By Andrew Cohen
Special to washingtonpost.com
Wednesday, January 17, 2007 12:00 AM
Here is how our executive branch last week waged its legal war on terrorism against the detainees at Guantanamo Bay, Cuba. While federal lawyers and intelligence officials earnestly prepared behind the scenes to put on trial some of the major terror suspects, a skuzzy Pentagon lawyer was front and center on the radio attacking the motives and integrity and even the patriotism of detainee defense attorneys and the law firms that support them.
One hand of government prepares in secret for the upcoming battle by identifying workarounds to constitutional due process and the congressional mandate that information gleaned from torture may not be used in the military commissions that may be up and running this summer. The other hand of government works in broad daylight to undercut perceptions about the loyal opposition by suggesting that the law firms whose attorneys work for free on these detainee cases -- it's called pro bono work and it is the law's highest calling -- may be taking money from terrorists or other nefarious sources.
On Friday we learned from the New York Times that the "Bush administration has set up a secret war room in a Virginia suburb" so that government attorneys and military officials can sort through "classified files" containing among other things the "interrogation reports" of top-shelf detainees like Khalid Sheik Mohammed. Their goal is to prepare to try Mohammed and other high-level terror suspects (like fellow 9/11 planner Ramzi Binalshibh) under the Military Commissions Act of 2006, a new federal law that set the rules that govern how the men may be tried.
"Prosecutors could use hearsay evidence or second-hand testimony, but could not use information obtained under torture," report the Times' Neil Lewis and David Johnston. "Even so," they add, "that would mean virtually any information obtained by the C.I.A would appear to be admissible because, under Justice Department legal opinions, none of the harsh techniques amounted to torture." That's certainly convenient in theory -- we'll see how viable it is in practice. Remember, the new Congress has the right to look anew at the Commissions Act and the federal courts have yet to resolve the new questions it raises.
If there is nothing surprising about a group of prosecutors preparing for trial -- even the sort of one-sided terror mega-trial that U.S v. Mohammed would become -- it is, as The Washington Post suggested Friday, downright shocking that a government attorney would denigrate the work of attorneys and their colleagues who have chosen to help men who sometimes quite literally have no one else on their side. The malfeasant culprit is a man named Charles "Cully" Stimson, deputy assistant secretary of defense for detainee affairs, and there is simply no excuse for the tone or the tenor of the remarks he made Thursday on Federal News Radio.
Usually, administration officials take pot shots at the detainees -- calling them "killers," for example, even when the vast majority of them are not. But Stimson took his shots at the powerful law firms that have allowed and in many cases encouraged their bright attorneys to represent the detainees. According to The Post, 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...."
Stimson also attacked the motives of the men and women, and their bosses, who have accomplished so much in defending the rights of the grim men in Guantanamo Bay. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that." You don't need to understand the rich history of pro bono work in this country to understand how odious Stimson's remarks are, or how much of a threat they constitute to men and women of goodwill everywhere.
For the sake of argument, however, let's look a bit at the American Bar Association's Model Rules of Professional Conduct -- guidelines for how lawyers ought to behave. Rule 6.1 "Voluntary Pro Bono Publico Service" states that "every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono... legal services per year and should "provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights." I can think of no other cause that better satisfies this solemn responsibility than providing legal help to the Gitmo detainees. Can you?
Now let's spend a minute looking at Stimson's responsibilities as a government lawyer or as a spokesman for federal attorneys. First, Rule 3.4 "Fairness to Opposing Party and Counsel" states that a lawyer "shall not... allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witnesses, the culpability of a civil litigant or the guilt or innocence of an accused."
Even though Stimson is not now technically a prosecutor, he was one, once, and thus should know about Rule 3.8, too. It states that a prosecutor in a criminal case shall "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused..." and shall "make reasonable efforts to assure that the accused.... has been given reasonable opportunity to retain counsel." No doubt Stimson and his supporters would argue that the detainees do not deserve these "courtesies" because they are not defendants in our civilian courts. That is no argument against treating opposing counsel with the respect and dignity they deserve.
American Bar Association President Karen J. Mathis wrote Friday: "Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work -- and doing it on a volunteer basis -- is deeply offensive to members of the legal profession, and we hope to all Americans." She is right. Stimson should be immediately fired for what he said last week and, furthermore, he should be investigated for breaching the code of professional ethics. Not only were the remarks nasty, they were politically and diplomatically unwise.
What Stimson said, and why, and how, constitutes conduct unbecoming a member of government and a member of the bar. One hand may be acting aggressively, if not mercifully and justly, toward prosecuting suspected terrorists. But the other hand, Stimson's hand, is undercutting the very principles we fight for. This is how our government waged the legal war on terror in our name last week.