I still think that Andy and the others are failing to engage my point. The comments of Senators Kyl and Graham, for instance, are completely beside the point. The issue is not whether detainees should have access to federal courts. I agree that Rasul was wrongly decided, that Congress has the power to control the extent of federal court jurisdiction over the Gitmo detainees’ claims, and that there are good reasons to limit judicial interference with the federal government’s war powers. I would also agree that lawyers, such as Michael Ratner, who celebrate the obstructionist consequences of their litigation, should be criticized for this.
The issue is, given that detainees do have at least some access to federal courts (under existing precedent) and that some detainees will face prosecution, whether it is appropriate for a government official to discourage the representation of the detainees in their actions against the government. This context is what made Stimson’s conduct so problematic, and it is independent of the broader question. Indeed, this is why Ted Olson — who has defended the administration’s detainee policies — was among those to criticize Stimson’s remarks.
Let me offer an analogy. It is fairly clear that a government prosecutor cannot make public comments with the intent or effect of depriving criminal defendants of access to counsel. So, for instance, a government prosecutor could not encourage private companies to refuse to hire law firms who represent certain criminal defendants. Stimson, admittedly, is not a prosecutor in this context (though he was one, and so is clearly aware of these rules). He was, however, a de facto party to the detainees’ habeas litigation, as the individual within the Defense Department who oversaw Gitmo. Stimson’s formal separation from the prosecution is enough, in my view, to defeat any effort to sanction him, but his role in the detention of enemy combatants and his legal background are also enough not to excuse him for his comments.
Again, he suggested that private firms should be punished for representing individuals in legal procedings against the government in which courts have determined the individuals have a right to acccess to counsel. Say all you want about whether there should be any judicial process or right to counsel in the first place, but once that right attaches, it is wholly inappropriate for government officials to act in any way that would compromise this right.
A brief note on Cliff’s point: There may well be firms that have conflicts of interest, and if they fail to disclose such conflicts, they should be sanctioned. I also think there is nothing wrong if private companies choose not to hire firms with potential conflicts (or that are less than diligent in disclosing the potential for such conflicts). But until there is evidence of this, I think this is all speculation. I am also quite dubious that the reason attorneys at major firms are representing detainees is because they are receiving secret payment. Indeed, I think at many firms, the possibility of payment would make attorneys less likely to handle such cases. To paraphrase a friend of mine who works at one of these firms, many high-powered attorneys are happy to represent the scum-of-the-earth for free, but would feel dirty were they to receive payment for the same services.
For those who want more on this subject, I woudl again reference the series of posts on Volokh .