Re: Statements made by Deputy Assistant Secretary of Defense for Detainee Affairs Charles Stimson threatening the livelihood and reputation of attorneys acting for people detained in Guantánamo Bay prison.
To: President George W. Bush, Vice President Richard Cheney, Secretary of Defense Robert Gates and Attorney General Roberto Gonzales.
From: Paul Copeland, Director, LRWC and Gail Davidson, Executive Director, LRWC and C. A. Morris, B.A., LL.B., LL.M., Director, LRWC.
Lawyers’ Rights Watch Canada (LRWC) is a committee of Canadian lawyers that provides support internationally to lawyers in danger and promotes enforcement of international human rights standards. Much of LRWC work is on behalf of advocates attacked or threatened by their own governments for representing politically sensitive causes or cases.
We are writing to express our concern about reported statements made by Deputy Assistant Secretary of Defense for Detainee Affairs, Charles Stimson on January 11, 2007 in a Federal News Radio interview. Mr. Stimson’s reported comments appear designed to prevent Guantánamo Bay detainees from being properly represented by counseling a boycott of lawyers and law firms that represent such clients and by casting doubt on the ethical integrity of these lawyers.
Mr. Stimson named a number of law firms which do this pro bono work, and warned, “[c]orporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists.” He then went on to say: “Some [lawyers] will maintain that they’re doing it out of the goodness of their heart — that they’re doing it pro bono, and I suspect they are, Others are receiving monies from who knows where and I’d be curious to have them explain that.”
LRWC is appalled that the very U.S. government official in charge of detainees affairs should attempt, by such statements, to further prevent the proper representation of hundreds of people detained in Guantánamo Bay prison in violation of all international rights and standards governing detention.
LRWC was pleased that a spokesman for the Pentagon, Lt. Col. Brian Maka, stated that Mr. Stimson’s comments “do not represent the views of the Department of Defense or the thinking of its leadership.” We were encouraged that Mr. Stimson has on January 17 apologized for his remarks. However, we remain concerned that the United States administration made no formal denunciation of Mr. Stimson’s statements.
The people held in the U.S. prison at Guantánamo Bay require and are entitled to legal representation to properly determine the legality of their detention and treatment, to secure their liberty and to obtain, from U.S. courts, protection from torture and other illegal treatment.
In 2004 the Supreme Court in Rasul v Bush 542 U.S. 466 (2004) and Hamdi v Rumsfeld 542 U.S. 507 (2004) confirmed that people detained in Guantánamo Bay are entitled to have the legality of their detention reviewed by the United States federal court through habeas corpus proceedings. Under U.S. law, such proceedings import the right to be heard by an independent judge and to be represented by a lawyer of choice. Within a month of the Rasul decision, the Department of Defense moved to deny detainees (some of whom have been detained for over five years without charge or trial) these rights, by establishing Combat Status Review Tribunals. This procedure strips detainees of the right to a hearing, the right to an independent tribunal and the right to legal representation. We are aware that all but 10 of the 770 people who have been detained at Guantánamo Bay since January 2002, some for over 5 years, have not been charged with any offence. This is a violation of very basic Customary International Law and international human rights Conventions.
Mr. Stimson’s comments violate a number of principles that form the foundation of a legitimate legal system, namely;
1. the right of persons deprived of their liberty or accused of crimes to be represented by a lawyer empowered to effectively protect rights and achieve justice ; and,
2. the right of lawyers to perform their professional functions without intimidation, harassment or improper interference ; and,
3. the prohibition against identifying lawyers with their clients causes.
As a lawyer himself, Mr. Stimson must be aware of the Model Rules of Professional Conduct of the American Bar Association. Rule 1.2 (b) states:
“A lawyer’s representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political,
economic, social or moral views or activities.”
The principle of an independent bar free from threats, direct or indirect, is upheld in the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by consensus by the UN General Assembly on December 9, 1998. This instrument is intended to ensure the international recognition that lawyers and other human rights defenders have a positive duty to promote universal respect for and observance of human rights and fundamental freedoms without threat. In particular, this instrument, affirms that
“… everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law…”
The separation of powers is a fundamental principle that must be protected vigilantly and vigorously in all democracies. This includes the time-honoured principle that the courts must be independent and free from interference from the executive of the day. Independent courts rely on an independent bar, on lawyers free to fully and vigorously represent clients within the provisions of law and ethical standards that govern the legal profession. A bar that is free from direct or indirect threats of all kinds, including economic threats, is essential to the administration of justice. Without lawyers who are free from fear of adverse consequences of representing people before the courts, the courts cannot count on hearing full argument about the law and merits of particular cases. A vigilant protection and open public discussion of the traditions and importance of the independence of the courts and the bar is critical to the protection of from government administrations that might usurp and overstep their appropriate authority to the detriment of the state and the public.
The statement made by Mr. Stimson strikes at the heart of fundamental principles for the administration of justice, and therefore we consider it the statement of Mr. Maka and the apology of Mr. Stimson to be insufficient. We remain concerned as to whether a senior official who would make such statements should be retained in a position of such influence and responsibility in the administration. At a minimum, we consider it to be crucial that the Secretary of Defense and the Attorney General promptly make a clear statement at the highest level that your administration upholds the independence of the courts and the bar as essential to the administration of justice. In particular, we urge that the Secretary of Defense and the Attorney General promptly denounce statements made by Charles Stimson or any other public official that suggest that lawyers be punished, through economic boycotts or otherwise, for undertaking their lawful activities and duties (pro bono or otherwise) representing persons before the courts.
We would appreciate your early response to this letter.