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Retainers and Detainees

Corporate Advice from the Office of Detainee Affairs

by CHRISTOPHER BRAUCHLI

It is perfectly obvious that the barrage of criticism accompanying the statements made by Charles D. Stimson arises from a misunderstanding as to what people think Mr. Stimson thought he was talking about. It wasn’t what they thought.

Mr. Stimson is the deputy assistant secretary of defense for detainee affairs. Before George Bush there was no deputy secretary of defense for detainee affairs much less a deputy assistant. That was because the concept of "detainee" had not yet been invented. Creation of The Office of Detainee Affairs was announced in 2004 and its mission was to be responsible for strategy, development and policy recommendations pertaining to treatment of detainees and to handle reports from the International Committee of the Red Cross. Before its invention a person who was apprehended for criminal conduct was called a "prisoner" and his condition was described as being "in prison" or "imprisoned". A prisoner would discover in due course whether being a prisoner was a permanent condition i.e. for life, or finite i.e. for a term of years or until acquittal by a jury of the person’s peers. After he began his wars, George Bush invented a new word.

The invention was surprising because George Bush has never been perceived by even his doting mother, as a man of letters. (His decision to deliver the gospel of Iraqi escalation from the White House library added a touch of irony to the occasion.) By introducing the word "detainee" into the language when referring to those who would otherwise be referred to as "prisoners", he changed the criminal law landscape insofar as it affects those encapsulated by the word in a most unexpected way. Here’s how.

Guests who are late for dinner will call to say they have been detained but will be along shortly. Being a "detainee" suggests that at most any moment the person detained will find him or herself back in civilian life with sufficient government supplied funds to buy a bus ticket home. Unfortunately for those detained by Mr. Bush, however, he, having invented that particular use of the word has, as he has with so many of his inventions, given it new meaning. Someone detained by Mr. Bush will not simply be a few minutes late for a dinner. The person detained may never get to the dinner and, worse yet, may spend the rest of his or her life wondering why not since Mr. Bush has decreed that someone who being detained and misses dinner, is not entitled to know the reason for the detention. In that respect detainees differ from prisoners, the latter being entitled to know why they are what they are.

All of the foregoing is by way of explaining that Charles D. Stimson, Esq. is not, if you accept my analysis and ignore his words, the dim-witted oaf he appears at first blush. He is simply confused by Mr. Bush’s use of the word "detainee".

In the second week of January Mr. Stimson told Federal News Radio that corporations using law firms representing those detained in Guantánamo should sever their ties to those law firms. In a Wall Street Journal editorial echoing Mr. Stimson’s sentiments, Robert Pollock quoted an administration official (who may well have been Mr. Stimson) as saying: "Corporate C.E.O.’s . . . should ask firms to choose between lucrative retainers [lawyers representing Ken Lay, Dennis Kozlowski et al earned millions] and representing terrorists [who pay nothing]". Although Mr. Stimson didn’t say it, I’m sure he was only thinking of what was in the best interests of the law firms.

Mr. Stimson’s actual words saying companies should sever ties with law firms representing detainees because the detainees (who have not been tried or convicted) are responsible for the absolutely awful financial times that befell many companies after 9/11 seem to contradict my analysis. I give him the benefit of the doubt. As a lawyer he can’t have intentionally said such a foolish thing knowing that none of the detainees has been convicted of anything. Furthermore, the company that had the worst year after 9/11 was Enron. Its problems had nothing to do with 9/11.

I attribute the seeming contradiction between my analysis and Mr. Stimson’s words to a brief and uncharacteristic moment of misspeaking by him. I describe it as uncharacteristic because he is a man of great self-importance. In a 2006 interview with the magazine of Kenyon College, his alma mater, he said he was learning "to choose my words carefully because I am a public figure on a very very controversial topic." If he routinely made such foolish statements it would belie his assertion that he chooses his words carefully unless he really believes what he said about the detainees. If he believes what he says he should have described himself to the magazine as a "public fool on a fool’s errand" since that is what he obviously is.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu. Visit his website: http://hraos.com/