MEA CULPA MINIMUS

By William Fisher

The senior defense department official who suggested that major corporations should stop doing business with large law firms who represent Guantanamo Bay detainees without charge has apologized for his remarks – but his apology has failed to satisfy some legal and human rights advocates.

The remarks were made on a Washington, D.C. radio program on Tuesday by Charles D. “Cully” Stimson, a deputy assistant secretary of defense and a former Navy defense lawyer. They drew an avalanche of anger from lawyers, legal ethics specialists, and bar association officials, who said they found his comments repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.

Lawyers expressed outrage at that, asserting that they are not being paid and that Mr. Stimson had tried to suggest they were by innuendo. Of the approximately 500 lawyers coordinated by the Center for Constitutional Rights, no one is being paid. One Washington law firm, Shearman & Sterling, which has represented Kuwaiti detainees, has received money from the families of the prisoners, but Thomas Wilner, a lawyer there, said they had donated all of it to charities related to the September 2001 terrorist attacks.”

The Pentagon disowned Stimson’s remarks and said they did not represent DOD policy.

Attorney General Alberto Gonzales also disowned Stimson’s remarks. "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases," he said.

But in a speech in Washington on Wednesday, he said Guantanamo defense lawyers were responsible for much of the delay in charging detainees and putting them on trial.
He was apparently referring to the delays caused by a lawsuit brought by a Guananamo detainee, Salim Ahmed Hamdan, against then Secretary of Defense Donald Rumsfeld, in which some of the lawyers referenced by Stimson participated.

That suit resulted in the U.S. Supreme Court last summer striking down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it. The court ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

Congress then passed the Military Commissions Act (MCA), which is also being challenged in the courts.

Yesterday, Stimson issued an apology, published in the Washington Post newspaper.
It said, “Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not," Stimpson wrote in response to the furor over his remarks. "I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs," he wrote.

Stimson also said he supports pro bono work and believes the legal system works best when both sides have competent legal counsel.

But his apology failed to satisfy some legal and human rights advocates. Mary Shaw of Amnesty International USA, told us, “Stimson's apology illustrates that he recognizes the grave unfairness of his earlier attempts to discredit the attorneys who represent Guantanamo detainees. Everyone is entitled to due process, including legal representation, and the prisoners at Guantanamo are no exception. This is especially important considering that many detainees have already been released when it was determined that they had been wrongly imprisoned. Supposedly, one is presumed innocent until proven guilty. Discrediting those who work to ensure justice for our prisoners is akin to discounting the very concept of justice.”

And Michael Ratner, President of the Center for Constitutional Rights – an advocacy group that has been responsible for organizing much of the legal representation for Guantanamo detainees -- told us, “After the outcry, what could Stimson do except apologize? But, sadly, his remarks were part of a policy that was approved at the highest levels. This is demonstrated by Gonzales’s fallacious claim that the Guantanamo lawyers are responsible for delaying the trials of Guantanamo detainees and by his attacks on judges who have said Guantanamo detainees have rights. The apology may quiet the waters for a moment, but the denial of fundamental rights to detainees is still at the heart of the administration’s practices.”

The controversy appears to have been triggered when a conservative radio talk show host, Monica Crowley, filed a request under the U.S. Freedom of Information Act for the names of all law firms representing Guantanamo detainees. The information she received contained the names of 14 prominent law firms, 12 of which were named by Stimson in his radio interview.

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."

He then went on to say, “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.”

When asked in the radio interview who was paying for the legal representation, 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.”

The outcry from legal experts and civil and human rights organizations was swift. Four law organizations said in a letter to president Bush that Stimson should be fired for remarks that were aimed at "chilling the willingness" of lawyers to represent Guantanamo detainees.

"The threats by Mr. Stimson are not subtle. They imply these pro bono lawyers are terrorists," read the letter signed by the American Association of Jurists, the International Association of Democratic Lawyers, the National Lawyers Guild and the Society of American Law Teachers.

Stimson's remarks were aimed at "chilling the willingness" of lawyers to represent Guantanamo detainees and were contrary to the "bedrock principles" of the right to counsel and the presumption on innocence, the letter read.

Secretary Stimson should be fired immediately, said George Washington University law school Prof. Jonathan Turley, appearing on Keith Olbermann’s “Countdown” TV show. He asked rhetorically, “What does it take to get someone fired in the Bush Administration?”

But Stimson’s remarks were supported in an editorial in the Wall Street Journal. In a editorial by Robert L. Pollock, a member of the newspaper’s editorial board, 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.”

This is not the first time US military officials have criticized Guantanano defense lawyers. In March of last year, Col. Moe Davis, chief prosecutor for the Guantanamo tribunals, told journalists that several major law firms that have defense contractors as paying clients are providing pro bono lawyers to defend Guantanamo detainees in habeas petitions.

"It's somewhat ironic that the weaponry that we use in the war on terrorism is helping fund the defense of the alleged terrorists," Davis said at the time.

About 50 U.S. federal public defenders are also representing Guantanamo detainees, pro bono, in habeas corpus petitions.

About 395 prisoners remain at the Guantanamo prison camp, suspected of al Qaeda and Taliban links. More than 770 captives have been held at the facility which opened five years ago, soon after the U.S.-led invasion of Afghanistan in response to the September 11 attacks. Only 10 detainees have charged with crimes.

In the environment created by fear of further terrorist attacks, the question of whether Secretary Stimson’s apology is sufficient is academic. His point of view continues to reflect the Bush Administration’s attitude toward the rule of law and the centrality of due process – even for accused terrorists.