JURIST - Hotline: Stimson should be forced to resign

Ben Davis [University of Toledo College of Law]: "Charles 'Cully' Stimson has had a hard week. On January 11, 2007 he made shocking comments on the pro bono lawyers who are working on behalf of Gitmo detainees, calling for corporate CEOs to blacklist the firms at which these lawyers work. As we all saw, an uproar ensued and today he has made an apology. All is fine, right? Wrong.

As was noted to me by several colleagues, Mr. Stimson's apology merely apologizes for the aspersions made on the ethics of the Gitmo detainee lawyers. It is not possible of course to hold the beliefs he said on January 11 and the beliefs he said in his apology today. That duality is simply untenable. Of most importance, however, is that today he does not apologize for calling for a blacklist by CEO's of the law firms which employ many of these individuals. So, as it stands today, the call for a blacklisting and a boycott remains and it does not appear that all the aspersions (who is paying the lawyers) have been completely removed either (as another colleague has noted). What remains therefore is a slur on these lawfirms and their lawyers.

We should understand that the hand of government intimidation has not been stayed by his apology. Rather, the intimidation has become more indirect and insidious. Having seen many of these passive-aggressive actions over the years, I never believe they are innocent. Several years ago I noted in a Texas senatorial campaign that an operative made a blatant racist appeal as part of seeking to grab the white vote. The senatorial candidate (Cornyn) disavowed the racist appeal and fired the worker. To the more cynical it appeared that the worker had done his job for the candidate - he had pandered to a percentage of the electorate to tell them that the candidate was "one of them" so as to push more voters into the candidate's column. In the Corker-Ford senatorial race in Tennessee this past fall, this was precisely the type of tactic done with the ad (the "nude" white woman but also the white man in blackface presented as a hunter) there - though the disavowal was different in that the candidate said he was "powerless" to do anything about it. Of course, that changed quickly. But, the message was sent to encourage the atavistic to vote Corker.

Not to sully Cully, but it seems to me that the message to the CEO's has been passed and not retracted. All that is needed now are the phone calls of pressure and the deed is done - unseen and deniable. This machination needs to be stopped immediately and the means to do that is to have Cully be fired or invited to resign. Government intimidation of the legal profession is serious stuff in any democracy and it is prudent to protect against that in the most vigorous manner.

It is of some irony that the Deputy Assistant Secretary for Detainee Affairs appears to be a descendant of Henry Stimson, Secretary of War for FDR. Stimson was the Secretary of War at the time of the Nazi saboteurs case that became the subject of the Supreme Court decision In Re Quirin. From a read of Louis Fisher's Military Tribunals and Presidential Powers it appears that the procedure for that military tribunal was suspect - much like the criticisms of the Presidential Military Order Commissions or those that are coming out of the Military Commission Act. While dealing with detainees appears to be becoming a family business for the Stimsons as their form of national service (for which we all should be grateful), we must not let their zeal to please overshadow the terrible error made by Mr. Stimson on January 11, 2007 and left standing today.

The world has changed enough since 1942 that even a Good Shepherd like Stimson can be invited to resign. And the honorable thing in my humble opinion would thus be for Mr. Stimson to resign or for Secretary Gates to fire him. I do not fear for his ability to get commensurate work somewhere else."