Detainees Wouldn't Need Top Lawyers If White House Respected Civil Liberties

Poor Cully Stimson.

Hypocrites have been having a field day at his expense. He’s given everybody – from editorialists to the Attorney General, not to mention the law school deans and establishment bar types – an opportunity to feel good about their own virtue, without addressing the real issues that his comments raise.

What could be easier than denouncing clueless Cully?

In case you missed it, Charles “Cully” Stimson is the Deputy Assistant Secretary of Defense for Detainee Affairs who in a radio interview said out loud what a lot of people actually think: that the detainees at Guantanamo, some of whom have been held for years without charges filed against them, don’t deserve to be represented by the best law firms in America.

He even suggested that the firms’ other clients should put pressure on them to choose between their “pro bono” clients and their paying ones.

In an interview with Federal News Radio on the fifth anniversary of the opening of the Guantanamo prison, Mr. Stimson declared it to be “shocking” that “the major law firms in this country. . . . are out there representing detainees.. . . .when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms.”

And all hell broke loose.

The editorialists screamed. Almost all of them cited the example of John Adams representing the British soldiers in the Boston massacre as proof of our long and fine tradition of providing representation to the enemy.

Bar groups protested.

The law school deans wrote a letter asking the Bush administration to repudiate him.

Even Attorney General Alberto Gonzalez got in the act, saying “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases.”

Wrong. Having a good lawyer is no guarantee that your rights are respected. A lawyer and a lawsuit is a last resort, not the first. The best way to ensure that justice is done is not to allow injustice in the first place. The best way to ensure justice is for the nation’s leaders to remember that it is when we are most afraid that leaders charged with making and enforcing the law must show courage.

If anyone is in a position to do that, it is Attorney General Gonzalez. Who told the president that people could be held for unlimited periods of time without charges being filed, that they should be deined access to the courts, that they had no rights?

Who has put in place and defended the administration’s policies eviscerating civil liberties, particularly for those who are of Muslim descent?

Who is he to attack Cully Stimson?

We wouldn’t need the services of the nation’s best lawyers in these cases if the violations of individual rights were not so stark. Who is condemning that?

Where are the editorialists and the law school deans, the bar groups and the attorney general, when the issue is not the right to competent counsel, but the rights they are asserting: the rights to due process and free speech, to privacy and freedom from unreasonable search and seizure, not only for the detainees at Guatanamo, but for Muslims in this country, whose charities are being targeted, records are being seized, and conversations intercepted.

Throughout our history, good lawyers have stood up to represent the targets of public fear and government over-reaction. There were good lawyers who argued on behalf of the Japanese who were held in internment camps in World War II, and the alleged Communists who were persecuted in the McCarthy era, and the draft protestors who were on the front lines fighting the Vietnam War here at home.

Good lawyers are no guarantee of good results. It is not so simple. Good lawyers often lose, as many of them have in cases challenging this government’s policies since 9/11.

The hard question this week is not whether Cully Stimson was wrong in criticizing the nation’s leading law firms for defending detainees, but whether he and the Departments of Justice and Defense have been right in the assault on civil liberties that, thankfully, has lead some of the nation’s top law firms to stand up.

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Estrich's books include the just published "Soulless," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.

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