Paranoia and Authoritarianism at the National Review

(updated below)

Over the last two days, the regulars over at the National Review's blog, The Corner, have been leaping to the defense of Cully Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, who suggested in an interview a few weeks ago that businesses should refuse to hire law firms that do legal work on behalf of Guantanamo detainees. He also suggested, somewhat cryptically, that these firms were getting paid to do this work by shady foreign entities. These comments were sharply criticized by people from across the political spectrum. The Washington Post issued a stinging editorial:

[I]t's offensive -- shocking, to use his word -- that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

Not surprisingly, Stimson was forced to apologize and later resigned. But his resignation seems to have touched a nerve among the writers at the National Review, and their reaction provides a window into the authoritarian mindset that has gripped the GOP in the post-9/11 era. Cliff May was the first to vent about Stimson's resignation, using the opportunity to repeat Stimson's entirely groundless charge:

[T]here also are scores of American attorneys representing detainees on a pro bono basis. Why do they do that? Maybe it is because they are genuinely concerned about protecting due process for detainees. Or maybe it is because they are, as Stimson said “receiving moneys from who-knows-where.” (Or – and this is my conjecture – perhaps they are currying favor with governments and groups that are or can become rewarding clients.)

Mark Steyn immediately seconded this crackpot theory:

We’re often told that these folks at Guantanamo are small fry – innocent Afghan goatherds who got swept up in Taliban fever but are no real threat to America. This is a characterization that doesn’t withstand much scrutiny: some of them were captured in the possession of, for example, six-figure sums in US currency, which seems a lot for a goatherd. Since then, the level of legal representation they’ve attracted is certainly striking. It may be merely the cachet that attaches to springing goatherds from the clutches of the Bush police state but it’s not inconceivable that it’s yet another by-product of the vast amount of walking-around money various jihad-friendly front organizations have sluiced about the western world.

After May posted some more paranoid innuendo about the Saudis retaining the services of various law firms, Jonathan Adler finally stepped in and tried to stem the lunacy:

For a government attorney to suggest that law firms should suffer consequences for representing detainees is contrary to the spirit, if not the letter, of the codes of professional responsibility to which attorneys commit themselves. The bar, as a whole, has a well-established obligation to try and ensure that all people have access to representation. This means that all individuals, even suspected terrorists, are entitled to retain a capable legal defense when subjected to judicial process, and it is wrong to impugn attorneys on the basis of the clients they represent. (Whether detainees should receive the amount of process some are demanding is a separate question.)

It is dismaying for me to hear arguments to the contrary from the Right because these sorts of blame-the-attorney-for-the-nature-of-his-client are so often deployed against conservatives and Republican appointees. This is one reason, among others, that Ted Olson and Charles Fried were among Stimson's prominent critics.

I don't know whether Stimson should have resigned, but his initial comments were wrong and should have been repudiated by both Right and Left from the outset.

But Adler's post only provoked more unhinged outbursts from his fellow Cornerites. May quickly followed up by repeating his charge:

Jonathan, your points are well taken but surely it should be of interest if some of the most prestigious attorneys representing detainees at Guantanamo say they are working pro bono but are in fact being secretly paid by foreign interests who prefer to remain anonymous.

Then Andy McCarthy weighed in with a page-long rant that has to be read to be believed. Here are some of the highlights:

Jon must refer to the "spirit" of the codes of professional responsibility because, thus far, not even the legal profession, despite the unreservedly Leftist bent of its highly active activists, has had the nerve to suggest that fealty to a body of rules for lawyers is more important than the fealty we lawyers, as American citizens, owe to the United States — including the obligation not to lend aid and comfort to the enemy.

And on that score, Jon, we are not talking about people "subjected to the judicial process." If these were ordinary criminal defendants — the "accused" for whom our laws require counsel such that we must even pay for them to have it — you would have a point. Lawyers for those defendants are fulfilling a constitutional function that our system says lawyers must fill. Here, however, we are dealing with alien enemy combatants who are in the military system, not the judicial process. They have no right to counsel. They are not U.S. indigents at sea in our civilian civil and criminal courts. They are enemy combatants detained by the military because they are making war on the United States and subjected to military commissions because they have violated the laws of civilized warfare. The lawyers who flock to them are not fulfilling a constitutional mission. They are volunteers — against the public interest. . . .

Gratuitously helping those trying to kill us and undermine our freedoms might be someone's idea of ethics. It is not mine. I wish the Pentagon had not pressured Stimson to apologize or resign. He had nothing to apologize for, much less to resign over.

After Adler again tried to talk some sense into May and McCarthy, McCarthy responded with a second unhinged rant, accusing attorneys of "helping terrorists avoid providing life-saving intelligence to our war fighters" and arguing that Stimson should have been given "a medal" for his comments. To cap off the debate, Mark Levin weighed in with his typically nuanced views:

There is nothing unethical about Stimson's comments. In fact, he was serving a public interest by shining a light on those law firms that are representing the enemy. Why shouldn't the public, and more particularly the consumer of legal services, know about the judgments of the lawyers they hire or might hire? These law firms are business entities. If Wal-Mart was selling GPS units to enemies of our country, I'd want to know about it. Apart from it being illegal, it would hurt their bottom line. The reason these lawyers and law firms are so upset has nothing to do with some kind of high principle.

They don't want to lose millions in fees paid to them by individuals and organizations that might find their representation of the enemy offensive and take their business elsewhere.

According to Levin, trying to ensure that detainees have some minimal level of due process is the equivalent of selling arms to the enemy. And just in case his position was unclear from his first post, Levin quickly followed it up with a second post in which he summed up the controversy thusly:

A deputy assistant secretary of defense was forced to resign because he dared to make public the connection between members of the legal community and the enemy. How pathetic. And the administration didn't have the guts to back this guy up. Also pathetic.

It's hard to put into words just how deeply paranoid and disturbingly authoritarian these views are. First, as a factual matter, the suggestion that attorneys doing pro bono work on behalf of Guantanamo detainees are "in fact being secretly paid by foreign interests" is completely and totally absurd. No one who has any knowledge of how law firms actually work could possibly entertain such paranoid delusions.

Firms encourage their attorneys to do pro bono work because 1) it provides unique opportunities to learn trial and advocacy skills, 2) it keeps the attorneys professionally fulfilled, and 3) it makes the firm look good, both to clients and to prospective recruits. Individual attorneys are given wide latitude in choosing what kind of pro bono work they want to do. This is true even of very junior associates. The idea that attorneys are being instructed by "the firm" to represent specific pro bono clients, much less to do so in exchange for secret payments from shady foreign entities, is crazy. As an attorney who works at a large law firm and does pro bono work regularly, I assure you that Steyn and company haven't the first clue what they're talking about.

But more fundamentally, what Steyn, McCarthy, May, and Levin all exhibit is an utter inability to even comprehend how normal, non-authoritarian people think. They cannot comprehend why any attorney would volunteer his services on behalf of Guantanamo detainees. To them, such actions can only be explained by greed (i.e. secret payments from Saudi Arabia) or a desire to give aid to the enemy. They all assume, mindlessly, that every single detainee is in fact a terrorist. After all, they wouldn't attack an attorney for representing an innocent person, would they? No, all the detainees at Guantanamo are, by definition, terrorists. They simply must be.

Unlike the crew at the Corner, we non-authoritarians believe in process. We understand that being accused of something is not the same thing as being guilty of something. This is a fundamental American value. It's why we have--enshrined in our constitution--a right to a jury trial, to habeas corpus, to counsel. Foreign detainees may not be entitled by law to all of the same rights, but it's not as if the fundamental realities which underlie these rights somehow disappear in the military context. Military and intelligence officials are just as prone to error as law enforcement officials; indeed, the margin of error in identifying terrorists is undoubtedly much greater than the margin of error in identifying criminals given cultural and language barriers and the limitations of our intelligence capacities. There have already been a number of well-documented examples of people being wrongly detained, often for years.

No matter how many of these cases come to light, however, people like Steyn and McCarthy will still insist on pretending that every person who sets foot in Guantanamo is a bona fide terrorist. Whether this is due to willful denial or mere apathy, it's a genuinely un-American sentiment.

What's even more un-American, though, is the complete inability of the Corner crew to understand why someone who cares about our country might take an interest in the plight of Guantanamo detainees. The attorneys who represent these detainees and write amicus briefs on their behalf are not doing so out of pity or out of some misguided animosity towards our government. They're doing so because they believe very deeply in what is supposed to be the core tenet of our system of government: the rule of law. Many of us find it genuinely disturbing that the Bush administration has claimed the power to arbitrarily and indefinitely detain whomever it chooses, to torture prisoners, and to try detainees in kangaroo courts using evidence obtained through coercion and torture. Many of us feel that if these practices are not challenged aggressively, the damage to this country will be severe and long-lasting.

These lawyers volunteer their time because they love their country and don't like what is happening to it under Bush's watch. They are standing up for basic values and principles that date back to the founding of the Republic, values and principles which are supposed to define us. The fact that this thought doesn't even occur to Steyn, May, McCarthy, or Levin speaks much more to their own authoritarian impulses than to any supposed moral failings on the part of the attorneys they criticize.

It's sad really. The National Review is supposed to be the standard bearer of American conservatism. But when discussion turns to the War on Terror, there is precious little to be found at The Corner that is either conservative or American. We are instead treated to the paranoid delusions of people who see nefarious motives behind principled and altruistic actions, people who are so far gone that they can no longer even recognize the basic American values motivating their fellow citizens, people who show utter disdain for process and for the principles upon which our Republic was founded. It's sad, it's pathetic, and it's more than a little scary.

(This post has been modified to fix some awkward grammar and phrasing.)

UPDATE: Andy McCarthy won't let this issue go. He delivers another long rant that ends with this:

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.

McCarthy's post drips with contempt for process and for our constitutional system of government generally. To him, an attorney who files an amicus brief questioning the president's use of executive power is "us[ing] our courts as a weapon of war against us." It's hard to imagine a more un-American sentiment, and I don't use that term lightly. It's also hard to believe that anyone who is not totally deranged could possibly think that pro bono attorneys are acting out of a desire to "use our courts as a weapon of war." What an absolute embarrassment this man is.