First, Accuse All the Lawyers of Treason

by publius

[Before I weigh in on Stimson’s attacks on law firms, I should disclose that my firm (though not me personally) represents some Guantanamo detainees.  So take that for what it’s worth.]

Other than its obnoxiousness, the thing that really stands out about Stimson’s critique is the basic conceptual error that we’ve seen again and again in the anti-terrorism debates — equating “terrorists” with “those accused of being terrorists.”  People make the same error when they equate efforts to ensure accused people actually are terrorists with efforts to “protect terrorists.”  I’m fully confident that most administration officials understand this distinction perfectly well, but consciously choose to ignore it.  Others — your less bright Hannity types — probably don’t.  Stimson strikes me as the latter.

In this sense, LawFirmGate is intertwined at the conceptual root with the broader debates over habeas corpus, torture, etc.  In all these debates, one side (including the administration) assumes that detainees are terrorists and operates on that assumption.  The other side, however, starts from a position of doubt and skepticism — i.e., they believe that accusations alone do not a terrorist make.

You see this basic conceptual divide play out in a number of different contexts.  Take habeas.  It really can’t be stressed enough, but the point of habeas is not to let terrorists go free, but to ensure that the people you have detained are in fact terrorists.  Habeas forces the executive branch to justify its detention — it is, in this sense, an information-generating tool.

Same deal with torture. Personally, I’m a tee-totaler on torture — our government shouldn’t torture, period.  I’m less concerned about the Hollywood ticking-time bomb scenario than with giving the executive — particularly this executive — the authority to torture when it deems it appropriate.  But anyway, the torture debate turns on the same conceptual fault line. Most of the people advocating or apologizing for torture assume that it’s being used on terrorists. The problem of course — as we tragically learn again and again as people are released — is that we (and our allies) have tortured many innocent people. That's why, morality aside, the anti-torture position is rooted in skepticism of our ability to know on the fly who is or isn’t a terrorist.

And finally, this same error is at the heart of Comrade Stimson’s anti-law firm tirade. He says:

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms[.]”

This is by now obvious, but Stimson — either from malice or stupidity — is treating efforts to ensure that people are properly detained as efforts to “protect terrorists.”  Of course, what’s really irritating Stimson is that the vigorous representation of the detainees is revealing how many of them are being wrongfully detained and how generally incompetent and immoral the administration’s detention policies have been.

To take a larger step back, what’s interesting is that Stimson’s criticisms could just as easily be directed against our criminal lovin’ Founding Fathers.  The Bill of Rights is, after all, rather obsessed with protecting the criminally accused.  But when you look at the individual amendments closely, you’ll see that they aren’t so much protections for criminals per se as they are procedural protections for the criminally accused.

I mean, think about the protections we see in the Bill of Rights — probable cause, right to a jury, right to counsel, right to confront, due process, indictment requirement.  These protections aren’t in place because people love criminals.  They’re in place to generate information and, by doing so, to ensure that the prosecution is proper.  In economic-speak, they raise the costs of prosecution, which helps ensure that people are less likely to prosecute on a whim.

And again, all of these protections are ultimately rooted in skepticism — of the state and of man more generally.  If we trusted that people would never abuse executive powers, there would be no need for these constitutional protections.  And so if there's any benefit to come from the debacle that is our detention policy, maybe it's that we'll better understand why protecting criminal rights is not the same as protecting criminals.

Comments

[CaseyL]

Excellent post, and I think all the more so for coming from someone employed at one of the law firms Stimson would like to see penalized for doing its job.

However, I want to go a step further, to address a point that one of our commenters made on the earlier Stimon thread. Our legal "niceties" aren't only about protecting the accused from predatory prosecutors; they do indeed protect even people whose guilt proclaims itself from the rooftops.

IMO, the matter comes down to how one defines justice: whether it's a personal matter or a social construct.

I believe the mechanism of justice is a social construct. Facts are presented to people who are not personally involved in the alleged crime, in order that they may decide which facts are true (and thus whether the perpetrator is guilty) without a desire for revenge, or a desire to escape the consequences of the crime, interfering in deliberations. That's why the families and friends of neither the accused nor the victim are allowed to be on the jury: because their reactions would inevitably be colored by their emotions.

The ritual of justice as social construct - as rational deliberation by people who have sworn to leave their personal prejudices out of it - is one of the things that separates civilization from barbarism. It's one of the things that has to be seen to separate civilization from barbarism.

Even people who by any normal, cogent analysis are guilty of the crimes they're charged with are tried and judged by the rules we set forth - get the benefit of that ritual - not for their sake, but for ours.

The concept of justice has been eroded (again, IMO) by the last few years' focus on its use as emotional therapy for victims and families of victims. We hear about how they need "closure," and how only convicting the accused, and then sentencing the accused to death, can give them that "closure." This strikes me as a terrible regression back to using the justice system for revenge rather than justice. Revenge isn't what justice is supposed to be about, and it's certainly not supposed to be for personal therapy.

Members of the Bush Administration have condemned Stimson's statements, but the overall gestalt of what the Administration has created - a star chamber system, into which people vanish for years to be tortured, regardless of their actual deeds; a rogue ideology in which some people get to decide all on their own who does and doesn't 'deserve' even the rudiments of judicial law and procedure - renders their protestations hollow.

And people who think that's a good idea make me wonder where they were during those classes of civics and social studies were supposed to be taught in junior high and high school.

[Jay C]

"And people who think that's a good idea make me wonder where they were during those classes of civics and social studies were supposed to be taught in junior high and high school.

Yeah, but don't forget Casey, all those classes (inadequate though they may have been) were probably held pre-9/11/01 - so have been rendered obsolete.

[Gary Farber]

"LawFirmGate"

Argh! I must try not to hate you, now.

Dahlia Lithwick is excellent, as ever.

[Sebastian Holsclaw]

Yes, as a general matter I always felt like we could get more traction in the torture issue by remembering to focus on the fact that we are torturing people ACCUSED of being terrorists. And from the cases we've found out about we suck at ensuring that the set of accused terrorists and the set of actual terrorists are closely similar.

[Witt]

I am struck by how thoroughly worldview influences beliefs on these issues. I had a civil but mutually-incomprehensible discussion about this with a friend. His basic take was: If the government tells me these are bad guys, that's good enough for me.

No amount of unraveling of what "bad guy" or "government" might mean, or how such blind faith might endanger him or a loved one some day, was persuasive to him. No amount of "At some point you have to trust the government to do its job" was persuasive to me. Stalemate.

[Katherine]

"Yes, as a general matter I always felt like we could get more traction in the torture issue by remembering to focus on the fact that we are torturing people ACCUSED of being terrorists. And from the cases we've found out about we suck at ensuring that the set of accused terrorists and the set of actual terrorists are closely similar."

There's a set of the population that this absolutely and positively does not work with--no matter how carefully you try to explain, no matter how many examples you give with how many citations, you will get absolutely nowhere. They just circle from empty slogan to empty slogan: "but we're at war, and they're enemy combatants." (without a hearing how do you know?) "they were captured on the battlefield." (only if the battlefield includes Bosnia, New York and Zambia) "but the army doesn't want to jail innocent people." (actually, I can prove that they have.) "I don't believe they're so innocent. You must hate the military to believe that story" (evidence that story is true.) "So you want to give them trials in civilian courts? But we're at war."

etc. etc. ad infinitum. You can go on till you're blue in the face, it gets you nowhere.

But I have to believe they're a minority, and obviously I endorse the general approach....

I mean: human rights groups must oppose torture because it's torture, categorically. But if they want to highlight the cases where it's been done to innocents; if Democratic politicians would rather denounce torture and indefinite detention in the context of innocent prisoners--well damn, I could make a list for them.

[Jesurgislac]

I tend to be a hardliner fanatic about this (the regulars mutter "Jes states the obvious again"): there are some things it is wrong to do to anyone, no matter what they have done - not so much for their sake, but for the sake of the people who will then be told off to do it to them, and for the sake of society and humanity, that we may not grow accustomed to such things being acceptable to do.

It is wrong to torture people. It is wrong to execute people. It is wrong to lock people up in conditions that will permanently damage them, mentally or physically. It is wrong to jail people indefinitely without trial. And this whether or not we can be absolutely certain they are the most disgusting
criminals who ever lived.

But yes: what you are saying (very clearly, thank you! - Hilzoy makes better choices drunk than some people cold sober) is one of those "well, duh!" things that should be stated and re-stated: do not ever assume that because someone has been accused of a crime, or arrested for that crime, that means they are undoubtedly guilty of that crime.

(Also, which appears to have got muddled in many American minds: an Iraqi in Iraq or an Afghan in Afghanistan attempting to kill foreign soldiers invading/occupying the country, is not a terrorist, and has a right to be assumed to fall within the protections of the Geneva Convention unless a competent tribunal shows otherwise, even if the foreign soldiers are American. Immunity from attack from occupied peoples is not among the legal privileges that soldiers enjoy.)

[Anarch]

I tend to be a hardliner fanatic about this (the regulars mutter "Jes states the obvious again")

I was planning on shouting it from the rooftops but fine, I'll mutter it instead.

*muttermutterrhubarbmutter*

[Bruce Baugh]

I particularly agree with Jes' parenthetical. One of the disadvantages of having the government run by people without a capacity for empathy, or at least with no interest in using it, is this inability to actually understand others. It's not hard to ask myself "How I would I feel and act if this were done to my country?" and review the Iraqi situation to understand why there's so much violence there. But that requires a certain kind of imaginative leap that our own rulers just caon't or won't make. That doesn't, however, change the fact that international law doesn't come with "unless it's Americans doing it' escape clauses.

When it come to international law, there are sensible and moral arguments on various sides. You might think it simply won't work, and that pursuing it distracts from efforts that could improve things. You might not trust the process by which people would rise to authority within the system, and believe also that that kind of process is not amenable to the sort of outside review you think necessary. And so on - this isn't a blanket insistence that any opposition to it is innatiely bad.

But there are also objections to international law that are basically sociopathic. If you can't imagine others having a claim on you to tell you to stop (or start) doing something, if you don't believe that others actually are your peers morally (note that you can believe in their equality and still thing that your practical moral duties begin with attention to your own home), if they just don't seem very real to you, then of course you won't want to be bound to respect their interests or concerns. At the base of all law is the idea that "I think I'm right" is not sufficient; to the clinical narcissist or sociopath, that just doesn't make sense.

[Slartibartfast]

I started to note last night that even Jack Bauer has begun to wax unenthusiastic about putting even known bad guys to the Question, but thought it was bad form for a first comment. Probably bad form for this far down, but there you are.

[rea]

"Stimson’s criticisms could just as easily be directed against our criminal lovin’ Founding Fathers."

Such as John Adams, who defended the British troops on trial for the Boston Massacre, at considerable short-term personal cost.

[Bernard Yomtov]

There's a set of the population that this absolutely and positively does not work with--no matter how carefully you try to explain, no matter how many examples you give with how many citations, you will get absolutely nowhere. They just circle from empty slogan to empty slogan:

Yes. It's utterly astonishing and frustrating and maddening. Go read the comments at Volokh, where Katherine and a couple of other commenters fought this battle nobly, and finally gave it up. It's a good bet that a number of those who simply refuse to understand are lawyers themselves, all the more frightening. (BTW, Both Eugene Volokh and, surprising to me, Jonathan Adler, were strongly critical of Stimson).

[Katherine]

byomtov: not only are some of the people who just don't get this lawyers--some of them are former U.S. Attorneys General:

But doesn't it require a court to determine whether someone is connected with terrorists? No, it doesn't in this case. Courts are not required.

How do you know someone is a terrorist unless they have been found guilty by a court?
Because they are members of Al Qaeda.

(the speaker is Ed Meese, and half the interview is like that).

[John Thullen]

Witt:

"If the government tells me these are bad guys, that's good enough for me."

This always gives me a giggle.

Let your friends know the IRS, OSHA, the EPA, and Fish and Wildlife will be over later for some things that will be good enough for them too.

Aid to dependent mothers? No doubt good enough for them. Stringent new rules on coal-fired power plants? Good enough for them! Higher capital gains taxes? They've never heard of anything better for them. Those IOUs on scraps of paper in file cabinets at Treasury that George Bush is trying to suss?
The government says they are actually gold doubloons wrapped in chocolate. That is so good enough for them they can hardly believe it.

We need to recruit your friends to the Democratic Party. The government could actually work effectively then. ;)

[KCinDC]

Scooter Libby is breaking the boycott. Does that mean he's a traitor after all, then?

[Doctor Science]

"If the government tells me these are bad guys, that's good enough for me."

Since 9/11, I've encountered a number of Republicans who say, apparently without any irony whatsoever, "you have to trust the government." These are the same people whose motto during the Reagan years was, "Government is not a solution to our problem, government is the problem."

I haven't actually managed to get someone who holds both views to explain how they do it without their heads exploding -- mostly because hearing them said it makes *my* head explode.

I'll bet Witt's friend is a perfectly kind, moral human being when he's dealing face-to-face with people whom he feels are like him. But it seems to me that he's really resistant to the idea that "there but for the grace of God go I".

[CharleyCarp]

I think readers might enjoy Justice Black's opinion in http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=341&invol=123>this case. Including the appendix.

[Pooh]

The frustrating thing for me is that everything in Publius' post is blindingly obvious. I think this is the reason why I tend to get short-tempered any time this debate comes up.

The level of willfulness it takes to not recognize these points must be exhausting, given that a moderately bright 4th grader could probably explain why these "niceties" are important...

[CharleyCarp]

A snippet therefrom:

In this day when prejudice, hate and fear are constantly invoked to justify irresponsible smears and persecution of persons even faintly suspected of entertaining unpopular views, it may be futile to suggest that the cause of internal security would be fostered, not hurt, by faithful adherence to our constitutional guarantees of individual liberty. Nevertheless, since prejudice manifests itself in much the same way in every age and country and since what has happened before can happen again, it surely should not be amiss to call attention to what has occurred when dominant governmental groups have been left free to give uncontrolled rein to their prejudices against unorthodox minorities. As specific illustration, I am adding as an appendix
Macaulay's account of a parliamentary proscription which took place when popular prejudice was high; this is only one out of many similar instances that readily can be found. Memories of such events were fresh in the minds of the founders when they forbade the use of the bill of attainder.

[Feddie]

Torture is never morally permissible. Never.

[CharleyCarp]

a moderately bright 4th grader could probably explain why these "niceties" are important...

Yep. http://ihatecharlesbird.blogspot.com/2006/05/jewish-hospital-st-marys-healthcare.html#c114773896515321071>Fifth graders don't buy it.

[CharleyCarp]

Another http://www.eisinc.com/release/storiesh/NYSBAR.910.html>repudiation, for those keeping track. And http://blogs.usatoday.com/oped/2007/01/an_appalling_th.html>another.

[Eric Martin]

This is by now obvious, but Stimson — either from malice or stupidity — is treating efforts to ensure that people are properly detained as efforts to “protect terrorists.” Of course, what’s really irritating Stimson is that the vigorous representation of the detainees is revealing how many of them are being wrongfully detained and how generally incompetent and immoral the administration’s detention policies have been.

P-diddy, I think you answered the question of malice vs. stupidity right here in this passage. His concern is that the attention of big law firms is uncovering wrongful detentions, the persecution of innocents and other mistreatment. Thus, he knows that being accused is not a sufficient substitute for being adjudicated as guilty.

He just doesn't care enough about the suspects to want to grant them those rights, figuring that a few innocent Muslim detainees is a cost worth incurring.

[Ugh]

Another repudiation, for those keeping track. And another.

Here's hoping they do some good, though I doubt it (I recall Addington wanting to illegally obtain evidence and use it against the accused in a criminal trial, without disclosing how it was obtained to the defense -- as a matter of policy. It's hard to reason with such people).

[CaseyL]

It's a real puzzle to me, how educated adults can be so completely hostile to precepts that are the foundation of American (and, for that matter, Western) political, legal, and social philosophy. If the deniers aren't simply malevolent, then what's the explanation?

[hilzoy]

CaseyL: I put a lot down to the persistent tendency, which I think is more common on the right these days (or at least: is found among a greater proportion of the people who turn up in the papers and on blogs) to assess things in terms of their imaginary picture of their opponents' motivations.

Liberals, as we know, are always in favor of being nice to people they imagine to be victims, however horrible those people might be. We think that all that poor misunderstood Osama bin Laden needs is a hug and a few rounds of Kumbaya. That being the case, whenever someone you take to be a liberal seems to be worried about the treatment of someone, it "has" to be because of this peculiar feature of them. Plus, of course, when we're worried about how someone is being treated by the US, our famous hatred of America has to come into play.

And "therefore", "obviously", conservatives have to take the opposite view.

I'm making fun of this, but I think something like it explains a lot. Not least how people can be willing to toss the principles on which our country was founded overboard in the name of patriotism.

[Ara]

Truth is: I don't think this kind of intimidation plays well to the Base, unless the Base is merely that 29% that's happy about Bush's performance but upset about Rumsfeld's being fired. Pretty darn sure most Americans realize there is no point whatsoever to intimidating the lawyers of the accused.

[Gary Farber]

"Pretty darn sure most Americans realize there is no point whatsoever to intimidating the lawyers of the accused."

I am not at all confident of this. I think OCSteve is representative of a huge segment of the population, and it's highly possible they're the majority.

Not to mention the minority proportion of the population that believes that the solution to The Terrorism Problem is for everyone in the world to find Jesus.

[John Thullen]

"We think that all poor misunderstood Osama Bin Laden needs is a big hug and a few rounds of Kumbaya."

Actually, that might be an effective deterrent. Every time Michelle Malkin hears a liberal sing Kumbaya she runs out and shoots herself.

[Bruce Baugh]

I agree a lot with Hilzoy about the "being the opposite of what we we think our opponents are like" factor, and feel it fits nicely with my impression of adults who've gotten tired of the work that maturity takes anda re into acting on emotion and impulse, while still wanting the respect due to adults.

[JP]

Yes, yes, but as Stephen Colbert pointed out, if you let all the innocent ones out, you might let a guilty one go free!

[CaseyL]

But, Bruce, how many people like that do you actually know?

I know quite a few people who are, essentially, arrested adolescents - but that's a far cry from basing one's beliefs on a knee-jerk opposition to a (cartoon character notion of) what one's "opponents" believe.

It also doesn't explain why some people simply refuse to take in the fact that the detainees aren't all "terrorists" - why, no matter how often that fact is pointed out to them (with cites! links! verification!) they can't hear it any more than I can "hear" infrared radiation.

And I do, personally, know at least one of those 'some people,' because I spoke to him, face to face, and when I said that, he quite literally tuned out: gaze unfocused, he looked over my head as if I'd ceased to exist. Then repeated the "they're all terrorists" line. It was eerie, like talking to an animatron at Disneyland.

[Anarch]

But, Bruce, how many people like that do you actually know?

I know a few people who are reflexively anti-liberal, though whether that goes to indoctrination, general contrariness or arrested adolescence I couldn't say. I also know a number of people who are reflexively anti-conservative or anti-Bush but strangely they don't seem to be advocating war crimes.

[Bruce Baugh]

Casey, I've known several dedicated contrarians - not all of them politically active, but I've seen the behavioral principle at work in in religious and hobby communities too.

The bit about people who are tired of being adults is somewhat more speculative, because very few folks will ever come out and say it directly, whereas you can catch contrarians revealing it from time to time. It's my interpretation, though I feel fairly confident in it.

[nadezhda]

I came across this factoid that puts the importance of procedural protections in perspective.

Over the 160 years from 1500 to 1660, Europe saw between 50,000 and 80,000 suspected witches executed. About 80% of those killed were women. Execution rates varied greatly by country, from a high of about 26,000 in Germany to about 10,000 in France, 1,000 in England, and only four in Ireland. The lower death tolls in England and Ireland owe in part to better procedural safeguards in those countries for defendants.

[Gary Farber]

"The lower death tolls in England and Ireland owe in part to better procedural safeguards in those countries for defendants."

Sure, but don't you realize how many witches they let go free?

[Gary Farber]

Stimson's apology, for the record.

[Fledermaus]

Stimson's apology, for the record.

Jesus, he was a defense attorney at one time. That actually makes his comments even worse. He should know better.

"Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not."

All I can say is what was he thinking?

[dutchmarbel]

The lower death tolls in England and Ireland owe in part to better procedural safeguards in those countries for defendants.

Geographically, the center of witch-burning lay in Germany, Austria, and Switzerland, but few areas were left untouched by it. No one knows the total number of victims. In southwestern Germany alone, however, more than 3,000 witches were executed between 1560 and 1680. Not all witch trials ended in deaths. In England, where torture was prohibited, only about 20 percent of accused witches were executed (by hanging); in Scotland, where torture was used, nearly half of all those put on trial were burned at the stake, and almost three times as many witches (1,350) were killed as in England. Some places had fewer trials than others. In the Dutch republic, no witches were executed after 1600, and none were tried after 1610. In Spain and Italy accusations of witchcraft were handled by the Inquisition, and although torture was legal, only a dozen witches were burned out of 5,000 put on trial. Ireland apparently escaped witch trials altogether. (Young)

I knew that we actually had the 'Heksenwaag' (witches scales), where you could get weight and if you were normal weight you'd get an official document to proof that you couldn't be a witch. That really perked up local tourism ;)

Allowing torture played an important role too.