Tuesday, February 06, 2007

Okay, One Last Time on Stimson   [Andy McCarthy]

As anyone reading these exchanges will understand, I have not missed Jon's insistence that the issue is not the scummy behavior of lawyers but a government official's commenting on the scummy behavior of lawyers.  I get it.  It's just wrong. 

Jon's contention is premised on the fallacy that enemy combatants and criminal defendants are the same.  In fact, they are vastly different.  Therefore, when it comes to combatants, the state court ethical rules pertaining to what government lawyers may say and do with respect to criminal defendants are inapposite.  (I will not repeat what I've already said at length about the dubious constitutionality of applying these rules, even in the criminal justice context, to executive branch lawyers.) 

Mark notes that Jon is conflating right to counsel with criticism of counsel; I would add that Jon is also conflating right to counsel with right of access to a process.  The combatants at Gitmo are aliens without U.S. constitutional rights.  They are wartime military prisoners, not criminal defendants.  They have been accorded a right to a combatant status review tribunal (CSRT) to challenge their detention and a right to trial by military commission, if charged, to contest their guilt of war crimes.  But those are not judicial proceedings; they are military proceedings.  At both the CSRT and commission stage, combatants are given assistance by the military (for commissions, it is military counsel).  But at neither do they have a right to to civilian counsel.

What makes it inappropriate for government attorneys to disparage a lawyer's service as defense counsel at a civilian trial is that the defendant has a right not only to a process (the trial) but to counsel.  Thus, the defense lawyer is not merely a volunteer even if he would gladly volunteer his services.  Rather, he fulfills a vital role, vindicating a fundamental constitutional right vested in accused Americans and without which the proceeding would not satisfy our due process standards.

By contrast, as Mark underscores, the Gitmo lawyers are volunteers.  Not just volunteers, but gratuitous volunteers. 

The fact that the military gives alien combatants a process does not give them a right to civilian counsel.  Jon's point would be well taken if people like Stimson were saying:  "I don't know how those military lawyers and officers can sleep at night, assisting the enemy in these military tribunals."  But no one is saying such a thing because those military officials — the ones assigned to assist the combatants at the CSRTs and at military commissions — are simply doing their duty.  They are, like defense counsel at a civilian trial, carrying out a function without which the process would lack integrity. 

Not so the civilian lawyers.  Not even close.  As Mark says, they are volunteers.  No one is claiming they are necessary to the process.  The military system allows them to participate, but they have no right to participate and the aliens have no right to have their assistance.  The integrity of the process has nothing to do with them — it would easily pass muster without them. 

Given that they are gratuitous actors in the process, it is more than fair for the public to inquire:  Are they a net positive or negative to the public interest?  Pro bono publico, after all, refers to the public good, not the good of the client fortunate enough to get free legal help. 

On that score, on the plus side, the Gitmo lawyers are performing a role already covered by military personnel; on the minus side, their participation cuts off the flow of intelligence to war fighters; makes the Defense Department expend significant additional resources, during war, to establish that the enemy is the enemy; and rewards barbarians for violating the rules of civilized warfare (since honorable combatants have no right to counsel).  That is a net loss, a significant net loss, attributable to the voluntary acts of lawyers, committed in wartime in connection with a war in which the enemy seeks to destroy our way of life.  Many of us find that gratuitous act pretty despicable.  That a government official's comments should evince that sentiment is perfectly understandable — not cause for censure.

The fact that the Supreme Court has given the alien combatants a right (which congress has codified) to challenge their military tribunals in federal court is, similarly, just a right to a process of review.  It is not a right to counsel, and does not include a right to counsel.  It also does not change the character of the underlying proceedings the civilian court reviews — those proceedings are still military not judicial, and carry no right to counsel

Just as the attorneys volunteering for Gitmo are not necessary to the integrity of the military proceedings, neither are they necessary to the challenge combatants are now permitted to lodge againt the military proceedings in federal civilian court (specifically, the D.C. Circuit Court of Appeals).  In that civilian court challenge, there is no right to counsel.  Again, these lawyers are not like the attorneys at civilian trials, whose effective performance is the sine qua non of a right guaranteed to Americans.  Jon, however, would have you think they were one and the same.

But let's deal solely with what Jon relies on.  Let's assume, for argument's sake, that the federal court review (despite conferring no right to counsel) is materially different from the military proceedings because it's in front of an Article III judge instead of a military tribunal. Let's also assume that that would somehow be a good reason to prohibit executive branch officials like Stimson from making true statements about the Gitmo lawyers (even though there is no such rule).  Even if you suspended reality and accepted those things, the fact is that we are not at that civilian court stage right now.  The civilian court review is the end of the process.  We're still at the start of the process, in Gitmo.  And it was Gitmo, not the federal court review, that Stimson was talking about. 

Stimson was talking about attorneys who've flocked to Gitmo — attorneys who, to fulfill no requirement and overlooking countless more worthy indigents, choose to contribute their skills to an enemy seeking to kill our troops and destroy our country.  We don't stop those attorneys from doing it, but it is common sense that the branch of government charged with defeating this enemy should object to those volunteering to help the enemy use of our courts as a weapon of war against us.

02/06 07:39 PMShare