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Colonel Davis Versus Cully Stimson - Continued:

Cully Stimson provoked legitimate outrage because he sought to encourage sanctions against private attorneys for the mere fact they represented military detainees. His remarks were contemptible because they struck at the principles upon which the American justice system depends. Colonel Davis, on the other hand, criticized a military officer (in a different service) who is serving as a detainee's defense attorney for specific conduct — public statements to the Australian press about the U.S. government's conduct. Regardless of whether Col. Davis' criticisms of Major Michael Mori are correct on the merits, his remarks are not comparable to those of Cully Stimson.

As the comments to my last post indicate, some disagree. Mark Kleiman is outraged by Colonel Davis' comments, likening the Gitmo prosecutor's remarks to Stalinist persecution of political dissidents.

Back in the Stalinist days of the Soviet Union, someone could be held in prison without charges for five years, tortured, and then charged under a law that hadn't even been passed when he was picked up. If he ever got a trial at all and his defense attorney, in the course of defending him, dared to criticize the Party Secretary or the Defense Minister, the prosecutor could charge the defense attorney with "using contemptuous language toward high officials," a charge for which the defense attorney could be sent to prison.

Aren't you glad we don't live in such a country?

Oh, wait ...

I think the comparison is more than a bit overwrought.

Major Mori is not a private defense attorney, or even a public defender. He is a military officer. As such, he is bound by the military's code of conduct, whether or not he's representing a detainee or anyone else. Thus, he does not have the same freedom to fly around the world giving press conferences and stirring up political opposition to the prosecution of his client as do private attorneys — but this was true before he started representing alleged enemy combatant David Hicks. The limitations on what Major Mori can say are a consequence of his being a military officer, not his participation in this case. Defense attorneys remain perfectly free to criticize their government and public officials without fear of government retribution. I agree with Kleiman that military commissions are less hospitable to defendants than civil courts, and I am willing to believe that the charges against David Hicks may be overstated, but that doesn't make Col. Davis' recent comments tantamount to Stalinist persecution.

While I am willing to give Col. Davis a clean bill of health for his latest remarks, it appears Davis said some things last year that may have put him in Cully Stimson territory. As reported by Tony Mauro in the Legal Times last March, at a press conference in Guantanamo, Davis said it was "ironic" that the same law firms that represent corporations with large defense contracts were also doing pro bono work for detainees.

The nearly united front among the nation's legal elite against the White House has not gone unnoticed by the administration. In remarks at a press conference at Guantanamo Bay Naval Base earlier this month, the Defense Department's chief prosecutor for the military commissions there, Air Force Colonel Moe Davis, said it was "ironic" that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guantanamo detainees pro bono.

Miami lawyer Neal Sonnett, the American Bar Association's observer in Guantanamo, said when he heard the comment he took immediate exception, saying at a press conference that if it was meant to intimidate law firms, "it was beneath Colonel Davis' rank and status."

Sonnett, a former president of the National Association of Criminal Defense Lawyers, added, "These lawyers and their firms are true patriots."

Some who heard Davis' remarks thought he was referring specifically to Perkins Coie, the Seattle firm that has represented Hamdan from the beginning of his challenge to his detention in 2004. Perkins Coie is one of several law firms employed by Boeing, and one of the firm's lawyers will be at the counsel table when Georgetown University Law Center professor Neal Katyal argues Hamdan's case before the Court.

"If it was directed at us, it was out of line," said Perkins Coie partner Harry Schneider Jr., who has taken the lead in the firm's representation of Hamdan. Schneider said the firm has never heard negative feedback from any client about its representation of Hamdan.

Obviously there may be more to what Davis said last year, and it would be important to judge his remarks in context. (Stimson's comments, it should be noted, acutally looked worse when placed in their full in context.) Nonetheless, it seems that Col. Davis may have pulled a Cully Stimson before Cully Stimson did. If so, these earlier remarks — rather than his recent comments — are what is worthy of rebuke.

Anderson (mail):
Allowing, for the sake of argument, Adler's distinguishing of Kleiman's analogy --

are we admitting, then, that representation by military counsel has limits that would not exist were the prisoner represented by private counsel?
3.6.2007 9:22am
James Grimmelmann (mail) (www):
Picking up on Anderson's point, I'm not sure that Colonel Davis has thought through the practical implications of his statements. If Major Mori is precluded from making many public statements on behalf of his client that would be open to private counsel, that provides a specific way in which appointed military counsel will be less effective than a lawyer chosen by the defendant could be. (This is not hypothetical; the original IHT article described how a number of Australian officials had had their minds changed by Mori's lobbying on his client's behalf.) The result is that it becomes that much harder to demonstrate that the military tribunals comport with Due Process, since this disparity is another factor distinguishing them from traditional criminal trials.

Also, Article 88 should not be confused with <a rel="nofollow" href="http://imdb.com/title/tt0101371/">Article 99</a>.
3.6.2007 9:47am
James Grimmelmann (mail) (www):
Well, that link looked fine on preview. . . .
3.6.2007 9:50am
John (mail):
I think we are forgetting what is going on here. These prisoners were, as I understand it, captured on the battlefield instead of being killed on the battlefield. Then they were shipped to a holding area (Gitmo). It is the same as the P.O.W. camps we set up in WW II to hold captured Germans who did not die on the battlefield.

Here's my question: would we be making these arguments as to those Germans? If not, why are we making them now?

My own belief is that a huge number of people simply don't believe we are, in fact, at war. They believe we are either on some frolic or some police-type of activity, so that the realities of war just don't apply.
3.6.2007 9:51am
bobolinq (mail):
Do you mean Cully Stimson's remarks were "contemptible" (deserving of our contempt) because they struck at key principles of our justice system, or that they were "contemptuous" (demonstrating contempt) in that (not really "because") they did so?
3.6.2007 9:52am
33yearprof (mail):
Adler says "The limitations on what Major Mori can say are a consequence of his being a military officer, not his participation in this case."

I was a military JAG early in my career (and solely a defense counsel for two years). This statement was wrong then and I'm sure it is today.

When acting in your role as "defense counsel," THAT is your military job and you can do anything that civilian defense counsel can do. That includes calling a press conference, etc.

Given that initial appeals go to Commanders not Judges, you may choose a course less confrontational. Or, your best professional judgment of tactics may be that the glare of publicity is just what your case requires. If your client has both military and civilian counsel, you may choose the let the civilian play bad cop but nothing but tactical judgment prevents you from doing so.

This ignores, of course, the myriad of ways the JAG and Command structure can screw you over behind the scenes. But, in theory, that is illegitimate.
3.6.2007 10:06am
Gregory Conen (mail):
John, hold your horses!
1) The Constitution specifically gives the requirements for a declaration of war, which have not been meet, like they were in WWII. So we are not, strictly speaking, at war.
2) The government has specifically denied the various prisoners POW status, because that would give (significant) rights to them. So it's not exactly like the POW camps.

Those two differences, along with a number of derivative differences, most notably the apparently indefinite nature of this current conflict, give rise to a whole host of potential human rights problems. So, I think that it's you who's forgetting whats going on here.
3.6.2007 10:07am
J. F. Thomas (mail):
These prisoners were, as I understand it, captured on the battlefield instead of being killed on the battlefield.

As has been pointed out over and over again many of the detainees were captured under very murky circumstances. Many were turned over to the Americans by Northern Alliance fighters for cash bounties with nothing more than the word of the person receiving the bounty that they were Al Qaeda or Taliban fighters. Five years later these are the issues that still have not been resolved.
3.6.2007 10:13am
Jonathan H. Adler (mail) (www):
Anderson --

Yes. Military commissions, like court martials, are less defendant friendly than civilian courts, but that does not mean that their use inherently violates due process (but it is a reason why, for instance, it is problematic to subject civilians to such proceedings when the courts are in session). I also don't think it is a due process violation (or a violation of the right to effective counsel) to limit attorneys' out of court statements as Article 88 might in this context. Such limits may well violate other constitutional norms (such as the First Amendment), but not due process. It is simply implausible that there is a due process right to such out-of-court conduct, particularly something as far removed as a right to have one's attorney make political appeals overseas.

Bobolinq -- Thanks for the correction. I'll amend the post.

JHA
3.6.2007 10:14am
PersonFromPorlock:

My own belief is that a huge number of people simply don't believe we are, in fact, at war.

They may be right: of course, that has nothing to do with whether the Islamists are at war with us. But what can you expect from a declaration of 'war' that reads like a software licensing agreement and the profoundly unserious leadership we have (on all sides) in Washington?
3.6.2007 10:22am
Anderson (mail):
It is simply implausible that there is a due process right to such out-of-court conduct, particularly something as far removed as a right to have one's attorney make political appeals overseas.

Well, that's the great thing about words like "implausible" -- who can argue?
3.6.2007 10:25am
Anon. Lib.:
John,
The laws of war and basic morality do not allow for the summary execution of enemies captured on the battlefield. The US has never had a policy of summarily executing such prisoners and, hopefully, it never will. And the laws of war are very clear that POWs must be treated humanely and not subjected to any form of physical or mental coercion. Thus if we are really "at war" the administration's treatment of Gitmo detainees, not to mention Bagram detainees, is not generous, it is incredibly outrageous and unAmerican.

Additionally, you should know that the administration maintains that the Gitmo prisoners committed war crimes and proposes to try them for those crimes. David Hicks, as I understand it, will be the first detainee to be tried under the tribunal system established by the administration. It is absolutely clear under international law that when a country proposes to try a POW for war crimes it must accord that prisoner at least the same due process that it would accord its own soldiers. In this case, the US is bound to accord Gitmo detainees the procedural protections under the UCMJ and the Constitution that would be accorded to US servicemen. I'm pretty sure that this principle was well established by WWII.

Lastly, the process due David Hicks in his upcoming trial is a different issue from whether he counts as a POW. But to be clear---if there is any doubt as to the status of a detainee (if, for example, a detainee claims that he had nothing to do with the Taliban or Al Qaeda and was abducted by American friendly partisans away from the battlefield and delivered to the US simply for a cash bounty), the detainees are entitled to due process in the determination of their status.
3.6.2007 10:26am
A.S.:
(This is not hypothetical; the original IHT article described how a number of Australian officials had had their minds changed by Mori's lobbying on his client's behalf.)

Which is completely irrelevant to the defense. Australian officials should have no place in the proceedings. Mori is attempting to gain freedom for his client extra-legally, and while we should have respect for the legal proceedings, Mori extra-legal rantings should be afforded no respect whatsoever.

It is as if Scooter Libby's attorneys were spending their time lobbying Bush for a pardon, rather than preparing for court.
3.6.2007 10:28am
Anderson (mail):
But what can you expect from a declaration of 'war' that reads like a software licensing agreement

That, P from P, is the best thing I'll read all week.
3.6.2007 10:29am
Spitzer:
Jonathan,

Let me try to steer this thread back to your point - a difficult proposition, since any mention of the war is an invitation to engage in a tangential debate. But count this comment as a meagre attempt to right the ship.

What, precisely, is it about Stimson's (and now Davis's) comments that you find objectionable? Is it the expression of the concept itself, is it the commenters' position as government employees, or is it the political or legal position of the commenter? Would it be equally dangerous for our legal system if a client expressed this concept to his or her attorney? What if a journalist or other public commenter raised such concerns? How about a public intellectual? How about congressmen, or those running for office - would they be contemptible if they raised such concerns, perhaps while debating the contours of a bill that would govern the detainees' legal representation? Could a private lawyer make such comments, even if in a non-legal capacity?

It is one thing to suggest that the comments, coming as they did from government employees, may represent some implicit threat? Is it another matter entirely to suggest that lawyers and law firms cannot ethically, morally, or even legally be criticized for electing to represent certain clients.

Taking the latter point first, American lawyers are not ethically bound to accept any and all clients, and in fact not a day goes by when some lawyer somewhere refuses to represent certain clients - there are a variety of reasons why a lawyer may refuse to represent a particular client, and one of those reason may be that the lawyer doesn't want to represent a particular client because the lawyer's strongly-felt personal politics do not allow him or her to represent this particular client (say, the mob, or the KKK), or the lawyer is afraid that his or her existing clients will bolt for another lawyer, or, relatedly, the lawyer may fear of negative PR for representing certain reprehensible clients. Lawyers are thus not immune from criticism for the clients they do undertake, and it is no attack on our legal system to recognize this fact. If anything, the First Amendment protects all of us, including lawyers, to voice our displeasure or criticism, and, except for certain narrow circumstances - such as lawyers who are themselves involved in the litigation in question - lawyers cannot constitutionally be punished for suggesting that certain individuals or entities (all of whom, after all, are potential or actual clients) are contemptible.

As for the former point, perhaps you should detail how the implicit threat contained in the comments should be taken seriously. After all, a threat that is not serious is not a threat at all. Is the threat to be attributed to the general government? That would make it potentially serious. But what is the threat, precisely? There is no statutory authority that would allow a prosecutor to arrest pro bono lawyers doing their professional duties, so there is no serious threat of prosecution. The general government is not a client of the law firms (except on the very odd occasion), so there is no serious threat of immediate retaliation. The Gitmo system is regulated by statute, so there is no serious threat of disallowing the lawyers to reach the clients outside what the law allows and requires. There is no legal action that could be taken against the clients of these firms just for the sake of their representation by the offending law firms, so that is not a serious threat. Perhaps you think that the government was threatening to pursue its regulation and investigation of those clients more zealously if they continued to work with the offending law firms? That would be a serious threat, but such a scheme seems pretty far fetched, and there would be far more evidence of such a scheme if it were real, so that threat is not serious unless and until some contradictory evidence is provided. Or perhaps you believe that the threat is to publicize the law firms' pro bono representation so as to embarrass clients into withdrawing their representation? I am guessing that this is the threat to which you refer, but haven't you and the rest of the blogosphere done far more to publicize the "embarrassing" facts, and therefore to execute the threat, than ever did the government? Should the blogs be silenced so that the law firms' clients can be saved from potential embarrassment in the media (and, perhaps more seriously, among their prominent shareholders)?

Jonathan, I am honestly curious about this issue. I may agree that the Stimson/Davis comments were politically stupid, but I am not at all convinced that they represent legal or ethical violations (leaving aside, for the sake of argument, the possibility that the officials violated specific regulations governing their public speech as government or military lawyers). Indeed, I am more troubled by the implication that we lawyers get a free pass on our clients when in fact we have plenty of discretion in selecting them. It would be a different matter to criticize doctors (who have much less discretion regardiing their clients, particularly in emergencies) or English barristers (who are ethically bound to represent everyone who can pay). Everyone has a right to representation, but a lawyer who could not withstand criticism for electing to represent a particular client does not possess the professional zeal to represent the client in the first place.
3.6.2007 11:10am
Mark Field (mail):

These prisoners were, as I understand it, captured on the battlefield instead of being killed on the battlefield.


As others have noted, this understanding is incorrect. I've posted the link several times before, but here (pdf) is the Seton Hall study of the Guantanamo detainees. As you will see, the majority of the detainees are NOT battlefield captures.

The additional considerations raised by Anon. Lib. and others also apply.
3.6.2007 11:16am
elChato (mail):
It's amusing that Cully Stimson is denounced, and draws bar complaints, for suggesting people not hire lawyers who take clients and espouse legal positions he dislikes; yet there's nothing wrong with trying to scuttle the career of Robert Delahunty (http://volokh.com/posts/chain_1164810164.shtml) or John Yoo (http://volokh.com/archives/archive_2004_05_21.shtml) via public denunciation and urging people not to hire them.
3.6.2007 11:17am
J. F. Thomas (mail):
It's amusing that Cully Stimson is denounced, and draws bar complaints, for suggesting people not hire lawyers who take clients and espouse legal positions he dislikes; yet there's nothing wrong with trying to scuttle the career of Robert Delahunty (http://volokh.com/posts/chain_1164810164.shtml) or John Yoo (http://volokh.com/archives/archive_2004_05_21.shtml) via public denunciation and urging people not to hire them.

Obviously, you don't understand the distinction between a public official speaking as a representative of the U.S. government and private citizens appalled by the reprehensible actions of attorneys working for the U.S. government.
3.6.2007 11:25am
James Grimmelmann (mail) (www):
A.S. It is as if Scooter Libby's attorneys were spending their time lobbying Bush for a pardon, rather than preparing for court.

Libby's lawyers have spent quite a great deal of time talking to the press on his behalf, in addition to representing him in court. In the prsent case, Australian concern on Hicks's behalf may well have worked or work to his benefit even within the proceedings brought by the U.S. government.
3.6.2007 11:41am
Anon. Lib.:
Its also worth noting that Mori's public statements were made in the context of a tribunal system that was still being negotiated and established. Mori had an opportunity to bring Australian diplomatic pressure, and perhaps American public opinion to bear in two respects: (1) in connection with the Bush administration's prosecution of Hicks, and (2) with respect to the rules and procedures of the tribunals themselves. It strikes me that it would approach a violation of the duty of loyalty for an attorney to voluntarily abstain from trying to influence the rules of the game when those rules were in play.
3.6.2007 11:52am
Sigivald (mail):
Gregory: In my reading, the Constitution does not specify the mechanism of a declaration of war; it says only that Congress and only Congress can do it.

And Congress thinks it has; Senator Biden, who is a Professor of Constitutional Law, says he voted for a declaration of war, in Constitutional terms, when he voted for the AUMF, which passed quite handily.

Care to tell us how the Constitution says Senator and Professor Biden is wrong about what he did, as a member of Congress and a legal scholar?

I certainly don't see anything in the document, I repeat, specifying any terminology or ceremonial form that is lacking.
3.6.2007 12:44pm
ed o:
of course they wouldn't make such arguments on behalf of the Nazis in WWII. why it is somehow noble now to side with savages at war with us is one for the psychiatric profession. I have a hard time putting the needs of some JAG defense attorney and the current never before done due process claims over actually winning a war. if you had argued in WWII that due process court claims take precedent over winning, you would have been committed.
3.6.2007 12:44pm
FC:
I've followed this little controversy from the beginning, and it seems to come down to this:

Anti-detainee commenters want to win the war.
Pro-detainee commenters want to uphold their concepts of universal human rights.
Prof. Adler has faith in the American legal system as a system. I don't intend to give offense, but he seems naive in a typically Ivory Tower way.
3.6.2007 12:50pm
A.S.:
It strikes me that it would approach a violation of the duty of loyalty for an attorney to voluntarily abstain from trying to influence the rules of the game when those rules were in play.

Same with Colonel Davis and Cully Stimson.
3.6.2007 12:57pm
davod (mail):
Ed O:

As I recall, there were serious efforts in the USA just after WWII to limit the death penalty use in military tribunals. The effort went so well that a number of the NAZI ratbags sentenced to death were still in jail in the late 40s when the Germans decided to not have a death penalty.
3.6.2007 1:03pm
Anon. Lib.:
Col. Davis and Cully Stimson were not lobbying for particular rules or procedures in their comments. They were seeking to intimidate the attorneys representing detainees from engaging in a full defense. There is really no comparison.
3.6.2007 1:05pm
ed o:
why are these lawyers the "true patriots". are they, in their assistance to the enemy, somehow on a higher moral plane than those fighting the war? would an american lawyer who flew over to Germany in 1942 to act as a mouthpiece for the Nazi regime be a "true patriot"? The left is acting as a flak for the most backward and repressive ideology on the face of the earth yet somehow manages to look in the mirror and see a halo around their collective heads. when did assisting the enemy become noble or patriotic?
3.6.2007 1:11pm
Kevin P. (mail):

Mark Kleiman is outraged by Colonel Davis' comments...

Isn't Mark Kleiman the Professor of Perpetual Outrage? What is new here?
3.6.2007 1:16pm
Christopher Cooke (mail):
Jonathan

I think Colonel Davis' current remarks are inappropriate. He is essentially implying that Major Mori may have violated Article 88 without any apparent factual basis for making such an implied charge. I say this after reviewing Article 88 and several of Major Mori's comments (but concede I could have missed something). I believe the statements may be defamatory.
3.6.2007 1:17pm
A.S.:
Col. Davis and Cully Stimson were not lobbying for particular rules or procedures in their comments. They were seeking to intimidate the attorneys representing detainees from engaging in a full defense. There is really no comparison.

What?

It is exactly the same thing. Mori thinks he should be running around Australia fomenting political outrage in an effort to cause Australia to pressure the US to release Hicks. Davis thinks he shouldn't be. There is absolutely zero difference between the two.
3.6.2007 1:19pm
markm (mail):

Mori thinks he should be running around Australia fomenting political outrage in an effort to cause Australia to pressure the US to release Hicks.

If Mori thinks that's going to be effective, he should be in therapy. I think his actions aren't intended to help his client, but rather to help himself. He reminds me of the lawyers in the 1960's, who became famous while losing case after case, by defending radicals and domestic terrorists who wanted to turn the courtroom into a political circus. At least one of them managed to establish such a reputation that he could then count on a steady flow of million dollar fees from rich men in serious trouble...
3.6.2007 2:10pm
Kevin P. (mail):
Can we please refer to Mori by his proper title: Major Mori
3.6.2007 2:16pm
ed o:
can Major Mori refer to his client by the islamic name that he adopted when he decided to join up with the jihadist cause? David Hicks went bye bye a long time ago.
3.6.2007 2:24pm
Anonymo the Anonymous:
if you had argued in WWII that due process court claims take precedent over winning, you would have been committed.

No, you would have had your grammar and word usage corrected.
3.6.2007 3:42pm
J. F. Thomas (mail):
And Congress thinks it has; Senator Biden, who is a Professor of Constitutional Law, says he voted for a declaration of war, in Constitutional terms, when he voted for the AUMF, which passed quite handily.

Well, first off the AUMF Biden is referring is the one authorizing the use of force against Iraq, not the Taliban and Al Qaeda--so the point is moot anyway. Secondly, Biden is simply wrong and so are you. Even though Administration officials (heck everyone) likes to throw the word "war" around, AG Gonzales and others have made it clear, under oath in front of the Congress, that the AUMF was not a formal declaration of war and that we were or are not formally or legally at war with anyone. For Biden or anyone else to argue otherwise is absolutely ridiculous.

As for your assertion that you don't "see anything in the document, I repeat, specifying any terminology or ceremonial form that is lacking". You must make that statement out of a complete ignorance what a formal declaration of war involves. Countries have been declaring war on eachother for hundreds of years and there are diplomatic protocols to be followed. The first thing it involves is an unambiguous statement that a "state of war" exists. Secondly, there is a formal notification to some representative of the country you are declaring war on (e.g., when Germany declared war on us in WWII, the highest ranking official remaining at the German Embassy drove down to the State Department and requested a meeting with the Secretary of State to Deliver the Declaration of War).
3.6.2007 3:48pm
Anon. Lib.:
You're being silly. Mori was threatened with personal criminal liability on account of his vigorous advocacy. Stimson favored a boycott of law firms defending gitmo detainees. Defense attorneys were personally targeted for retribution on account of their represenation of detainees. Mori sought to enlist public opinion in Australia and the US to help his client. There is a world of difference.
3.6.2007 3:49pm
J. F. Thomas (mail):
would an american lawyer who flew over to Germany in 1942 to act as a mouthpiece for the Nazi regime be a "true patriot"?

No, but an American lawyer who defended a Nazi POW who was accused of a crime would be. Several Nazi POWs were tried under U.S. courts martial during WWII and executed, mostly for murdering fellow POWs (there is a small section at the National Cemetery at Fort Leavenworth where they--about 15 I think--are buried). Are you saying that their defense lawyers were not patriotic or that they did not deserve a fair trial?
3.6.2007 3:54pm
ed o:
I don't see any reason to be particularly impressed with them for representing Nazi POW's. Of course, the representation in your example did not entail siding with the enemy and arguing that the United States was the party at fault. If that same lawyer representing the Nazi at the time argued that the Nazi ideology was deserving of special protection and the United States was wrong for making war against the regime, that would come closer to what we have today. If the lawyer were flying into camps and working to get bad guys back out on the front lines to kill more americans and those unlucky enough to cross paths with the bad guys, we would have exactly what the noble lawyers and "true patriots" are working to do today.
3.6.2007 4:33pm
David M. Nieporent (www):
1) The Constitution specifically gives the requirements for a declaration of war,
No, it doesn't.
which have not been meet
,Yes, they have.

The only "requirement" is that Congress do it. That was done.


Obviously, you don't understand the distinction between a public official speaking as a representative of the U.S. government and private citizens appalled by the reprehensible actions of attorneys working for the U.S. government.
That's a valid distinction; another valid distinction is between criticizing someone for the fact of representation vs. criticizing someone for the tactics he uses in the course of that representation.
3.6.2007 5:16pm
subpatre (mail):
Adler posted: "... Colonel Moe Davis, said it was "ironic" that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guantanamo detainees pro bono."
Ironic -- 1. Characterized by or constituting irony. 2. Given to the use of irony. See synonyms at sarcastic. 3. Poignantly contrary to what was expected or intended: madness, an ironic fate for such a clear thinker.

If the implied context is even similar to what he said, Col. Davis is correct. Legal representation by these large law firms —defending those that the government claims are national enemies— is primarily made possible by these firms' copious consumption at the public trough.

That is truly ironic: It is sharply different to what would be expected; there is an incongruity between what might be expected and what actually occurs.
3.6.2007 7:34pm
midatlantan (mail):
ed o - Perhaps your venomous attitude toward Major Mory is rooted in your misunderstanding of what he's actually done (or been accused of doing). He's not "siding with the enemy" nor has he argued or alleged that the Taliban regime, or its ideology, or that of Al Qaeda, is "deserving of special protection." Nor has he "flown into camps" to get "bad guys back out on the front lines to kill more americans." He's representing one detainee in a proceeding intended to determine whether that detainee is, in fact, a "bad guy," and if so, how "bad" he is. If he were doing the horrible things you ascribe to him, I think we'd all agree that would be a bad thing to do. But he's not. You seem to be engaged in a different conversation.
3.6.2007 7:37pm
33yearprof (mail):
I think Major Mori is guilty. Of zealous representation of his CLIENT. That IS his military job at the moment.

His client is an Australian citizen. His trial by the US Military Comission is subject to diplomatic maneuvering. Mori is trying to affect that diplomacy. If successful, it could result in a positive outcome for his client (dismissal of the charges). Sounds like good lawyering to me.

The Colonel (the prosecutor) is probably mad over the Major's (defense counsel) success. Wouldn't be the first time.

This is from an Australian newspaper.

"In January the director of military prosecutions in the Australian Army, Brigadier General Lyn McDade, called Hicks's detention "abominable."

"I don't care what he's done or alleged to have done," McDade, a former prosecutor, told The Sydney Morning Herald. "I think he's entitled to a trial, and a fair one."
3.6.2007 9:00pm
Bozoer Rebbe (mail) (www):
It's interesting to compare the two professions, law and medicine and see what is considered ethical. As pointed out above, a lawyer can refuse to take a case because the client can't afford to pay him, or because she doesn't agree with the politics of the client. A doctor, hospital or clinic that refused treatment on the same criteria would probably find itself in a malpractice case, with the potential patient represented by a lawyer who probably wouldn't have taken the case without a retainer fee or a generous contingency fee. Lawyers can split fees or get referral fees. If doctors do that they can lose their medical licenses.

So lawyers can choose their clients. I think that every firm representing detainees at Gitmo should be on the public record. If it is important enough to the justice system that the detainees be represented, it is important enough to a free society that those who represent them are identified so that other legal consumers can choose to patronize them or not.

If they think it is so vital, they should be proud of their activities and their clients and potential clients should have that information.

Geoffrey Feiger may be a capable PI attorney, but he's a complete jerk and represents some outrageous clients and I'd never have him represent me. An attorney's clients, particularly criminal clients should be a matter of public record, as I believe it is in the US justice system. Since the Gitmo lawyers are so eager to have their clients transitioned into a criminal justice system, let their representation go on the public record as well. Let them be proud of their behavior and let the rest of us decide if we want to hire attorneys who represent people who want to kill us and our kids.
3.7.2007 1:07am
Public_Defender (mail):
Any lawyer who called a court he was appearing in front of a "kangaroo court" would be subject to contempt and/or discipline. This is not just a military matter, it's a professionalism matter.

I've heard only good things from fellow criminal defense lawyers about the military officers representing detainees. Major Mori has done a lot of good work, but he needs to take a break. Hopefully, some friend of the his will take him asside, and recommend that he take a week or two off.

If the commission structure needs to be changed (and he's probably right that it does), he needs to argue more respectfully. If rhetorical bombs need to be thrown, he needs to leave that to others.

Like all lawyers, I've had similar things to say about courts I've appeared in front of. But I vent my harsh language to a few select friends. Lawyers have to know how to criticize a tribunal thoughtfully and effectively. A lawyer calling a tribunal a "kangaroo court" is neither thoughtful nor effective.

Major, you've earned a break. Take it. Then come back and focus on your clients.
3.7.2007 5:57pm
LL:
"The US has never had a policy of summarily executing such prisoners and, hopefully, it never will."

I wouldnt call a policy but that happened many times in Second World War.
And even with legal protection in Battle of Bulge those Germans captured with US Uniform were put on trial, convicted has spies by 3rd Corps and shot in a week after being captured. There is photos in the web...
You should also read about the American citizen guilty of sabotage in US territory with other Germans tried by a military court and hanged.
I dont know about WW1, Civil War or other Wars that USA was in.

"Are you saying that their defense lawyers were not patriotic or that they did not deserve a fair trial?"

That's a diferent situation isnt it?
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Rightly US Gov. doesnt considers Guantanamo detainees POWs with Geneva Protection (no uniform, etc), but if they would for instance, they would be locked until the end of the War which will happen probably in 2025 or more... Since Guantanamo and others freed hundreds of prisioners (some ended fighting again) where came this death wish ? I call death wish because dont see anyone upset about those freed Jihadis that ended fighting again. For me it is just a world upside down, using Justice for narcisistic proposes.
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Every other President that was at War was many times worse starting with Roosevelt.
3.8.2007 1:17am
Public_Defender (mail):
The treatment of Major Mori demonstrates the weakness of the Bush Administration's tribunals. As I explained two posts up, any civilian lawyer who spoke about a civilian court the same way would be subject to discipline. But the Bush Administration's tribunals are so politically weak that they can't withstand the criticism they'd get by disciplining Mori.

Also, although a colleague of Major Mori might be able to persuade him to tone it down (and I hope that happens), Col. Davis lacks the moral authority to do so. By attacking the idea that anyone would defend the detainees, Col. Davis showed that he does not have judgment worthy of respect.

Yes, I admit this is an ad hominem argument, but my point is that Col. Davis's statements likely won't persuade Major Mori to change his strategy. And this reinforces my first point about the political weakness of these tribunals.
3.8.2007 6:47am
ed o:
I invite everyone to read the Burlingame column in the Wall Street Journal for the nobility of the pro bono counsel for Gitmo-it seems jihadist money trumps loyalty to country for the law firms.
3.8.2007 9:50am
Public_Defender (mail):
When the some of the firms were doing the work pro bono, they were accused of using corporate money to subsidize the work for the detainees. When one firm receives payment for the work (and properly reports the income), it is accused of allowing "jihadist money trumps loyalty to country." Heads I win, tails you lose.

But my guess is that the Republican-supporting American oil companies have given a lot more support to terrorist-funding Arabs than any Washington law firm. Halliburton would never work for the Saudis or Kuwaitis, would it?

What's interesting about the article is that Burlingame concedes that some detainees could have been wrongly picked up "in the fog of war," but then goes on to assume that they are all terrorists. The Bush Administration would never make a mistake in the way it wages a war, would it?
3.8.2007 3:33pm
ed o:
let's see-instead of the pure pro bono motives that were presumed here, we have the simple crass motive of getting their hands on some good green jihadist retainers. we have law firms acting as flaks and mouthpieces for foreign governments, not acting out of the goodness of their hearts. do you think S&S is the only firm that wouldn't give a damn if more americans die as long as the profit per partner figure goes up? Am I still not supposed to question the motivations of those defending the jihadists anymore? Are they still the "true patriots"? why change the subject to oil companies-why not answer the questions raised in the column instead?
3.8.2007 5:37pm
Public_Defender (mail):
do you think S&S is the only firm that wouldn't give a damn if more americans die as long as the profit per partner figure goes up?

I don't know. Lots of law firms represented Big Tobacco, so it's clear that they are willing to let "more americans die as long as the per partner profit goes up." Didn't law firms advise Phillip Morris how to keep obscure and lie about the dangers of smoking for decades? Who's killed more Americans, Phillip Morris or Al Qaida?

Back to the subject, it appears that most of the law firms did the detainee work pro bono. One got paid, and according to the op/ed piece, even that firm gave the money it earned to 9/11 charities. So your per partner profit arguement doesn't hold water here.

Even if they did make money, so what? The reason you know is that they reported the income as they were legally required to. Also, law firms and lawyers represent people and companies who kill, and they make money doing it. That's not exactly news.

Finally, I earn my salary representing people convicted of murder, rape, and child molestation, so I guess I'm not in a position to criticize the lawyers representing the detainees.
3.8.2007 5:55pm
ed o:
the analogy would be you could have represented the Nazis in WWII as long as you properly reported the income. we have come so far since then. apparently, being an "ethical" lawyer and a honorable citizen of this country don't mean quite the same thing anymore. no wonder lynne stewart was able to wander around various law schools and earn plaudits for her disgusting behavior and crimes.
3.9.2007 11:31am
Public_Defender (mail):
I hope that there were lawyers during WWII who were willing to make sure that captured Germans in the US were treated according to US law. The same goes for WWI, the Civil War, and the Revolutionary War. One of our first presidents (John Adams, I believe) did represent someone who supported the British.

A lawyer isn't a ticket to freedom. A lawyer just gives the detainees a chance to ask a judge to stop illegal behavior. If the government behavior isn't illegal, or of the courts have no authority to act, then a lawyers will be powerless.

Finally, I just don't believe the Bush Administration when they say that all Gitmo detainees are terrorists. Remember all those WMD's that that the President said were in Iraq? Yeah, this is a guy we should trust.

So Ed o, given the Bush Administration's history of lying and/or delusion, you'll need to provide actual evidence that each detainee is a terrorist before I will even think about supporting your argument that lawyers shouldn't advocate for them.
3.10.2007 12:12pm