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.
Posted 11:43 AM by David Luban [link]