am asking for some help hashing out the argument. I would welcome your views as well.
 

"Bart" DePalma says:

As a defense counsel, I am well aware that lawyers have a general ethical duty to represent even the most loathsome of clients to ensure they get a fair trial. However, lawyers also have an ethical duty to decline to bring frivolous cases before the court which have no basis in the law.

The attorneys at issue are arguably bringing frivolous cases with no basis in law by arguing that alien enemy combatants have the rights of a criminal defendant under our Constitution.


And how do we know this?!?!? Well, because the esteemed lawyer (and "criminal prosecutor", because he served as a student intern in the Florida OSA...) "Bart" DePalma says so. Are there "dissenting opinions" that are based on existing law (say, for example, Ex Parte Quirin or "warranted ... by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law"? Well, yes. But you won't hear "Bart" even admit to such opinions, much less address them.

I'd note also his peculiar "reframing" (favourite "Bart") tactic): "...rguing that alien enemy combatants have the rights of a criminal defendant under our Constitution."

Did the lawyers in question do such a thing? "Bart" won't explicate. He simply states it as an axiom, an axiom necessary for his subesquent 'argument'.....

Habeas corpus has never been extended to alien enemy combatants under English or American common law and thus such rights could not have been incorporated into the Constitution by implication through the Suspension Clause of Article I.

This is the Nth time that "Bart" has repeated this trope. He will not address objections, and the one U.S. case he cites for this proposition does not say what he claims it says.

Indeed, at least one British court prior to the Revolution held "[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant habeas corpus to remove prisoners of war." Rex v. Schiever, 96 Eng. Rep. 1249 (K.B. 1759).

One of the most difficult aspects of the present cases is that there's so much confusion and controversy about the predicate facts: Are the prisoners in fact "enemy combatants"? If they are not, then even if "Bart"'s assertion about habeas corpus was correct, it would be irrelevant.

Likewise, the constitutional rights extended to domestic criminal defendants such as the right to remain silent, the right to choose counsel, the presumption of innocence and the right to a jury trial have not been extended to alien enemy combatants.

See above. But "Bart" would be hard pressed to provide any caselaw that shows that, in the context of a criminal proceeding, the provisions of the U.S. COnstitution do not apply.

Rather, the Constitution expressly grants Congress (and implicitly the President as CiC in the absence of congressional action) the power to set rules for Captures.

Just a note on logic here: If the Constitution "expressly" grants Congress some powers (which are also in dispute here), it would hardly be logical to say that the same provision "implicitly" grants the same powers to the President. For instance, Congress is expressly empowered to pass legislation. If Congress doesn't pass a bill, does "Bart" then claim that the preznit is "implicitly" empowered to simply conjure up the 'necessary' legislation in the face of Congressional inaction? I don't think so....

... Therefore, if Congress and the President have the power to set the rules, such rules would by definition not be set in the Constitution itself.

"Straw man".

Assuming then that these attorneys are unethically bringing frivolous claims before the Court, is it then unethical to call for companies and law firms to stop supporting such claims?

Assuming the moon is made of bleu cheese, are we not then required by the Constitution to heap scorn and ridicule on "Bart"?

Cheers,
 

"Bart" DePalma said:

Lawyers and professors of law use hypotheticals all the time....

So did I:

"Assuming the moon is made of bleu cheese, are we not then required by the Constitution to heap scorn and ridicule on 'Bart'?"

Kind of like the neat "trick" in mathematics whereby if you assume a single false proposition (or two mutually contradictory propositions), you can prove anything you want. Works for me.

Cheers,
 

De Palma... Our system.... flows from one simple precept: God will not allow an unjust cause to prevail.

Nor a witch to drown (indicium aquae).
 

Bart: I am still conflicted on this issue and am asking for some help hashing out the argument.

Color me wary. You don't read like someone in conflict. You read, to me, like someone presupposing their preferred outcome. But I could be wrong; maybe it's my tin ear. Can you shed light on the nature of the notions vying for favor in your mind? Remember law school, where your analysis was supposed to shun advocacy in favor of presenting the best arguments both sides had available? Are you interested in that kind of thinking on this matter? If so, let's narrow the scope a bit and be really clear what we're about. Are you conflicted about the legality of Stimson's remarks? The morality of same? The legality of defending Gitmo prisoners? The morality of same? The effect of various policies on preventing attacks such as nine-one-one? The effect of various policies on the liberties for which we are allegedly hated? Narrow the scope and be a little more plain about the conflict. There is no small number of people who would rather engage you as a partner in protecting our country than as a threat to same.

Peace. (And, like, dude, you could _still_ drop me a private email...)
 

Since we are talking about basic tenets:

No lawyer has a duty to represent any client any more than a client has a duty to retain any lawyer. Whether they mutually agree to form an attorney-client relationship is as free and can be as whimsical as inviting each other for coffee. That's what "consensual" means, Anne.

As to what kind of information a government official can make public, the speaker's First Amendment rights cannot be separated from his audience. There are American citizens who want to know who the lawyers of record for the terrorists are. Just as there American citizens who want to know what our war causalties are. So is there a political litmus test for the audience which entitles those with the correct political thinking to receive information from a government source and those without the correct political thinking to remain in the dark on particular issues each may care about?

I have been a lawyer for 24 years, and I am a he BTW which you can confirm by a picture on my site. The abstract nonsense spouted by the Deans has less relevance to practicing law in real life than learning Latin in school has in ordering food in an Italian restaurant.
 

"nk" said:

I have been a lawyer for 24 years, and I am a he BTW which you can confirm by a picture on my site. The abstract nonsense spouted by the Deans has less relevance to practicing law in real life than learning Latin in school has in ordering food in an Italian restaurant.

Saying it is one thing. Perhaps some explication is in order? Are you really of the opinion that what these college deans are saying is the equivalent of 'using the wrong language' (or worse)?

To wit, "nk" says:

No lawyer has a duty to represent any client any more than a client has a duty to retain any lawyer. Whether they mutually agree to form an attorney-client relationship is as free and can be as whimsical as inviting each other for coffee. That's what "consensual" means, Anne.

Not entirely true, e.g. court-appointed attorneys and public defenders. But what that has to do with the objections of the deans to the government attempt to persuade law firms to refrain from assisting detainees is quite beyond me.

As to what kind of information a government official can make public, the speaker's First Amendment rights cannot be separated from his audience. There are American citizens who want to know who the lawyers of record for the terrorists are. Just as there American citizens who want to know what our war causalties are. So is there a political litmus test for the audience which entitles those with the correct political thinking to receive information from a government source and those without the correct political thinking to remain in the dark on particular issues each may care about?

What this has to do with the deans' petition -- or the price of tea in Sri Lanka, or for that matter anything other than speculations as to the emotional state of the speaker -- is a mystery. Was it perhaps code in Latin?

Cheers,
 

It looks like they are going after prosecutors, too.

Remember the saturday night massacre?


What's the White House Doing to Prosecutors?
By Justin Rood - January 16, 2007, 1:50 PM

During a floor speech on the topic moments ago, Sen. Dianne Feinstein (D-CA) said the White House has told her it was replacing from five to 10 Senate-confirmed U.S. attorneys with its own interim appointees.

We know of seven who have left during the last couple of months, many under unusual circumstances. Here is our list:

San Francisco - 1/16/07 - Kevin V. Ryan - unclear

Nevada - 1/15/07 - Daniel Bogden - pushed out


San Diego - 1/12/07 - Carole Lam - pushed out

New Mexico - 12/19/06 - David Igleslias - pushed out

Arizona - 12/19/06 - Paul K. Charlton - unclear


Seattle - 12/15/06 - John McKay - unclear; likely pushed out


Little Rock (Ark.) - 12/15/06 - Bud Cummins - pushed out

Feinstein said she also knew of seven, and listed those above. Curiously, she mentioned an eigthth -- from Texas. We haven't been able to identify that one.

There is an eighth recently-departed U.S. attorney we know of, which some readers have noted: Debra Wong Yang, the former U.S. Attorney in Los Angeles, Calif. Yang was overseeing the investigation into Rep. Jerry Lewis (R-CA). She announced her resignation in October 2006, but to date there hasn't been evidence that her departure was forced.

 

Not entirely true, e.g. court-appointed attorneys and public defenders. But what that has to do with the objections of the deans to the government attempt to persuade law firms to refrain from assisting detainees is quite beyond me.

I would bet he has a problem with public defenders. It's not something he wants his tax dollars to be spent on.
 

The abstract nonsense spouted by the Deans has less relevance to practicing law in real life than learning Latin in school has in ordering food in an Italian restaurant.

Just curious. Did you take Latin in grammar school?
 

Robert:

Let me attempt to clarify my hypothetical.

If I understand this letter correctly, the Law School Deans are offering the following syllogism:

1) It is unethical for an attorney to advise businesses not to engage law firms whose attorneys are performing pro bono work on behalf of unpopular criminal defendants.

2) Alien enemy combatants held at Gitmo are criminal defendants deserving of a pro bono defense.

3) Thus, attorney Stimson is acting unethically by advising businesses not to engage law firms whose attorneys are doing pro bono work on behalf of alien enemy combatants held at Gitmo.

Now that I have mapped out this syllogism, it appears to me that the Deans' argument breaks down at the second element because alien enemy combatants are not criminal defendants and do not have a right to legal counsel. Thus, Stimson could not be acting unethically by opposing that to which the alien enemy combatants have no right.

In any case, for the sake of this hypothetical, let us assume that lawyers at issue have an ethical duty to attempt to represent the alien enemy combatants at Gitmo.

Now to my point. Even if these lawyers have an ethical duty to provide representation to alien enemy combatants, may these attorneys then ethically make frivolous arguments to the Court on behalf of their clients?

If, as I contend, attorneys may not ethically make frivolous arguments to the Court, is it unethical for Stimson to advise businesses not to hire firms which allow their attorneys commit such ethical breaches?

I'll let you run with this. I have to get to court.
 

@NK: Of course there is something different between a person not asking a certain lawyer, because for whatever reason the person wants and being encouraged to do so by a government official, regardless of whether anyone actually starts looking for another lawyer.

The administration is trying to influence the results of proceedings by tempering with the process, and thats just wrong.
 

http://www.law.yale.edu/news/4055.htm
 

"Bart" starts his syllogism off on the wrong foot:

If I understand this letter correctly, the Law School Deans are offering the following syllogism:

1) It is unethical for an attorney to advise businesses not to engage law firms whose attorneys are performing pro bono work on behalf of unpopular criminal defendants.


"Bart" seems to have misread the MRPC. They don't limit their strictures to criminal defence lawyers or representation of "unpopular criminal defendants".

As the deans' statement says:

"As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers."

"Bart" seems to be forgetting the Skokie Nazi march which the ACLU defended.

Here's "Bart"'s Q.E.D conclusion:

Now that I have mapped out this syllogism, it appears to me that the Deans' argument breaks down at the second element because alien enemy combatants are not criminal defendants and do not have a right to legal counsel. Thus, Stimson could not be acting unethically by opposing that to which the alien enemy combatants have no right.

Even if his claim that "alien enemy combatants" have no "right to legal counsel" is true (which is also quite arguable), his conclusion is invalid.

The first proposition in "Bart"'s 'syllogism' is simply not true, which makes any conclusions based on the syllogism invalid. But this is typical for "Bart"'s method of argumentation....

Cheers,
 

as an attorney who has been practicing for twenty-five years, please allow me to weigh in...

it seems to me that the basic tenet that mr. depalma and nk start off with is that all detainees at guantanamo are illegal enemy combatants. it further seems to me that this is where they necessarily go wrong in their subsequent analysis.

it is my understanding that the various law firms, large and small, that have been attempting to provide legal services, for the most part, wish to challenge the assertion, on behalf of their clients, that they were enemy combatants in the first place, let alone illegal enemy combatants. this being the case, if these firms were successful in a court of law in showing that their clients were not, in fact combatants of any kind, but were being wrongfully held at guantanamo, wouldn't the correct analogy be to a criminal or appellate lawyer proving that his client was on death row having been wrongfully convicted? i cannot imagine that mr. depalma or nk have any serious issue with a lawyer proving the innocence of a client. that being the case, hearings to allow detainees to show that they were not "illegal enemy combatants" should be encouraged, not ridiculed. after all, there is just as much likelihood that on a case by case basis the government can show that the detainee is exactly who they claim he is. what's the harm in that, as compared with the harm of the wrongfully held detainee?

as for the remarks of mr. stimson, it is true that any client can pull his business from any firm at any time for any reason. if it is, in fact, the case that the representation of an individual or group of detainees is a matter of public record, then the clients can simply find out for themselves and make their own decision.

there is a big difference, however, between a client deciding who should continue to represent him and an adversary attorney, and in this case the government is indeed an adversary attorney, making not so veiled threats against the clients and the attorney simply due to the fact that the attorney is representing a possibly unpopular client. where i practice, the judges would come down very hard on any attorney who did this. the fact that the attorney is a government official should make the standard no different. mr. stimson was way out of line. what comes next? if the corporate client refuses to switch firms will mr. stimson call for a public boycott of these companies? if the boycott doesn't materialize, will he call for increasing the taxes or repudiating the civil rights of those who do not heed his call? the possibility is endless.

in the interim, i scanned the list of deans who signed on to this statement, and was proud to note that the deans of the law schools at both my undergraduate and law school were on the list. it is a proud moment when men and women who can, in fact, stand up to a cowardly bully.
 

[Advice to self: Ignore moonbats, address substance of post.]

"We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation."

Coming from people who do not represent clients, "despised and unpopular" or not, but have made the career choice of retreating into the warm womb of academia the above statement is .... hypocritical, disingenuous, presumptuous, arrogant, ignorant, pompous, not passing the giggle test? All of the foregoing?
 

phg said...

as an attorney who has been practicing for twenty-five years, please allow me to weigh in...

it seems to me that the basic tenet that mr. depalma and nk start off with is that all detainees at guantanamo are illegal enemy combatants. it further seems to me that this is where they necessarily go wrong in their subsequent analysis.

it is my understanding that the various law firms, large and small, that have been attempting to provide legal services, for the most part, wish to challenge the assertion, on behalf of their clients, that they were enemy combatants in the first place, let alone illegal enemy combatants. this being the case, if these firms were successful in a court of law in showing that their clients were not, in fact combatants of any kind, but were being wrongfully held at guantanamo, wouldn't the correct analogy be to a criminal or appellate lawyer proving that his client was on death row having been wrongfully convicted? i cannot imagine that mr. depalma or nk have any serious issue with a lawyer proving the innocence of a client. that being the case, hearings to allow detainees to show that they were not "illegal enemy combatants" should be encouraged, not ridiculed. after all, there is just as much likelihood that on a case by case basis the government can show that the detainee is exactly who they claim he is. what's the harm in that, as compared with the harm of the wrongfully held detainee?


IMHO, the problem with your argument is that the Executive, more specifically the military, is the branch which determines whether a Capture is an alien enemy combatant. To my knowledge, no US court has ever claimed the competence or the power to do so.

Although no law compels this, the military already provides hearings to determine the status of captures as combatants or civilians. During these hearings, the capture has a military representative. The capture has been interrogated before the hearing and has ample opportunity to identify himself as a civilian to the military.

What these attorneys are attempting to accomplish is to change venue for this review from the military to the civilian court system and then insert themselves as counsel for the detainees.

I can find no legal basis whatsoever for these efforts. I am more than willing to consider any authority which you or anyone else can offer. However, the best the Law School Deans could do is cite to "our shared constitutional principles." Perhaps they would cite the exact provisions of the Constitution which provide these principles.
 

"We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation."

Coming from people who do not represent clients, "despised and unpopular" or not, but have made the career choice of retreating into the warm womb of academia the above statement is .... hypocritical, disingenuous, presumptuous, arrogant, ignorant, pompous, not passing the giggle test? All of the foregoing?"

@nk: I know that you decided to not read comments by "moonbats" (not from around here, suppose that means democrats?), but please at least read your own comment again. You seem to be saying that law schools teaching law students ethics is ridiculous. Am I misreading you?
 

Bart: Now to my point. Even if these lawyers have an ethical duty to provide representation to alien enemy combatants, may these attorneys then ethically make frivolous arguments to the Court on behalf of their clients?

Truly, this post didn't read, to me, like you are experiencing any conflict in your opinions. It reads like you want someone to argue a position you have prepared for them. Frankly, I don't get from the letter what you get from it. Nor am I interested in arguing the aptness of your analysis. I'm fine with the general gist of the letter, that Stimson's remarks are out of line and quite out of keeping with the ideals we supposedly are trying to protect. $.02

If, on the other hand, you actually have some conflict, if you are harboring two or more views and can't settle on one, which is what I thought you said motivated you, well, clue me in. But what you've posted? Forgive me for declining to grab the feces-coated end of the stick.

Peace.
 

ok, nk....

like you, i am a practicing attorney. like you, i have not retreated into the "warm womb of academia". like you, i practice in new york, and on september 11, was in the shadow of the twin towers, and watched the entire event unfold from my office window.

unlike you, i fully endorse the sentiments of the law school deans. unlike you, i believe that the constitution and all it stands for (even if imperfect) is a beacon for all, and protects all, even the unpopular. i do not consider the people who post here "moonbats", whatever that means. i generally find that those who resort to ad hominem and senseless attacks and statements like that do so because they have run out of decent, sensible arguments to make. on to the next post...
 

nk: I have been a lawyer for 24 years, and I am a he BTW which you can confirm by a picture on my site.

Mr. Krites, thanks for letting us know that picture is of you (but you might think of either including it on your blogger profile or captioning it, because I didn't catch that bit of info at first.)

Suggestion? Stop being such a pratt about "I've been a lawyer 24 years." Our hosts won't be impressed. Neither will most of the other commenters. And it makes you look, well, foolish, like you haven't the ability to forward an argument other than by appeal to your employment history. I mean, like, dude, how well does that strategy play out when "practicing law in real life"?

You're passionate, great. Takes more in some parts. Maybe you'd be more at home on Stop the ACLU?
 

nk: [Advice to self: Ignore moonbats, address substance of post.]

I'll help. Killfile us.
 

Moonbat (also "barking moonbat") is a term often used as a political epithet. Some Iraq War supporters use it to insult opponents like Noam Chomsky and Pat Buchanan. More generally, it is used as a pejorative for extremists, especially those who believe in conspiracy theories.

History of use

The term was used in a newspaper hoax perpetrated by the New York Sun in 1835, claiming that a British scientist, Sir Alfred Charles Bernard Lovell, using a new fangled type of telescope, The Batscope had discovered a race of bat-type creatures living on the moon.[1]

According to an article by New York Times language maven William Safire, the term was first used by the famous science fiction author Robert A. Heinlein in 1947. [2]


Current use
Open source advocate Eric Raymond used the term in an interview in The New Yorker to describe eccentric Wikipedia contributors.[3] The term has come into wider use in politics, sometimes as "moonbat crazy"; Boston commentator Howie Carr uses the term regularly.[4] In September, 2006, Carr ran a number of "How do you spot a moonbat?" segments on his daily radio show, and defined the term to mean "A left-wing nut who probably suffers from Bush Derangement Syndrome."

 

A better advise would be to shorten the advise he gave himself: "address substance"
 

"nk" said:

"We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation."

Coming from people who do not represent clients, "despised and unpopular" or not, but have made the career choice of retreating into the warm womb of academia the above statement is .... hypocritical, disingenuous, presumptuous, arrogant, ignorant, pompous, not passing the giggle test? All of the foregoing?


Ummm, does "nk" have any proof that the foregoing deans and professors have not "represent clients, 'despised and unpopular' or not"? If so, out with it. I suspect it's simply not true, but perhaps one of the signatories, if they're reading, might chime in and correct on any inaccuracies by Mr. "nk" in his unsupported statement here.

Cheers,
 

"Bart" DePalma says:

IMHO, the problem with your argument is that the Executive, more specifically the military, is the branch which determines whether a Capture is an alien enemy combatant.

Actually, it is the actions of the persons themselves that make them (or don't make them) an "alien enemy combatant", if this label is to be more than a tautology. Whatever determinations are made by either the courts, the executive, or even the ICRC may be right, or may be wrong. They don't change the facts. The question is: If we really believe that only "alien enemy combatants" are to be deprived of their liberty, how best to make that determination. It has parallels in criminal law: We could, for expediency's sake, simply allow the cops to lock up on their own say-so all who are suspected of criminal activity ... but this is likely to be overbroad. This is why we have developed minimal procedures to safeguard against unjust imprisonment and punishment (which most people agree to be a good and workable system ... even as DNA evidence and other modern forensics is poking holes even the the efficacy of this, our criminal justice system). If we do notput in sufficient safeguards into the system, we will undoubtedly lock up innocents in our zeal for "safety" (as has arguably happened with el Masri and Rasul, and probably hundreds of others in Guantanamo). "Bart" has to argue here that this is a small price to pay for his being able to forgo the Depends.... If so, I'd like to see his honest argument for such.

Cheers,
 

"Bart" DePalma says:

During these hearings, the capture has a military representative.

IIRC, in the cae of one of the Hamdan military lawyers, the military leaned on the lawyer to "plead [his client] guilty". Perhaps "Bart" thinks that the prosecution ought to be able to name the defence lawyers for DUI cases ... hell, such a policy might even result in a wealth of business for ol' "Bart", judging from his performance here.....

I'd note that the Geneva Conventions prescribe that persons accused of crimes be afforded the lawyer of their choice.

Cheers,
 

phq,

I apologize that you got caught in my "moonbat" shotgun blast.

I do, in fact, think that captured enemy combatants are under the sole jurisdiction of the military and that Article III judges have no business conducting a war or commanding the armed forces of the United States.

But that is peripheral. You can write me off as a wingnut on that issue if you wish.

The central point is whether a government official can disclose unprivileged, unclassified information to clients or potential clients of lawyers who represent terrorists. I thought I made my reasoning clear in this comment:

"As to what kind of information a government official can make public, the speaker's First Amendment rights cannot be separated from his audience. There are American citizens who want to know who the lawyers of record for the terrorists are. Just as there American citizens who want to know what our war causalties are. So is there a political litmus test for the audience which entitles those with the correct political thinking to receive information from a government source and those without the correct political thinking to remain in the dark on particular issues each may care about?"

I will do the best to expand on it. Are the clients or potential clients entitled to know whether their lawyers are representing terrorists. I say yes. Does it make a difference that the source is a government official? I say no. The important thing is the information and the people who have a desire to receive it. That derives from my view of the heart and soul of the First Amendment. That it protects the speaker but the real benefit is to his audience.

Let's take me and you as an example. Wouldn't you like to have known these views of mine before you hired me to represent you for any matter? Wouldn't you at least want to question me about them before you hire me? Should the deans be able to shut up your source?

BTW: I do not practice in New York. I watched the Twin Towers burning again and again and again on TV.
 

nk, we agree that captured enemy combatants are under the jurisdiction of military courts. i would note, however, that not all of those detained are, in fact, combatants at all. they are certainly entitled to prove that they are not combatants, and should not be detained at guantanamo, or anywhere else. as i noted above, i cannot imagine that you would have a problem with an attorney who was able to reverse a conviction on appeal of a man wrongfully convicted of murder, as has happened on any number of occasions. nobody wants to see an innocent man punished for a crime he did not commit. i find this situation no different.

i would also note, as was stated by mr. langsetmo in the post immediately prior to your last that the geneva conventions direct that those accused of crimes be entitled to an attorney of their choice. it's not just the constitution that is at issue here.

as far as whether or not a client is entitled to know who his or her attorneys are representing, i don't believe there is any problem with a potential or existing client asking if his/her firm is representing guantamano detainees or anyone else for that matter. it is certainly within the client's perogative to seek other counsel at any time if he/she does not approve of the firm's pro bono activities. i dare say that there are some corporations out there that would applaud their firms taking on these cases.

where you and i part ways is in a government official clearly attempting nothing more than intimidating the corporate clients within very thinly veiled threats to pressuring their law firms to drop these cases. as i noted in a prior post, if attorneys were handling cases this way where i practice, i have no doubt that just about all the judges would come down very harshly upon them. i find mr. stimson's statement a bald attempt at chilling the bar from a time honored tradition of defending the accused and providing the best possible defense.

finally, i would note that we were all affected in one form or another by the events of september 11. i don't think any of us lays claim to the full gamut of emotions and entitlement of emotions just because you witnessed the events either in person or on television.

i would note, in closing, that sometimes a person shows real and true patriotism by doing the unpopular when others either cannot or will not.
 

"nk":

I do, in fact, think that captured enemy combatants are under the sole jurisdiction of the military...

You can think what you want (it's still a free country ... for the time being), but that's hardly the same as making a legal argument that such is the case. The fact that more than one such case has made it to the Supreme Court would seem to argue strongly against your claim (particularly since none of these cases were decided on the grounds that "captured enemy combatants are under the sole jurisdiction of the military", which would have been dispositive and resulted in a very speedy decision had the courts actualy held to such an opinion).

... and that Article III judges have no business conducting a war or commanding the armed forces of the United States.

Can you say "straw man"? Good. I knew you could. Because no one has argued that "judges [should] have business conducting a war or commanding the armed forces of the United States."

Thanks.

Cheers,
 

"nk":

The central point is whether a government official can disclose unprivileged, unclassified information to clients or potential clients of lawyers who represent terrorists.

No, it's not. It's whether the gummint can use its influence to try to sway legal firms and lawyers away from representing alleged "enemy combatants". It's like you saying "the central point is whether it is legal for me to discharge a firearm" when in fact the actual situation under consideration is whether you'd go to jail if you fired that gun at me. It's not the speech (or gun) rights that are at issue, it's the intended action and intended results. You may do things that are per se legal, but which constitute a crime under the totality of the circumstances.

Whether this attempted intimidation of such lawyers is legal or not, better minds will have to weigh in on, but whether it's ethical seems fairly clear: No.

Cheers,
 

"nk":

BTW: I do not practice in New York. I watched the Twin Towers burning again and again and again on TV.

Ahhhh. There's the problem. Get a life ... and change your underwear.

Cheers,
 

Bart,

Assuming that your question about how lawyers can advance arguments that you consider to be frivolous was asked in the spirit of serious inquiry, I would point you to Rule 3.1 of the Model Rules of Professional Conduct.

Said rule provides in relevant part as follows:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

There is unquestionably, in my view, a good faith argument that can be made that large portions of the Detainee Treatment Act are unconstitutional (perhaps not facially, but certainly as applied), in that they have the effect of suspending the writ of habeas corpus without the conditions set forth in Article I for such a suspension having been met.
 

nk... I watched the Twin Towers burning again and again and again on TV.

What effect, if any, did this have on you?
 

"The central point is whether a government official can disclose unprivileged, unclassified information to clients or potential clients of lawyers who represent terrorists."

@NK: Thank you for keeping your own advise and reacting on the substance.

You say that potential clients should know who their lawyers are representing regardless of the source of that information. I disagree. The problem is the source. The source has a stake in the proceedings and should not try to influence these proceedings by pressuring the representation of the other side.

Secondly, you keep referring to the detainees as "the terrorists" and the lawyers who represent them as lawyers of terrorists. Would you care to react to the (repeated) point that these are alleged terrorists/enemy combatants. They are trying dispute the claim that they are terrorists.
 

Stimson apologized for what it's worth.
 

burnspbesq:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

Almost idential language exists in FRCP Rule 11 (which I quoted from previously in this thread -- without revealing its origin to see if "Bart" was on-the-ball with his civil procedure).

But seeing as he's determined to ignore me, I guess we won't find out if he's not fully conversant on the FRCP. But one clue might be that he didn't spot this and either address it and refute it, or accept it as a counter to his thesis.

As for the MRPC, I've previously cautioned "Bart" about MRCP Rule 8.4(c)....

Cheers,
 

"[Y]ou keep referring to the detainees as "the terrorists" and the lawyers who represent them as lawyers of terrorists."

The track record of the Guantanamo detention program “can be summed up quite simply: five years, zero convictions.” More than 770 captives have been held there and just 10 have been charged with crimes.
 

Anne: Stimson apologized for what it's worth.

Too little, too late. If this "offend in headline, apologize in pica" strategy isn't planned, no matter: the result is the same and the semi-literate opinions that could be swayed have been.
 

Haven't seen NK in a while. Must make a mental note that there are a couple questions waiting for him in this topic.
 

Anne: Haven't seen NK in a while.

Sobered up or back on his meds. Either way, it's for the best. Now, HLS, him I miss.
 

hola espero me gusta este blog es exelente
 

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