Adams and Stimson
The flap over remarks by the deputy assistant secretary of defense for detainee affairs, Charles Stimson, assailing white-shoe corporate law firms who represent Guantanamo terrorist inmates and call that work "pro bono," reminded us of John Adams. Adams is famous as the second president of America and as a successful American diplomat in Europe. Before all that, he was a Massachusetts lawyer who sided with the patriots against the loyalists and the British in the American Revolution.
For all Adams's patriotism, however, as recent biographies of Adams by James Grant and David McCullough have reminded us, the lawyer took on the defense of the British soldiers accused of perpetrating the Boston Massacre. It sent some tongues wagging in revolutionary Boston, but it foreshadowed the right to counsel that was later, in the Sixth Amendment to the Constitution, established as bedrock and, in 1963, affirmed in one of the Supreme Court's greatest cases, Gideon v. Wainright.
Adams's representation of the British soldiers took place before the Revolutionary War had formally begun. So it is a bit different from what Mr. Stimson was complaining about, which is American law firms representing, free of charge, terrorist enemy prisoners in wartime and calling their work pro bono publico, or for the public good. A column by Robert Pollack in Friday's Wall Street Journal reported, "Guantanamo detainees don't lack for legal representation. A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms."
Mr. Pollock mentioned Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb, and Blank Rome. Mr. Stimson, in his original radio comments, also mentioned Pillsbury Winthrop; Jenner & Block; Sutherland Asbill & Brennan; Mayer Brown; Paul Weiss; Weil Gotshal; Pepper Hamilton; Venable; Perkins Coie; Alston & Bird, and Fulbright & Jaworski. He said, according to the Journal's Law Blog, "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."
Mr. Stimson has since apologized for his comments, writing in a letter to the editor of the Washington Post, "I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel." Indeed it does. But one of the puzzles of the modern bar, as one of our favorite law professors is fond of reminding us, is that representing convicted serial murders and rapists on appeal is considered "pro bono" work, while representing corporations that actually employ people and provide needed goods in the economy is considered "selling out."
Adams understood that both sides do need counsel. But one of the reasons, in our view, that Mr. Stimson's remarks resonated so much is a sense, however vague, that while Guantanamo inmates aren't lacking for first-class free legal representation, the same can't be said for the families of terrorist victims, or, for that matter, those, such as Gilad Shalit, 20, a Jewish Israeli soldier, who is being held captive by Hamas with none of the courtesies — Red Cross visits, medical attention, white-shoe legal assistance, counseling by clergy — that the American left insists on for Al Qaeda detainees at Guantanamo.
Boston was atwitter about Adams's decision to represent the Massacre perpetrators, but the lawyer's reputation and career survived because there was no question, when one got right down to it, which side he was on or whose interests he ultimately represented. He was on the American side. We do not question the patriotism of the lawyers giving counsel to the detainees in Cuba. But what they are doing is different from what was done once the war broke out, by Adams who consecrated his whole life to defeating the enemy and winning the revolutionary struggle for our side.
