The Stimson Fuss
A great deal of fuss has been made about the comments made by Cully Stimson, the deputy assistant secretary of defense for detainee affairs. It seems to me that Stimson’s remarks were more circumspect than they are being made out to be.
My explanation (and disclaimers), after the jump…
The money quote from Stimson: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
Eugene Volokh argues, “It seems to me quite clear from the interview that the Secretary isn’t merely predicting such an action by the law firms, but also saying that such an action would be good.” I respectfully disagree. The sentence is just a prediction. At the very least, he is not “saying that such an action would be good,” though he may by silence be implying it. Moreover, the last two comments suggest that Stimson may have had information that led him to believe that the views of one or more CEOs would become apparent in the next few weeks. Given the mini-scandal, this now seems quite unlikely.
Money quote #2: After calling the list of law firms representing detainees “shocking,” Stimson says, in response to a question about who is paying, “Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.” In this quote, Stimson explicitly states that he suspects that many lawyers are doing the representation out of the goodness of their hearts. He then notes “curious[ity]” about where the other money comes from. I’d be curious to hear who pays for the representation too. That falls far short of a claim that lawyers are being funded by terrorist front organizations.
Is it fair to infer that Stimson probably thinks it’s not so bad that CEOs would be upset at law firms that represent detainees? Sure, someone who thought that it would be terrible for CEOs to put any pressure on corporations probably would have said so. And he probably would have used the word “surprising” rather than “shocking” if he disagreed with his anticipated view of CEOs. But Stimson himself was careful not to condemn the law firms, and he certainly did not encourage corporations to dump law firms. Yet the NY Times headline (which cannot, of course, be blamed on the writer, Neil Lewis), states, “Official Attacks Top Law Firms Over Detainees.”
The NY Times concludes its article by quoting Stimson in an earlier interview saying that he was learning “to choose my words carefully because I am a public figure on a very, very controversial topic.” I would imagine that Stimson wishes he could take back his words on the law firms. But I think Stimson was in fact speaking carefully. The lesson we should perhaps all learn is that one can speak too carefully, because when one carefully limits what one says, others will make reasonable inferences about what someone who says that probably also believes.
The NY Times editorial, incidentally, was particularly unfair in its last paragraph: “Not only do we find Mr. Stimson’s threats appalling, we differ with him about 9/11. The tragedy and crime of that day was that thousands of innocents were slaughtered — not that it hurt some companies’ profit margins.” Nothing in Stimson’s remarks could be interpreted as finding the lost corporate profits as a result of 9/11 worse than the murders. It seems uncontroversial to observe that CEOs might be upset, inter alia, about the economic effects of the attacks.
One final point: As Jonathan Adler notes, a “senior U.S. official” was quoting in the Wall Street Journal as encouraging corporate CEOs to ask firms representing them not to represent alleged terrorists. We don’t know whether Stimson made those remarks. But even if he did, that shows that he was making an effort to separate his personal views from the official Administration position, limiting himself in his on-the-record remarks to making only descriptive comments.
DISCLAIMER: Cully is a friend of mine. So are Eugene and Jonathan. I like Neil Lewis too, but I admire him only from afar.
DISCLAIMER 2: Like the Attorney General, I think that it’s great that top law firms are representing the detainees. I disagree with, but do not find reprehensible, the view that law firms could spend their resources on more worthy causes.