Form and substance

“Cully” Stimson just lost his job. John Yoo is still teaching at Berkeley. Abstract principles are easier to agree on than concrete applications. Too bad, but that’s the way it is.

Suggesting a corporate boycott of major law firms for providing pro bono representation to detainees has cost Deputy Assistant Secretary of Defense Charles “Cully” Stimson his job.


And kudos to the conservatives (including conservative bloggers) who weighed in on the right side of the issue. (That category does not, as far as I can tell, include any Republican Senators or Members of Congress.) The principle that you lose your job as a political appointee for even trying to futz with the right to counsel is an excellent one.

Unfortunately, all of the people responsible for the actual torture and arbitrary detention those pro bono lawyers are fighting still have their jobs.

NO, there’s no real puzzle here. Form is easier to agree on than substance. If you believe in the rule of law, which means among other things that even people the government doesn’t like get to have lawyers, then Stimson’s comments were clearly over the line. That doesn’t depend on any specific opinion about what the detainees did, or what, exactly, is being done to them, or how they should be treated, or what Common Article III of the Geneva Conventions means who who it applies to, or even whether detainees get habeas corpus.

I fervently wish there were more consensus on those substantive questions than there seems to be. I hope to see war crimes trials after the current ruling clique is booted from power. But at least the bedrock principle of government under law remains uncontroversial. Let’s give thanks for small blessings.

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: