Advocating for Unpopular Clients
Recently, a group called Keep America Safe posted a web ad asking, "Who are the al Qaeda Seven?" The ad's apparent purpose is to besmirch lawyers who had advocated for detainees at Guantanamo Bay and are now working for the justice department. The ad implies that, by representing Guantanamo detainees, these lawyers were somehow connected to al Qaeda and disloyal to the United States.
But that flawed position ignores some of the key values that undergird our legal system. Our system of justice requires that both parties to a controversy have the opportunity to be represented by counsel. As a society, we value this adversarial process highly, because we believe that allowing opponents to grapple with cases in the courtroom is the best way to uncover the truth. This means lawyers must sometimes represent unpopular parties or causes. For this reason, professional rules have long urged lawyers not to turn down a cause just because it is unpopular.
Meanwhile, the world is watching to see how we deal with the Guantanamo detainees. If we sentence a detainee to prison or death, his trial should be fair, with no implication that he was framed or railroaded. A primary way to defuse any such implication is to allow him the full benefit of a vigorous defense by counsel.
It is worth noting that some detainees' lawyers successfully argued their causes in the United States Supreme Court. One such lawyer, for example, prevailed in the Hamdan v. Rumsfeld case, which challenged the legality of the Bush administration's military commissions. A majority of the Supreme Court agreed with him. That lawyer fought for the ideals of our legal system.
It is also worth noting that some Guantanamo detainees were released without ever being tried, which suggests that they were not guilty of a crime.
We should highly value those lawyers who present a strong defense for unpopular clients, including Guantanamo detainees. By lessening the possibility that the innocent might be wrongly convicted, those lawyers allow us to be proud of the fairness of our legal system and to proclaim that fairness to the world. We do ourselves no service if we try to frighten them into inaction.