Chilling Representation

Last week, the deputy assistant secretary of state for detainee affairs condemned specific law firms for their pro bono representation of detainees at Guantánamo. Speaking in an interview with Federal News Radio, Charles Stimson suggested that such firms’ corporate clients should pressure the firms to “choose between representing terrorists or representing reputable firms.” Though a Pentagon spokesman stated on Saturday that Stimson's comments “do not represent the views of the Department of Defense or the thinking of its leadership,” and Stimson yesterday issued an apology, his statement nonetheless has a chilling effect on pro bono representation and freedom of association.

In today’s complex legal world, access to justice depends heavily upon legal assistance. And yet for certain individuals, legal assistance is difficult to secure. For detainees in Guantánamo, counsel is not provided (as it would be to criminal defendants), and the obstacles to obtaining counsel are myriad: language, distance, political unpopularity, and, perhaps most significantly, the military rules governing contact with detainees. Detainees cannot themselves retain counsel. Despite these obstacles, law firms have extended their services to these individuals on a pro bono basis. By denigrating the value of these services, Stimson does real damage to the norm of pro bono work. The Association of the Bar of the City of New York recognizes the importance of such work, citing “the fundamental ethical and professional obligation of all lawyers to render pro bono legal service…” I would expect that Stimson, as the recipient of a law degree from George Mason University Law School, would recognize it too.

Beyond the effects of his interview on law firms’ pro bono representation, Stimson’s remarks sounded a disturbing echo of McCarthyism, selecting and disclosing the names of law firms whose activities are politically inconvenient in an effort to blackball them into changing their behavior. Given that juror selection began this week in the trial of Scooter Libby, I would think that the administration might be more careful about disclosures intended to chill politically unpopular activities. Stimson’s interview, and the subsequent lack of retraction, indicates a senior administration official’s strategy of achieving political ends by chilling constitutionally protected behavior - a strategy that I (idealistically, perhaps) had hoped ended long ago.