Monthly Archives: January 2007

A Partial Apology from Cully Stimson

Posted on January 17, 2007 by Michael Froomkin

National whipping boy, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson, has an apologetic letter in today's Washington Post. If it was sincere, it's a handsome apology as far as it goes (it's limited to the attack on the ethics of the lawyers involved, and fails to address the not-very-veiled suggestion that their clients boycott them).

Unfortunately, there are three good reasons to question its sincerity.

An Apology to Detainees' Attorneys

Wednesday, January 17, 2007; A18

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. 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.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients — people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

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.

CULLY STIMSON

Deputy Assistant Secretary of Defense for Detainee Affairs

Defense Department

Washington

There are three reasons to doubt the sincerity of this letter.

First, there's the coordination: it wasn't just a slip of the tongue in a radio interview. The suggestions that institutional clients should either boycott firms which represent detainees or should pressure them to drop the cases was backed up by a Jan 12 column in the Wall Street Journal, which mentioned “A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done … appears to be subsidized by legal fees from the Fortune 500.” Or, as one wag put it, nice law firm you got there, be a shame if anything happened to it.

Second, there's Stimson's own Defense Department's general attack on US lawyers trying to use the courts to ensure civil rights for detainees — they call it “lawfare” and discuss it as a form of aggressive action by the US's enemies. (Lawfare is sometimes defined as the strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.) In other words, Stimson's comments were more or less in line with the administration's official views, views he might even have had a hand in forming.

Third, there's Stimson's facility at saying stuff that just isn't true. Does anyone actually believe that Guantanamo is “the most transparent and open location in the world” — when journalists can't interview most of the inmates, and the government has fought tooth and nail to even prevent a list of their names from being released?

I think the combination of these circumstances and the failure to address the boycott issue means that this letter doesn't close the issue. Mr. Stimson should resign. If he doesn't then Congress should hold some hearings.

Posted in Law: Ethics | 2 Comments

We Have Great Students

Posted on January 16, 2007 by Michael Froomkin

I finished my grading the other day. I'm pleased to say that by and large the students in both Internet Law and Jurisprudence did really well. I turned in the highest grades I've given in years, maybe ever. Lots of A's.

Average score on the final for Internet Law was an astounding 3.14 (out of 4.0); by the time I factored in class participation the class average rose to a 3.29. I round down, so that 3.29 became a B, but even so about a quarter — a quarter! — of the class got an A.

The scores were even higher in Jurisprudence (a very small, and thus somewhat self-selected class): The exam average was 3.25 and the final average was 3.38. A third of the class got an A (including one A+ — not that it has any official meaning).

It's possible I just gave easy exams this year, but while I suppose they were a little predictable if you were paying attention, I don't think they were all that easy. We have great students — and they keep getting better.

Posted in U.Miami | 6 Comments

Stimson Getting it From All Sides, Deservedly

Posted on January 16, 2007 by Michael Froomkin

From the right: Professor Charles Fried discusses legal representation in America. (Well worth reading.)

From the center and the left:

George W. Bush
President of the United States
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear President Bush:

The undersigned organizations call for the censure of Mr. Charles “Cully” Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, for statements attacking the lawyers who are defending the Guantánamo detainees. Mr. Stimson's remarks are aimed at chilling the willingness of lawyers to represent those persons imprisoned at Guantánamo, and are contrary to bedrock principles of the right to counsel and the presumption of innocence.

The threats by Mr. Stimson are not subtle. They imply these pro bono lawyers are terrorists. They exhort corporations to pull business from the firms where these lawyers are employed. These remarks are slanderous, and violate the free association rights of these lawyers and their firms.

We are confident that the corporate world will understand that Mr. Stimson's remarks are contrary to fundamental American values and that lawyers who provide representation to Guantánamo detainees, are acting in the best tradition of their profession. The legal profession and the corporate community should speak with one voice and tell Mr. Stimson he has no right to interfere with the relationships these law firms have with their clients.

The Administration should heed the words of Federal Judge Green, who has handled the many habeas petitions, when she said: “I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service.”

The administration must not only disavow these remarks, but Mr. Stimson should be publicly admonished and relieved of his duties for making these allegations and threats.

American Association of Jurists
International Association of Democratic Lawyers
National Lawyers Guild
Society of American Law Teachers

cc: Attorney General Alberto R. Gonzales
Secretary of Defense Robert Gates

In any normal administration he would resign. But this is not a normal administration: it's deeply corrupt in both the ethical and the financial sense.

Posted in Law: Ethics | 3 Comments

Guess Where

Posted on January 16, 2007 by Michael Froomkin

Guess what country this newspaper is talking about here:

  • The President “has suffered a potentially fatal blow to his authority”
  • In “an unprecedented rebuke,” 150 members of the legislature signed a letter bitterly attacking his policies. The signatories included many of “the president’s former fundamentalist allies, now apparently seeking to distance themselves as his prestige wanes.”
  • The mounting criticism is fueling speculation that the President is politically doomed. Observers have even suggested he might be impeached and removed from office.

France? The US? Israel? Newly democratic Iraq? Somewhere else?

Answer below.

Continue reading →

Posted in Politics: International | 4 Comments

In Our Names

Posted on January 15, 2007 by Michael Froomkin

Joseph Margulies has a hard-hitting article, U.S. can’t tell a combatant from a cook in the Chicago Tribune.

We’ve known that there were a lot of innocent people at Guantanamo, but this many?

The Pentagon’s data show that only 8 percent of the prisoners at the base are even alleged to have been Al Qaeda fighters–assuming the allegations against them are true.

Even slave laborers are classified as “enemy combatants”:

Officers told [Abdul] Aliza that having been kidnapped by the Taliban and forced to serve as a cook or a waiter was irrelevant to whether Aliza was an enemy combatant. Aliza found this impossible to comprehend.

“You mentioned that being forced and not being forced are the same,” Aliza told his interrogator. “How can a person that is forced or not forced to do something be equal? . . . [I]f I was taken by force by the Taliban, how can I be a member? If I’m not willing to do something, but forced by a soldier to do it, how can the two have the same meaning. . . . If you don’t agree with them they will beat and torture you and then throw you in prison.”

No one answered Aliza’s questions, and authorities decided he was an enemy combatant. As of late 2006, Aliza was still at the base. He may be there still; the Pentagon refuses to say.

So, correct me if I’m wrong, but under this logic, Jewish inmates in Nazi concentration camps could today be considered “enemy combatants”?

Kafka. It’s pure Kafka:

In summer 2005, the Bush administration announced that 70 percent of the base’s prisoners had been slated for release because they were not a threat. It never happened.

Though some were released, most of the prisoners continue to languish at Guantanamo and, the administration says, may be held there for the rest of their lives, with no evidence presented against them and no opportunity to plead their case in court.

Much of the problem has to do with the words and definitions the administration uses.

Being an enemy combatant does not mean a prisoner did anything wrong, the administration said in documents written by the Department of Defense in 2004.

My tax dollar at work. And yours, if you’re a US taxpayer too.

Surely there must be something we can do about this besides carp and bear witness?

Posted in Guantanamo | 3 Comments

UK-France Merger Discussed in 1956

Posted on January 15, 2007 by Michael Froomkin

Stranger than fiction.

Guardian, France and UK considered 1950s ‘merger’,

Britain and France talked about a “union” in the 1950s, even discussing the possibility of the Queen becoming the French head of state, it was reported today.

On September 10 1956, Guy Mollet, the then French prime minister, came to London to discuss the possibility of a merger between the two countries with his British counterpart, Sir Anthony Eden, according to declassified papers from the National Archives, uncovered by the BBC.

Not, it seems, a joke, as it’s also at the Times, Were we nearly les franglais?

Traumatised by Suez and the fighting in Algeria, a desperate French Prime Minister floated the idea of merging with Britain in 1956 and installing the Queen as head of state of the two countries, the BBC will report tonight.

Records of conversations between Anthony Eden, the British Prime Minister, and his Cabinet Secretary, Sir Norman Brook, show that the idea was swiftly dismissed but that serious thought was given to a secondary proposal to make France a member of the Commonwealth.

Posted in UK | 2 Comments