The Substantially Similar Weblog

The New York Times reports that the Pentagon has gone on the offensive against the pro bono attorneys representing Guantánamo detainees. Although there is a lot to criticize in U.S. detainee policy, these attacks represent a new low:

The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties.

…

The same point appeared Friday on the editorial page of The Wall Street Journal, where Robert L. Pollock, a member of the newspaper’s editorial board, cited the list of law firms and quoted an unnamed “senior U.S. official” as saying, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”

In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s 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. And we want to watch that play out.”

Perhaps the worst part is the following statement, which as best I can tell has no basis in truth:

When asked in the radio interview who was paying for the legal representation, Mr. Stimson replied: “It’s not clear, is it? 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 moneys from who knows where, and I’d be curious to have them explain that.”

Deval Patrick, the recently-elected governor of Massachusetts, endured similar attacks for his work representing criminal defendants. Fortunately, that strategy backfired and Patrick was elected in a landslide.

Although others in the administration have attempted to distance themselves from Stimson’s comments (including the Attorney General), the suggestion that large corporate clients should boycott these attorneys as punishment for representing detainees remains disgusting. The right to counsel is not a political issue. You could hold the unlikely belief that each and every Guantánamo detainee is a confirmed terrorist and still advocate for fair treatment. These attacks represent a new brand of McCarthyism. I hope that this strategy is as unsuccessful nationally as it was in Massachusetts.

It strikes me that attacking the partners of some of the largest firms in the country is also bad political strategy. These attorneys are the type of people who may be major campaign donors and well-connected in both parties. I would think twice before attempting to vilify them. They are unlikely to drop their representation (and might be ethically barred from doing so) in light of these statements. If anything, I suspect their determination to ensure the detainees are accorded due process will intensify.

Update: abovethelaw.com speculates that this may be an intentional good cop/bad cop strategy.

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