Balkinization  

Sunday, January 14, 2007

Stimson's Attack on the Gitmo Lawyers

David Luban

No one ever accused Bush administration officials of lacking a heavy hand.

Now comes before you Mr. Cully Stimson, deputy assistant secretary of defense for detainee affairs. In an interview with conservative radio broadcasters on a local A.M. station, Mr. Stimson remarks that an interesting, breaking story is the list of blue-chip law firms representing Guantanamo detainees – a list that he says was unearthed by a FOIA request (although, as Stimson knows quite well, the information was never a secret). (The audio is here. Scroll down to Guantanamo Bay: Five Years Later.) Stimson finds it “shocking, really” that prominent law firms would do any such thing. As he rattles off the list of law firms, it becomes clear that he has it on paper in front of him: it’s too lengthy to come off the top of his head. Asked who is paying the law firms, Stimson magnanimously admits that some of these lawyers are working pro bono, but then he hints darkly that others may have nefarious, secret funding sources. Enemies within! More terrorist lawfare!

He adds, “I think, quite honestly, 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. It will be fun to watch that play out.”

A couple of days after Stimson’s interview, Robert Pollock, in a Wall Street Journal op-ed, echoed the idea that corporate clients should be or would be pressuring their law firms to drop the Gitmo detainees.

The response was predictable, and gratifying. The ABA’s president, and defense-bar spokesman Neal Sonnett leaped to the law firms’ defense, as did Senator Leahy. After outraged editorials in both the New York Times and the Washington Post publicized Stimson’s obscurely-situated interview, the Defense Department disavowed his remarks in strong terms, and made all the right noises about how important it is for the legal process to have excellent counsel for detainees.

How’s that again? For five years, the government (not least Defense) has fought in every way possible to avoid access to legal process for the detainees, a campaign that culminated in the habeas-stripping provisions in the Military Commissions Act. Why would they want excellent representation for the detainees, given that they don’t want the detainees ever to find a forum to be represented in? The hypocrisy boggles the mind. I assume that what bothered Defense about Stimson’s remarks is not their content but their candor.

Let’s be clear, however, that what Stimson recommends is nothing unusual. On the contrary, it’s business as usual for conservative activists, who for years have used the strategy of trying to defund lawyers on the left. I analyzed this strategy four years ago in Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers, 91 Calif. L. Rev. 209 (2003), and a shorter version of my argument appeared here in Legal Affairs.

The prime example, of course, is the decades-long attack on the Legal Services Corporation. The Reagan Administration tried unsuccessfully to zero the LSC out of the federal budget. They failed, but in 1996 the Republican Revolution Congress succeeded in partially neutering LSC with burdensome and unfair restrictions on LSC-funded lawyers. (One of these restrictions, forbidding legal services lawyers from making legal arguments against welfare “reform,” was subsequently found unconstitutional (Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)) – an important precedent when it comes to detainee issues, because it suggests that Military Commissions Act provisions forbidding detainees from making Geneva Convention arguments should likewise be found unconstitutional.)

But the attack on LSC is by no means the only effort by the right to win fights by making it hard for opponents to get a lawyer. For years, conservative public-interest firms attacked IOLTA programs, which fund legal aid lawyers through interest on client trust accounts that can’t be returned to the clients. They gave up only after the Supreme Court shot them down in 2003 in Brown v. Legal Foundation of Washington, 538 U.S. 216. Then there were attacks on law school clinics, like the successful lobbying campaign by Louisiana business interests and conservative groups to get the Louisiana Supreme Court to forbid law-student practice by Tulane’s environmental law clinic. And let’s not forget the shameful Supreme Court decisions Evans v. Jeff D. (475 U.S. 717 (1986)) and Buckhannon (532 U.S. 598), which allow targets of civil-rights suits to string cases along for years, and then grant relief to plaintiffs at the last minute while denying statutory attorney’s fees to their lawyers. Jeff D. "sacrifice offers" - sure, we'll give you what you want, but only if you agree that your lawyers don't get paid - provide a powerful tool for starving funds out of public interest law firms.

Stimson’s suggestion that businesses muscle their law firms into dropping detainee clients is also a time-tested tactic. Lawyers use the term “business conflicts” to describe representations they avoid because they would antagonize their bread-and-butter clients, and it’s long been recognized that business conflicts are a major obstacle to pro bono work. (In a New Yorker cartoon, one lawyer reminds another that the only thing that makes pro bono possible is all the anti-bono they do.) Sometimes, firms argue that bar rules make it unethical to take on a “positional” conflict of interest – a more antiseptic term than “business conflict” – but in the case of mere business conflicts, that is untrue. It’s an excuse lawyers offer for caving in to client pressure. Genuine positional conflicts of interest arise when a position a law firm is taking on one issue will damage another client on an unrelated issue – but merely annoying a client isn’t a positional conflict, and the ABA’s Model Rules of Professional Conduct make it clear that lawyers have absolute freedom to do public interest work even if it angers their paying clients.

Business conflicts are a powerful way that big corporations can discipline their lawyers into toeing the line in their extracurricular activities. I recall a few years ago when I participated in an academic conference on punitive damages. The conference program had speakers on all sides of the issue – until the morning the conference was scheduled to begin. Suddenly, all the pro-business, anti-punitive-damages speakers pulled out, almost simultaneously. It seems that a powerful insurance-company general counsel decided that it would be a tactical error to legitimize the conference by participating in it, because several speakers on the other side were presenting solid data that punitive damages cause no discernible damage to the U.S. economy or legal system. She phoned major business clients of the pro-business lawyers who were scheduled to speak at the conference, and they ordered their lawyer-speakers to bail out. Only one refused to do so. Client muscle is real.

Of course, the lawyers who dropped out were on the same side as their clients on the issue of punitive damages. Matters might be different if clients try to muscle lawyers into dropping their detainee clients: the law-firm lawyers representing them are proud of the work they're doing, and lots of lawyers find their pro bono work a personally necessary counterweight, even a professional redemption, to the anti-bono that pays the bills.

The fact that the Pentagon disowned Stimson’s fatuous interview doesn’t mean big businesses won’t take up his invitation, although it’s a bit hard to see why business clients would care enough to oppose good representation for Guantanamo detainees. Hopefully, business clients of major law firms will be smart enough to realize that if they do pressure the firms to drop detainee clients, the story is bound to leak. But let’s not forget that even if DoD’s disavowal of Stimson is the end of that story, it is by no means the end of the bigger story: winning cases by taking out your adversary’s lawyer remains business as usual.

Comments:

Using political and economic pressure on private business to compel them to cut economic support for disfavored causes is hardly restricted to the political right. The left in the civil rights and labor communities have used this tactic for far longer.

Left leaning law firms have no right to the business of their clients in order to finance their extra circular legal activities. Law firms constantly modify their behaviors in order to maintain large clients and to woo others. If a law firm embarrasses its business client, then there are plenty of other lawyers for that client to choose from.

If working to invent new law in the courts to release terrorist detainees so they can go back to their previous occupations is truly a noble cause, then I am sure that businesses will be pleased to be associated with law firms which pursue such endeavors.

However, if risk adverse business clients for some reason frown upon such activities, some firms may have to choose between continuing to finance seven figure salaries for its partners or going into the much less lucrative field of public interest law.

Life sometimes requires choices.
 

Professor Luban: ...the law-firm lawyers representing them are proud of the work they're doing.

As well they should be. And the answer to nonsense such as Stimson's, "...representing the very terrorists who hit their bottom line back in 2001..., is "firms cannot have a bottom line without rule of law."

I'm only a student, and certainly haven't studied Coase's or Posner's work in-depth. But generally it seems to me that the ascendancy of their theories comes at the cost of accepting a truly amazing fallacy: that there can be a market without government, or vice-versa. Firms that took a direct financial hit on nine-one-one are still reliant on maintaining the society of liberty and justice in which their profits were originally earned.

As for the lawyers doing the work, well, there's no such thing as bad press, just make sure you spell the name right, right? High profile pro-bono cases can attract business from the kinds of firms one would prefer to work with. One can hope.
 

Great post. But:

"towing the line"???

Think about it. It's not as though you attach the line to a tow truck and start to drive, or drag it along behind you. No: you line your feet up along the line, military-style, so that your TOES go right up to if and no further.

Which is why we spell it 'toeing the line.'
 

Busted by the typo police again!

Thanks for the correction, hilzoy.
 

David says it all when he suggests that these lawyers--the paragon of the profession--would respond to client pressure to drop their Gitmo work by...publicly disclosing the pressure with the explicit purpose of harming the client. Yes, now I understand all this talk about the high ideals of the profession.

It seems to me that Mr. Stimson's criticism is entirely appropriate. These law firms aren't "defending" anyone; they're acting as advocates in a political movement. They're entirely free to do that, but one wonders why they should remain free from criticism for their actions.

BTW: it is a fact, on the record, that some of these firms are working with Saudi Arabian interests in litigation over 9/11.
 

I am correcting the spelling of 'toeing'. Right you are! (Given that the 'w' and 'e' are side by side, I don't remember whether my error was a typo or a cogno.)
 

I noticed that my firm is on that list. Oh noes! Oh, the potential cognitive dissonance -- but I knew that before I accepted.
 

De Palma... Left leaning law firms


Please name one.
 

I think I found one. It must be that venerable firm of Granola, Patchouli and Birkenstock.

It coitanly isn't Dewey, Cheatham & Howe.
 

Since the sagacious hilzoy has made a nice visit, I add with similar intent a criticism of one of BdP's slips, the one in which he accuses LeftLawfirms of implementing slush funds to finance "their extra circular legal activities"; sounds excessively circumlocutory, even for attorneys and lawfirms, left or right; humane or mercenary.

Reading recent accounts of the topic of the original discussion, I found parallels in labor law in the 1950s; it seems egregiously mistaken for government official Stimson to use his public employee bullypulpit to encourage secondary boycotts of political oponent affiliated lawfirms. Maybe Sen. Leahy could visit this topic as well, perhaps with his esteemed colleague Sen. Specter, and make a new, more explicit law to reinforce the firewall between public office and political organizing.

The discussion of the allied topic, undermining funding for public interest law work, is well worth documenting expansively. I appreciate the links to case precedents provided, as well.
 

There are extensive discussions of this issue at Volokh. See here and here.
 

Them dang pro boners oughter keep they hands in they jacket pockets.
 

JT Davis said...

De Palma... Left leaning law firms

Please name one.


Let us start with the firms who are providing the support and staffing for the attorneys attempting to extend constitutional criminal defendant rights including habeas corpus to foreign enemy combatants for the first time in history. This is not a conservative or even moderate position. A law firm is not going to provide support, including allowing its attorneys to take considerable non billable time, unless they support the objective.

In general, the legal profession is disproportionately left of the nation at large.

The legal academy is dominated by democrats.

http://www.frontpagemag.com/media/pdf/
journalismandlawschoolstudytwo.pdf

My law school had one conservative professor who was the sponsor for every student conservative group. I dare say there is not a single conservative among the professors who post here.

The ABA has a significant bias to the left. The conservative/libertarian Federalist Society has great fun detailing the various leftist positions taken by the ABA on various issues:

http://www.fed-soc.org/Publications/ABAwatch/
abawatch.htm

A recent study on the ABA judicial rating process showed a pretty pronounced favoritism toward Clinton nominees over Bush Nominees with similar professional backgrounds.

http://law.bepress.com/nwwps/plltp/art37/

Law firms make contributions to Democrats at a rate 2-3 times higher than to the GOP.

http://www.opensecrets.org/industries/i
ndus.asp?Ind=K01

Its not like there is an enormous secret conspiracy afoot. Liberals just tend to work in academia, law, media and government the same way conservatives tend to work in business and the military.
 

Nice post, but the aside asserting some kind of parallel between the First Amendment holding of Velazquez and the provision of the Military Commissions Act dealing with the Geneva Conventions is ill-conceived and unconvincing. The statute at issue in Velazquez restricted the speech of the legal services lawyers by stripping their funding insofar as they made particular legal arguments, arguments the merits of which were totally unaffected by the statute. In sharp contrast, the MCA doesn't forbid any lawyer from making an argument on behalf of his or her client (nor does it penalize the making of a legal argument by conditioning it on the denial of funding). Instead, the Act simply makes clear that Geneva Conventions do not provide a source of individually enforceable rights in the courts of the United States. The Act leaves lawyers free to make whatever arguments they wish about the enforceability of the Conventions, but provides that those arguments no longer have legal merit (if they ever did, a point which had not definitively been resolved by the courts). Such a provision, which restates (or changes) the substantive law, is not a limitation on speech, and therefore doesn't even implicate, much less offend, the First Amendment.
 

De Palma,

I'll repeat the question. Please name one.
 

"Bart" DePalma said:

Using political and economic pressure on private business to compel them to cut economic support for disfavored causes is hardly restricted to the political right. The left in the civil rights and labor communities have used this tactic for far longer.

"Proof by assertion". Let's see some evidence. "Bart" is of the habit of ignoring requests for such ... particularly when the assertion he makes is false, which makes his behaviour understandable (although not honourable).

Left leaning law firms have no right to the business of their clients in order to finance their extra circular legal activities....

Cay you say "straw man"?

... Law firms constantly modify their behaviors in order to maintain large clients and to woo others. If a law firm embarrasses its business client, then there are plenty of other lawyers for that client to choose from.

True, but what does that have to do with the price of tea in Sri Lanka?

If working to invent new law in the courts to release terrorist detainees so they can go back to their previous occupations is truly a noble cause, then I am sure that businesses will be pleased to be associated with law firms which pursue such endeavors.

Another "reframing" of the issues by "Bart" (or petitio principi). Not to mention a bit of "poinsoning the well". Standard "Bart" 'rhetoric'....

However, if risk adverse business clients for some reason frown upon such activities, some firms may have to choose between continuing to finance seven figure salaries for its partners or going into the much less lucrative field of public interest law.

Perhaps. It's a persistent problem, as Prof. Luban points out. There are some that are of the opinion that legal issues ought to be settled on the merits, rather than on the basis of who's got the most money for lawyers (the sad plight of Ms. McCaughey, who was pressured by Macky Dee™ into dropping the name "McCoffee's" for her coffee shop comes to mind; Macky Dee seems to think that they've got the friggin' patent on the Scottish surname prefix "Mc" ... but the unarguable facts is that they do have a huge staff of hot'n'heavy lawyers).

Life sometimes requires choices.

"Bart" seems to be of the opinion that it is how much money you're offered to kill someone that is the measure of the rightness of the decision. A rather pathetic "moral framework", IMNSHO.... "Bart" may accuse me of "misrepresenting" his actual position here, but I'm just reporting my take, my understanding, on the values he exhibits. He's free to explain in more detail his thoughts on the moral aspects of "money talks".

Cheers,
 

"Bart" Dealma says:

Let us start with the firms who are providing the support and staffing for the attorneys attempting to extend constitutional criminal defendant rights including habeas corpus to foreign enemy combatants for the first time in history. This is not a conservative or even moderate position. A law firm is not going to provide support, including allowing its attorneys to take considerable non billable time, unless they support the objective.

Of course! Law firms won't take on capital murder cases where the trial and/or sentence was tainted (even though the client may in fact be guilty) unless they're objectively pro-murder.

Just as a FWIW, it's aleady been pointed out that the U.S. Supreme Court did consider the petition for writ of habeas corpus to the Ex Parte Quirin petitioners; they just rejected the granting of the writ on the merits. Had they been of the opinion that no such writ should issue simply because the petitioners were (undisputed) "enemy combatants" and per se had no rights to such a petition due to that status, the decision would have been a no-brainer and there would have been no such Ex Parte Quirin case. "Bart", never one to let facts get in the way of Truthiness™, ignores this....

Cheers,
 

"Bart" Dealma says:

Let us start with the firms who are providing the support and staffing for the attorneys attempting to extend constitutional criminal defendant rights including habeas corpus to foreign enemy combatants for the first time in history. This is not a conservative or even moderate position. A law firm is not going to provide support, including allowing its attorneys to take considerable non billable time, unless they support the objective.

Of course! Law firms won't take on capital murder cases where the trial and/or sentence was tainted (even though the client may in fact be guilty) unless they're objectively pro-murder.

Just as a FWIW, it's aleady been pointed out that the U.S. Supreme Court did consider the petition for writ of habeas corpus to the Ex Parte Quirin petitioners; they just rejected the granting of the writ on the merits. Had they been of the opinion that no such writ should issue simply because the petitioners were (undisputed) "enemy combatants" and per se had no rights to such a petition due to that status, the decision would have been a no-brainer and there would have been no such Ex Parte Quirin case. "Bart", never one to let facts get in the way of Truthiness™, ignores this....

Cheers,
 

Madisonian writes: “...the MCA doesn't forbid any lawyer from making an argument on behalf of his or her client (nor does it penalize the making of a legal argument by conditioning it on the denial of funding). Instead, the Act simply makes clear that Geneva Conventions do not provide a source of individually enforceable rights in the courts of the United States. The Act leaves lawyers free to make whatever arguments they wish about the enforceability of the Conventions, but provides that those arguments no longer have legal merit (if they ever did, a point which had not definitively been resolved by the courts).”

With respect, I don’t agree. Section 5(a) of the MCA states: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” This does NOT state that the GCs “do not provide a source of individually enforceable rights in the courts of the United States.” Nor does it state that GC arguments “no longer have legal merit.” The plain meaning of the text is that litigants are forbidden from invoking the GCs. Period. Whether the GCs do or do not provide a source of individually enforceable rights, and whether GC-based arguments have legal merit, are questions which Section 5(a) does not address. Contrary to Madisonian, there are good reasons for answering both questions yes: most fundamentally, that the Supremacy Clause of the Constitution states that treaties are “supreme law of the land,” and Geneva is a treaty. Furthermore, the MCA doesn't forbid raising Geneva claims in a criminal case, or raising them defensively; that's a good reason for thinking that the MCA wasn't changing the underlying substantive law.

Of course, Congress could, via a later-in-time statute, repeal the GCs. Conspicuously, however, Congress didn’t do so in the MCA. On the contrary, in Section 6 of the MCA, Congress stated that the new legislation implements Geneva.

So section 5(a) appears to be a speech restriction, as in Velazquez, not a change in substantive law. It tells lawyers and clients that they are not permitted to raise GC arguments as a source of rights in a habeas case, regardless of whether Geneva, as supreme law of the land, creates such rights. Section 5(a) should fall under Velazquez.
 

Prof. Luban:

You want to adopt an extremely literal reading of section 5(a), which, in my view, overemphasizes the importance of the word "invoke" and underemphasizes the importance of the phrase "as a source of rights." The latter provides a strong clue that what the provision aims at is not a speech restriction, but a substantive statement about the judicial enforceability of the GCs in a certain category of cases.

Indeed, consider this: under your reading of the text, what's the actual consequence for a lawyer (or litigant) who insists upon raising a GC claim in a civil case? Is he to be disbarred? Held in contempt? Deprived of government funding? Punished in any way? No. The only possible consequence is that the argument would fail as a matter of law. That's quite different from Velazquez. That case stands for the proposition that Congress can't forbid one subset of lawyers from making legal arguments on behalf of their clients that other lawyers would be allowed to make. There's simply no plausible way to read section 5(a) as doing anything like that, and I see little reason to attempt the implausible here.

Finally, you seem to concede (rightly, I think) that under my reading of the provision, it would be a proper exercise of congressional power. So, insofar as there is any ambiguity about what the text means, why would we choose your approach, which you say raises serious First Amendment problems, when there is another, equally (if not more) plausible interpretation under which the provision is clearly constitutional?
 

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