Response to Adler on Stimson

by Andrew C. McCarthy

So a statement that Cully Stimson made which was both true and in violation of no disciplinary rule (the latter, I continue to believe, is beside the point), and which encouraged some introspection that is entirely appropriate (i.e., American corporations may want to reflect on whether they really want the gargantuan fees they pay law firms to subsidize the legal representation of jihadists seeking to murder our troops and our people) is problematic because he is (or was) a government official?

They should have given him a medal.

Here’s what Senator John Kyl, an attorney, said in the congressional record about the execrable activities of the lawyers who’ve tripped over themselves in the sprint to Gitmo to represent the enemy in wartime:

Keeping war-on-terror detainees out of the court system is a prerequisite for conducting effective and productive interrogation, and interrogation has proved to be an important source of critical intelligence that has saved American lives….  Giving detainees access to federal judicial proceedings threatens to seriously undermine vital U.S. intelligence-gathering activities.  Under the new Rasul-imposed system [i.e., imposed by the Supreme Court in Rasul v. Bush (2004)], shortly after al-Qaida and Taliban detainees arrive at Guantanamo Bay, they are informed that they have the right to challenge their detention in Federal court and the right to see a lawyer.  Detainees overwhelmingly have exercised both rights.  The lawyers inevitably tell detainees not to talk to interrogators….  Effective interrogation requires the detainee to develop a relationship of trust and dependency with his interrogator.  The system imposed last year as a result of Rasul – access to adversary litigation and a lawyer – completely undermines these preconditions for successful interrogation.

Senator Lindsey Graham, a lawyer, had this to say in response:

I agree entirely.  If I could add one thing on this point:  perhaps the best evidence that the current Rasul system undermines effective interrogation is that even the detainees’ lawyers are bragging about their lawsuits’ having that effect.  Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants held at Guantanamo Bay, boasted in a recent magazine interview about how he has made it harder for the military to do its job.  He particularly emphasized that the litigation interferes with interrogation of enemy combatants:  ”The litigation is brutal [for the United States].  We have over one hundred lawyers now from big and small firms working to represent these detainees.  Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they’re doing.  You can’t run an interrogation … with attorneys.  What are they going to do now that we’re getting court orders to get more lawyers down there?”

Now, everything Kyl and Graham said was true and important to hear.  Just like everything Stimson said.  But maybe we should censure them for saying it.  They are government officials, after all.  I imagine the ABA would be very upset about government officials casting this noble attorney work — helping terrorists avoid providing life-saving intelligence to our war fighters — in such a poor light.  We should probably encourage our government officials to stay mum or, if necessary, lie, lest truthful statements about an important public issue embarrass or offend the legal profession and the businesses that enrich it.

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