Courts - Attacks on detainees' lawyers show lack of understanding

Earlier this month, a video advertisement issued by Keep America Safe, a national security organization headed by Liz Cheney, daughter of former Vice President Dick Cheney, and neoconservative commentator William Kristol, demanded the names of nine Department of Justice appointees who had previously represented detainees held at Guantánamo.

Referring to them as the "Gitmo 9" and the "Al-Qaeda 7" and questioning "Whose values do they share?," the ad juxtaposed their alleged unpatriotic actions with a picture of Osama bin Laden. It labeled them the "Department of Jihad."

Their demand for the names to be publicized was in response to a request by Iowa Republican Sen. Charles Grassley.

The gist is to equate representation of these unpopular clients with a lack of patriotism. It is an apparent attempt to use these members of the bar as an example of the Obama administration's softness on terrorism.

What it really shows is a lack of even the most basic rudimentary understanding of the very cornerstone of the American experiment -- that those facing a loss of liberty at the hands of our constitutionally mandated legal system deserve some say in challenging accusations of their guilt.

There's a reason why the American system demands representation of the unpopular, the repugnant and the scorned. It's because we always have to ask the question: "What about the rights of the innocent people who are accused?"

It is true that there is rarely sympathy for actual criminals or actual terrorists. But if we were to suspend the Constitution, end all legal safeguards, and give up on the right to allow the accused to fairly defend themselves, what happens when the truly innocent person is wrongly accused?

The bottom line is that we don't support the American system of due process and fair trials because we're so concerned about helping out the bad guys; we do it to protect ourselves. I wonder how those who bash the system of constitutional safeguards would feel if they or their law-abiding loved ones were mistakenly accused, and every attempt they made to try to clear themselves was met with a sneering, "Oh, you criminals have all the rights."

It has been suggested that there is a distinction to be made here -- that enemy combatants do not or should not have the rights of those civilian defendants or accused citizens of the United States. But what if Americans were seized by a foreign government and held for years without any chance of ever showing their actual innocence? Wouldn't we demand at least an opportunity to have their guilt proven or not?

As the years have gone by, and many of the accused have been detained at Guantánamo for almost a decade, there is an understanding that while there are likely a number of terrorists held there, there is also strong support for the idea that there may have been some innocent people scooped up in the confusion of the mass arrests. That is what mandates an effort to try to sort this out.

We've also had too many examples in recent years of people who seemed so clearly guilty of their alleged crimes that they were easily overwhelmingly convicted only to be released years later when DNA proved their innocence and showed that the truly guilty had apparently gotten away with it.

That is why we can't jury-rig some kind of system in which only some people have the right to trial, but the people who, at first blush, look like really bad criminals or terrorists shouldn't have attorneys or trials because the initial evidence put forth against them looks damning.

Hence, the role of the attorney. If we want to do the fair, just thing and not take the chance of permanently warehousing the potentially innocent while the whole world is watching, why would there be something tainted and unseemly about the champions of those rights?

By implying that the detainee's American attorneys are advocating for terrorism, Cheney and her crew are under the fundamental misunderstanding of associating the attorney with the client. The dangerousness of that is that when attorneys are demonized for taking on controversial and detested cases, and their loyalty as Americans is questioned for doing so, it might make it difficult for hated clients to get counsel. Then, the rights of all of us are weakened. The genuinely innocent might be denied their rights simply because they are unpopular.

Whenever an attorney battles to hold the government's feet to the fire, that defense counsel makes us all safer.

Though at its core the Cheney-Kristol ad might be a blatant attempt to score points against the Obama administration, it really is not a liberal versus conservative debate. Nor are the Republicans lining up against the Democrats on this one.

That was underscored when a group of leading conservative lawyers and theoreticians denounced the Keeping America Safe ad. That included former special prosecutor Kenneth Starr; former Bush administration Solicitor General Ted Olson; Republican Sen. Lindsey Graham; numerous members of the conservative Federalist Society; and former attorneys for the Bush administration.

A number of them issued a joint statement that decried the "shameful series of attacks" by Keep America Safe. It noted that the "American tradition of zealous representation of unpopular clients is at least as old as John Adams' representation of the British soldiers charged in the Boston massacre."

Today, Adams' representation in the Suffolk County courthouse of one of the British regulars charged with killing five civilian colonists in Boston in 1770 shows that the right of the unpopular to counsel goes back even prior to the very creation of the United States a half-dozen years later.

Adams' risk in taking on the case that no one else wanted since it looked like a foolish career-killer just as he was contemplating a run at public office is today viewed as a highly principled foundation for the American legal system that became the envy of the world.

Our admired legal system is replete with other examples of the upholding of the rights of the scorned. In 1942, after eight Nazi saboteurs had landed and were captured in Amagansett, N.Y., and Ponte Vedra Beach, Fla., seven American military officers served as their defense counsel. The defendants were convicted, and six of them executed, yet their American defense counsel were lauded and promoted.

Although the Cheney-Kristol group, if it had been around and operating in 1942, might have denounced the American military officers as traitors, they were, in those times, rightly commended for upholding the nation's highest ideals by supporting the bedrock principle of the distinctively American right of the accused to counsel.

We should not scuttle democracy whenever the charge is particularly heinous or the accused appears, at first glance, to be particularly unlikable.

Peter Elikann is a truTV Network commentator, author and Boston attorney.

Published: Mon, Mar 22, 2010

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