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January 15, 2007
The Stimson Fuss
A great deal of fuss has been made about the comments made by Cully Stimson, the deputy assistant secretary of defense for detainee affairs. It seems to me that Stimson's remarks were more circumspect than they are being made out to be.
My explanation (and disclaimers), after the jump...
The money quote from Stimson: "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. And we want to watch that play out."
Eugene Volokh argues, "It seems to me quite clear from the interview that the Secretary isn't merely predicting such an action by the law firms, but also saying that such an action would be good." I respectfully disagree. The sentence is just a prediction. At the very least, he is not "saying that such an action would be good," though he may by silence be implying it. Moreover, the last two comments suggest that Stimson may have had information that led him to believe that the views of one or more CEOs would become apparent in the next few weeks. Given the mini-scandal, this now seems quite unlikely.
Money quote #2: After calling the list of law firms representing detainees "shocking," Stimson says, in response to a question about who is paying, "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." In this quote, Stimson explicitly states that he suspects that many lawyers are doing the representation out of the goodness of their hearts. He then notes "curious[ity]" about where the other money comes from. I'd be curious to hear who pays for the representation too. That falls far short of a claim that lawyers are being funded by terrorist front organizations.
Is it fair to infer that Stimson probably thinks it's not so bad that CEOs would be upset at law firms that represent detainees? Sure, someone who thought that it would be terrible for CEOs to put any pressure on corporations probably would have said so. And he probably would have used the word "surprising" rather than "shocking" if he disagreed with his anticipated view of CEOs. But Stimson himself was careful not to condemn the law firms, and he certainly did not encourage corporations to dump law firms. Yet the NY Times headline (which cannot, of course, be blamed on the writer, Neil Lewis), states, "Official Attacks Top Law Firms Over Detainees."
The NY Times concludes its article by quoting Stimson in an earlier interview saying that he was learning "to choose my words carefully because I am a public figure on a very, very controversial topic." I would imagine that Stimson wishes he could take back his words on the law firms. But I think Stimson was in fact speaking carefully. The lesson we should perhaps all learn is that one can speak too carefully, because when one carefully limits what one says, others will make reasonable inferences about what someone who says that probably also believes.
The NY Times editorial, incidentally, was particularly unfair in its last paragraph: "Not only do we find Mr. Stimson’s threats appalling, we differ with him about 9/11. The tragedy and crime of that day was that thousands of innocents were slaughtered — not that it hurt some companies’ profit margins." Nothing in Stimson's remarks could be interpreted as finding the lost corporate profits as a result of 9/11 worse than the murders. It seems uncontroversial to observe that CEOs might be upset, inter alia, about the economic effects of the attacks.
One final point: As Jonathan Adler notes, a "senior U.S. official" was quoting in the Wall Street Journal as encouraging corporate CEOs to ask firms representing them not to represent alleged terrorists. We don't know whether Stimson made those remarks. But even if he did, that shows that he was making an effort to separate his personal views from the official Administration position, limiting himself in his on-the-record remarks to making only descriptive comments.
DISCLAIMER: Cully is a friend of mine. So are Eugene and Jonathan. I like Neil Lewis too, but I admire him only from afar.
DISCLAIMER 2: Like the Attorney General, I think that it's great that top law firms are representing the detainees. I disagree with, but do not find reprehensible, the view that law firms could spend their resources on more worthy causes.
Posted by Michael Abramowicz at January 15, 2007 10:40 AM
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Comments
What would you think if an independent political group (say, a retired 527) started publishing a list of corporations that did business with the law firms in question, and government contracting decisions tended to favor corporations that were not on that list?
The point I'm trying to make is that there are many deeply troubling slippery slopes we start to go down when government officials begin to impugn the patriotism of those representing clients who are challenging the government.
Stimson's remarks are wholly understandable and First Amendment-protected as the expression of a private citizen. But when he says "we want to watch that play out," who is the "we" he is referring to? Is that "we" part of the K-Street project that has, in Grover Norquist's memorable words, tried to assure that even the secretaries in lobbying firms are Republicans?
This is a very thoughtful post as a defense of Stimson, but his conduct has to be situated in the overall political situation.
Posted by: Frank at January 15, 2007 12:13 PM
Your commentary, while at least colorable in its logic, does not comport with the substance of Mr. Stimson's comments. It is simply niave to think that the "prediction" of an administration official in the press of an eventuality with which he agrees can be separated from an attempt to influence public opinion. It is clear both from Mr. Stimson's tone and the context of his comments in the interview that he disapproves of the involvement of major firms in fighting administrative policies. He is responding to a discussion regarding the negative publicity the facility has received in the press by suggesting that in fact, the law firms and lawyers at issue will receive negative PR. The very purpose of giving the interview was to shift the focus of public opinion about Guantanamo to another source. That he brought up the topic (unsolicited, I might add), shows that he thought it important that listener's hear about the "hypothetical" pressure that CEO's (who might just be in the audience) would place on there firm clients. Interview statements on the radio cannot be separated from the context of their audience or the overall purpose of the interview, especially from someone whose job entails being a mouthpiece for the administration's public relations efforts. (unless, perhaps, if you believe Shakespeare's Marc Anthony really did believe that Julius Caesar was an "honorable man").
Posted by: anonymous at January 15, 2007 02:32 PM
Heh -- what anonymous said above about Caesar being an honorable man.
You're bending over backwards to defend a friend. I suppose I can't blame you for it, but it doesn't make you correct. Anyone who has read Stimson's comments in full understands EXACTLY what he was saying and what he was doing. That's why the Defense Department has disavowed the comments.
I admire your courage in standing up for your friend. But we all know what was really going on.
Posted by: NCProsecutor at January 15, 2007 03:34 PM
Your friend clearly was implying (or hoping people would infer) that funding is coming from terrorist front organizations.
Also, you failed to mention your friend's statement, (what follows is from CNN's reporting) that Guantanamo, is "certainly, probably the most transparent and open location in the world" because of visits from more than 2,000 journalists since it opened five years ago. However, journalists are not allowed to talk to detainees on those visits, their photos are censored and their access to the base has at times been shut off entirely.
He discounted international outrage over the detention center as "small little protests around the world" that were "drummed up by Amnesty International" and inflated in importance by liberal news media outlets.
(Done with CNN's reporting)
Your friend is a little and deserves to be fired. I don't know if he had to swear to uphold the Constitution when he took office, but he's certainly NOT doing that (please refer him to the 6th amendment).
Posted by: Dave at January 15, 2007 04:19 PM
Stimson knows what he is doing. It is an old patrician dirty trick that the Skull and Bones types have been doing from time immemorial. He is trying to make pressure on law firms about this a permissible action by the WASP elite (his social club) with control of corporate budgets. As many, he is willing to sell out American principles for his employer. He can go to hell after he watches the Good Shepherd.
Best,
Ben
Posted by: Ben Davis at January 15, 2007 09:26 PM
Frankly, I don't understand all the fuss about this. I personally don't think Stimson's remarks were as bad as they're being portrayed, but even if they were, this kind of intimidation happens all the time without any uproar. When I was a baby lawyer, I represented a homeless client as part of a legal clinic pro bono program. The client sued a major hotel because it kicked him out of its restaurant even though he had money to pay for his meal. The hotel was represented by a big firm that also did work for the clinic and threatened to pull its support if the suit wasn't dropped. So the clinic dropped me, and I handled the case on my own. Big deal. Right now, I represent clients who are suing a municipality 3 hours outside of DC, where I practice. My clients couldn't find a local attorney because all were afraid to touch the case for fear of reprisal. Even think of Atticus Finch - he too was ostracized.
This is all part of being a lawyer. Lawyers make tough choices. The biglaw firms who took on representation of Gitmo detainees now face a choice: continue their representation, as they are ethically bound to do and possibly lose a client. We solos and small firms make those hard choices everyday. That's what being a real lawyer is.
Posted by: Carolyn Elefant at January 15, 2007 10:07 PM
Stimson was clearly arguing that CEOs of large law firm clients should put pressure on their law firms to stop representing Gitmo detainees or should threaten to take their business elsewhere. Any other interpretation is absurd. It is quite obvious if you listen to the actual interview. He did not say "And we want to watch that play out," as you and others have quoted him. In fact, he said "It would be FUN to watch that play out." His glee at the prospect of these firms being pressured to drop these cases was obvious. He should be fired immediately, but of course that'll never happen.
Posted by: Fred Flint at January 16, 2007 10:13 AM
Carolyn:
The difference is that Stimson was acting as a *federal government official*, not a private party, in calling (yes, he was calling) for CEOs to boycott firms who were representing clients in cases against the *federal government.*
That's quite different than Joe private citizen choosing to replace firm A with firm B because firm A represents somebody I don't like.
Posted by: Joseph Slater at January 17, 2007 03:58 PM
