The Deputy Assistant Secretary of Defense Suggests A Boycott of Law Firms that Represent Guantanamo Detainees:
Why This Kind of Blacklisting Is Always Wrong, and McCarthyite

By ANTHONY SEBOK AND SPENCER WEBER WALLER

Tuesday, Jan. 16, 2007

Last Thursday, January 11, Charles "Cully" Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, suggested in a radio interview that U.S. companies should boycott law firms that represent detainees held at the U.S. military prison at Guantanamo Bay, Cuba.

The comments evoked instant criticism from almost every part of the American legal community, and were disavowed on Saturday, January 13, by the Pentagon.

In this column, we want to look at three interrelated issues. First, we want to look more carefully at how Stimson's comments came about, and suggest that they were actually the first steps in an effort to create a "blacklist" of elite law firms doing work in Guantanamo Bay. Rather than making a rogue comment, as the Pentagon's disavowal suggests, it seems Stimson revealed an ongoing endeavor in which others have joined with him.

Second, we want to argue that this kind of blacklisting is always wrong, and not just when the government writes the list.

Third, and finally, we want to offer an illustration from the McCarthy era of another elite firm that offered legal representation when the government was creating real blacklists. Our history, we argue, shows us that the firms attacked by Stimson should be celebrated--and the White House should be ashamed of itself.

Stimson's Radio Interview: Not an Isolated Comment, But Part of a Concerted Effort

Here's the evidence that Stimson's January 11 comments in the radio interview appear to be part of a coordinated strategy to initiate an attack on "big firm" lawyers who were volunteering their time to detainees at Guantanamo Bay:

Just three minutes into an interview with the Federal News Radio, the conversation stalled out -- after a desultory discussion of the wildlife now occupying the empty portions of Camp X-Ray. After a pause, and not in response to any question, Stimson volunteered the following: "I think the news story that you are really going to see is this: As a result of a FOIA request through a major news organization, somebody asked, 'Who are the lawyers representing detainees down there?' And the results are shocking."

On January 12, the Wall Street Journal ran an Op Ed by Robert L. Pollock, a member of its editorial board, entitled, "The Gitmo High Life." Pollock noted that "a list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms," and reported that "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."

We suspect that the "major news organization" to which Stimson referred in his interview was the Wall Street Journal, and we suspect that the "senior U.S. official" to whom the Wall Street Journal's Robert Pollock spoke was Stimson.

Moreover, we suspect that all of this was part of an attempt by the White House to tell companies that they might want to consider taking their business to other firms that do not represent suspected terrorists.

Not only does this entire sequence of events have a transparently stage-managed aspect to it, the whole FOIA business was largely unnecessary, since the identity of the firms doing these cases is not a secret. The firms are justifiably proud of their work, and are trumpeting their involvement, rather than hiding it from their current and future clients.

Why This Kind of Blacklisting Is Always Wrong, No Matter Who Participates in It

Stimson probably thinks that if the nation's leading firms do not understand that what they are doing is wrong, then America's corporate managers should let them know. In other words, he believes the Fortune 500 should boycott the AmLaw 100 until it stops doing what he feels is simply giving aid and comfort to terrorists.

At first glance, this argument has some superficial appeal: Why shouldn't corporate America--or anyone, for that matter--decide where to spend their dollars based on their political convictions? After all, individuals who are Democrats and Republicans may surely opt, if they so choose, to engage Democrat-led or Republican-led law firms.

One reason is that it is more than a little risky for corporate managers - as opposed to individuals -- to start picking their legal representation on the basis of politics. Managers' obligations are to their shareholders, and their obligation is to pick the best legal representation they can afford.

A much more significant reason is that this isn't just a matter of political affiliation; it's a matter of an attempt to silence and penalize lawyers for doing their jobs. It is wrong, in our opinion, for anyone--including the U.S Government or the Wall Street Journal--to try to stop lawyers from representing persons accused of wrongdoing. This is especially true when they are accused of endangering national security--that is when they need representation more than ever.

A Comparison from the McCarthy Era

It is important to recall an episode from an earlier, but not too dissimilar period of our nation's history.

In the late 1940s, three veterans of the Roosevelt New Deal formed the law firm of Arnold, Fortas and Porter (today known as Arnold & Porter). Thurman Arnold had been the head of the Antitrust Division of the Justice Department and a former federal appellate judge; Abe Fortas was a key official in the Interior Department and eventually served on the United States Supreme Court, and Paul Porter had been chair of the Federal Communication Commission and an Ambassador. They had a small but growing firm representing business and individuals in connection with the burgeoning regulatory state, at precisely the time that the House Un-American Activities Committee, Senator McCarthy, and the Truman Administration's loyalty program for federal employees were ramping up their activities in reaction to the Cold War.

Arnold, Fortas & Porter got into the pro bono national security business almost by accident. A friend of an associate of the firm had been fired from his government job and sought help. The firm took the case pro bono, and soon hundreds more came -- until almost one quarter of the firm's case load consisted of loyalty and national security cases, including key test cases that reached the Supreme Court. The firm handled all these cases without charging a fee, with the exception of representing Oscar-winning actor Jose Ferrer in connection with his testimony before HUAC.

Arnold, Fortas & Porter was not alone in this effort during the McCarthy era, but it was one of the few establishment business-oriented law firms that routinely took these cases. Established firms rarely took such cases, leaving the bulk of the representation to small firms and solo practitioners, whose own politics left them vulnerable to pressure from the government, and in some cases made them subject to government investigation in their own right.

As a young firm seeking to grow its business base of clients, Arnold, Fortas & Porter could have suffered from its pro bono commitment to an unpopular cause, but it didn't. In the process, the firm's associates gained important experience and the firm gained a valuable reputation for being a tireless and fearless advocate for its clients, standing up to the same United States Government the firm litigated against for its paying clients, in a myriad of civil and criminal contexts.

At one point, Paul Porter ran into one of the in-house counsels of a client at the bar of his country club. The in-house counsel belligerently asked Porter: "Paul, I understand your firm is engaged in defending homosexuals and Communists," to which Porter replied without batting an eye "That's right. What can we do for you?"

The only compromise the firm made was a controversial decision that they would not represented admitted Communists, or those who intended to assert the Fifth Amendment in connection with their political activities.

But in the end, the firm was more than willing to accept the consequences of its commitment to doing what it thought was right, when the government brought the entire weight of the loyalty apparatus against government employees and others swept up in the anti-Communist hysteria.

The Lessons of the McCarthy Era

What lessons can we then draw from the McCarthy era? First, the broad swathe of firms that participate in these cases should be commended for stepping up in a more comprehensive manner than their predecessors of sixty years ago.

Second, their corporate and individual clients should be grateful that the firms have the courage to do so. They pay for the services of zealous advocates, not timid compromisers. Plenty of corporate causes are unpopular at any given time, and it is frequently the government that turns its massive resources against business clients. Even in terms of private civil litigation, business interests are hardly popular folk heroes in every case.

Undertaking either high profile or mundane pro bono cases in defense of individuals at risk, in this age of national security, both serves the end of justice and better positions the firms in question to carry out their more traditional and lucrative transactional and litigation practices. The firms, then, should be justifiably proud.

The nakedly transparent attempt of the government to drive a wedge between lawyer and client is shameful, and fortunately unsuccessful - at least for the time being. But if a client feels compelled to say to its law firm, "I understand you represent accused terrorists," we hope the firms will borrow a page from Paul Porter and merely answer "That's right. What can we do for you?"


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

Spencer Weber Waller is a Professor and Associate Dean at Loyola University Chicago School of Law and the author of Thurman Arnold: A Biography.

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