Due process?
    We don’t need no stinkin’ due process!

1. The Deputy Assistant Secretary of Defense for detainee affairs suggested that big corporations threaten to withdraw their business from law firms that represent detainees pro bono.
2. An official Pentagon spokesman disavowed the suggestion.
3. Why hasn’t Stimson been fired?
4. Unlike Mike O’Hare, I don’t think there’s a violation of legal ethics here.
5. But could there be a criminal violation of the civil rights laws?

Mike O’Hare is rightly appalled that the Deputy Assistant Secretary of Defense in charge of detainee affairs is doing his best to deprive detainees of whatever shred of due process policy and legislation have left them, by trying to pressure the law firms defending them pro bono to stop. (Deputy Assistant Secretary Stimson is asking the big corporations who are the paying clients of the law firms to force them to choose “between representing terrorists or representing reputable firms.”)

The implication seems clear: Stimson doesn’t think what is being done under his direction will hold up in court if the people he is maltreating have competent lawyers. I’m glad to hear a Pentagon spokesman say that Stimson’s remarks “do not represent the views of the Department of Defense or the thinking of its leadership.” But Stimson isn’t a career employee; he serves at the pleasure of the Secretary of Defense. If Stimson keeps his job, that will tell us something about Secretary Gates, and about his boss.

I can’t, however, agree with Mike’s assertion that Stimson has fallen afoul of legal ethics. (Though he’s right to say that Stimson seems to misunderstand what a lawyer’s job is when he criticizes lawyers for doing it.) One of the sections Mike cites forbids a lawyer from misrepresenting his own capacity, but not from badmouthing other lawyers. Another forbids a lawyer hired by a third party to represent someone from taking legal orders from the payer. But that situation doesn’t apply here, either. If the corporations acted on Mr. Stimson’s recommendation, they would be acting appallingly, but they’re not bound by the code of ethics and he’s therefore not barred from urging them to act in that way. (Hilzoy says “if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred.” Well, yes. But I don’t think they are, so I guess he shouldn’t.)

On the other hand, it’s arguable that Mr. Stimson has violated criminal provisions of the civil rights acts. The FBI website explains the law this way:

…it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.

Query to lawyers: is that in fact what the statutes and the cases say? The right to counsel is both a Constitutional and a statutory right. Mr. Stimson was trying to deprive the detainees of that right by using the authority given to him by the federal government to intimidate their lawyers.

The website also recites that “the FBI is the lead agency for investigating color-of-law abuses.” Mr. Mueller? Over to you.

Footnote A felony conviction usually carries disbarment with it, so Mike and I could both be happy.


Eugene Volokh hit this one early, and hit it hard.

Paul Horowitz at Profsblawg, like Mike, points to the principle of legal ethics that says that legal representation isn’t an endorsement. He also points out that the Administration has defended some of its judicial nominees by arguing that they bear no responsibility for the misbehavior of their clients. Geese and ganders, always. Horowitz further notices that Stimson’s remarks coincided with an op-ed by a member of the Wall Street Journal editorial board, suggesting a concerted effort.

Furthering that suggestion, Andrew Sullivan reports that there’s been a campaign of harrassment against the lawyers and their firms.

Josh Marshall has more on the same point.

Volokh Conspirator Jonathan Adler, who teaches at graduated from George Mason University law school, regrets to learn that Stimson is a GMU grad. “I guess he must have slept through professional responsibility.”

Update Answers from readers:

1. Since Stimson didn’t directly threaten the law firms or attempt to coerce the corporations to threaten them, he probably wasn’t committing the criminal civil rights violation of depriving someone of a right by official action.

2. If he’s thought of as a prosecutor, he might be liable to professional discipline for trying to deprive defendants of their choice of counsel.

Second update and bleg for information A reader is curious about whether Cully Stimson might be related to Henry Stimson, FDR’s Secretary of State, who insisted that even Nazi war criminals were entitled to a fair trial before they were hanged. That would be ironic. Does anyone know if it’s true?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com