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Top lawyers defending themselves over defending Gitmo detainees

By See-Dubya  •  January 14, 2007 03:08 AM

Saturday’s New York Times identifies by name the anonymous senior government official who talked to the WSJ’s Rob Pollock about the lawyers at Gitmo and said that major American law firms were effectively subsidizing the interned terrorists. The Times names him as Charles Stimson, deputy assistant secretary of defense for detainee affairs.

Law professors and legal ethics bigwigs are spontaneously exsanguinating over Sec. Stimson’s comment. Here’s the ABA’s president, Karen Mathis:

“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.”

I said this below, but I’m going to make it more clear: I think the detainees in Gitmo ought to have legal representation. They’re in a position where some of them will probably enter the criminal justice system, and our criminal justice system is an adversarial procedure where they have constitutional right to counsel. Furthermore, I’m not quite so naive to think that lawyers should only work for innocent people or defend only popular defendants. That said:

All lawyers are required to perform a certain number of hours–usually around fifty–of pro bono work each year. Where to do that work is up to the lawyer. (Sometimes lawyers are assigned to work pro bono on a specific case by a judge. That doesn’t seem to be what happened here.) A lawyer could fulfill his requirement down at the battered women’s shelter, helping abused women get VPO’s to restrain the unchivalrous louts who worked them over. He could defend poor people who risk losing their property to a rapacious municipality emboldened by the Kelo case into pushing the limits of eminent domain. He could help low-income seniors prepare their wills. He could defend a penniless musician in an intellectual property dispute against a giant corporation.

But none of that is quite as edgy and sexy as defending terrorists in Gitmo. That’ll get your name in the paper (well, not the New York Times, who unlike the WSJ didn’t actually give the names of the firms involved) and start a little buzz at the right cocktail parties. That’ll get you invited to speak at the local ACLU chapter–maybe even a guest lecture at the local law school or your brief cited in a law review article. You might get to write op-eds in the big papers (like this guy) or go on TV and talk about how those nasty guards at Gitmo slapped your client on the tummy. It’s actually a pretty savvy career move, defending a terrorist.

Let me be clear. I don’t necessarily begrudge any individual lawyer’s decision to do pro bono work with the Gitmo detainees. What dismays me is, in the aggregate, the rush of so many of our “best and brightest” lawyers from so many top firms to defend monsters like Khaled Sheikh Mohammed. As I asked in my post below, how many of these firms sent large delegations to defend accused Marine Ilario Pantano from his charges? (A casual survey of the pro bono information on the websites of the firms the WSJ listed suggests that if they have been helping out the armed forces, they’re not bragging about it–though some of them are talking up their work at Gitmo.)

Then should one lawyer’s choice (or one’s firm’s choice) of pro bono gigs be completely above judgment by clients? I don’t think it should. Non-lawyers should avoid what Ace has dubbed “The Orcinus Syndrome” and acknowledge lawyers’ professional understanding of the substance of the law. But as for the morality or the wisdom of their decisions, well, everyone can reach an opinion on that.

So why is the legal establishment so troubled that Stimson, himself a lawyer, suggests that there is a bit of an unseemly rush into the Gitmo-lawyer limelight? After all, these firms all brag about their commitment to pro bono work. It’s supposed to generate good publicity for the law firm. Aren’t the firms’ corporate clients smart enough to make up their own minds about the firms’ pro bono record, just like they would evaluate their paid work?

And isn’t it even possible that defending Gitmo inmates may be adverse to a corporate client’s interests? (E.g., a corporate client that is trying to secure a contract to ship goods to the Guantanamo Bay naval base?)

Where Stimson goes over the line is, I think, on the implication of whether the pro-bono lawyers are actually getting paid for their work. That’s not the kind of accusation you throw around without some evidence to back it up. As I said above, it’s a good career move for individual lawyers, and it doesn’t require a secret financial motivation to explain it.

Well, it doesn’t require it. But even if some clients may not like working with a firm who sends its brightest minds down to Gitmo to defend detainees, certain big clients might not mind very much at all.

The full list of law firms involved was made public through a FOIA request by Monica Crowley, who doesn’t have it up on her site yet–but we’ll be watching.

Posted in: Gitmo

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