Too quick to judge

THE PENTAGON has disavowed some offensive criticism by one of its officials regarding American lawyers who have represented accused terrorists imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. But the crankish comments of Charles “Cully” Stimson, the deputy assistant secretary of Defense for detainee affairs, reflect a more pervasive reluctance by the Bush administration to acknowledge that injustices have occurred at Guantanamo.

Sounding more like a first-time caller than a government official, Stimson told a radio interviewer last week that “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.” Not content to float the idea of a boycott, Stimson, a lawyer too, speculated darkly that although some attorneys representing detainees may be doing so as a public service, “others are receiving monies from who knows where, and I’d be curious to have them explain that.” In an earlier period in U.S. history, that sort of hit-and-run insinuation was called McCarthyism.

Amid condemnation of Stimson’s remarks from the legal profession, a Pentagon spokesman said they “do not represent the views of the Department of Defense or the thinking of its leadership.” (Apparently a deputy assistant secretary is not part of the leadership.) For good measure, Atty. Gen. Alberto R. Gonzales said that “good lawyers representing the detainees is the best way to ensure that justice is done in these cases.”

But contradicting Stimson -- or, even better, firing him -- can’t alter the fact that his comments in one sense reflect the administration’s attitude. Stimson referred not to “accused terrorists” or “suspected terrorists” but to “terrorists.” From President Bush on down, the administration has downplayed the possibility that some of the more than 700 people who have been confined at Guantanamo were imprisoned unjustly (not to mention treated inhumanely). Never mind that about half of the original detainees have been released.

Before the U.S. Supreme Court ruled otherwise, the administration insisted that detainees at Guantanamo had no right to challenge their confinement in a U.S. court. The administration devised its own rules for military commissions to try them for alleged war crimes, until the high court ruled that Congress had to be involved. (Even then, the administration was able to convince Congress that detainees shouldn’t be allowed to file habeas corpus petitions.)

These policies bespoke an exaggerated understanding of executive power, even in wartime, but they also reflected a certitude bordering on smugness that has characterized too much of the administration’s conduct of the war on terror.

Many of the lawyers involved in detainee issues on a pro bono basis are motivated by loyalty to the Constitution, which the administration has sometimes appeared eager to overlook. Advocacy on behalf of due process is a form of patriotism and public service. Criminal prosecutors aren’t usually in the business of tarnishing defense attorneys, for good reason, and it’s important that the government maintain the same professionalism when prosecuting the war on terror.