an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The current campaign against Attorney General Holder for hiring lawyers who have either represented Guantanamo detainees or have filed briefs or otherwise taken positions supporting their interests in habeas corpus litigation is a nasty business that should offend every American. The demand for a list of these lawyers' names brings to mind Senator Joe McCarthy and his list of communists in the State Department. It also brings to mind our second president, John Adams, and an equally patriotic lawyer named Kenneth C. Royall who got to be Secretary of War and Secretary of the Army after defending the German saboteurs who were convicted by a 1942 military commission. The effort to delegitimate the representation of detainees by treating as infiltrators those who have answered the call to public service in the current administration is beneath contempt. No such objection was raised when Royall was selected to be a brigadier general or senior civilian official. Nor did Adams’ representation of the Redcoats who perpetrated the Boston Massacre—probably the most loathed criminal defendants in Eighteenth Century North America—prevent him from succeeding George Washington.
In 2003, when the military commissions were just getting underway, a nonprofit organization I head, the National Institute of Military Justice, struggled with whether civilian attorneys should participate in what many believed were deeply flawed commissions. In the end we opposed a boycott:
The question whether to participate in proceedings when one believes that the governing procedures are an unwarranted departure from due process norms must be decided according to each individual’s conscience and professional values. But it would be as unfortunate for the American justice system for competent civilian defense counsel to make themselves unavailable in military commissions as it would be if civilians were formally precluded from participation. Military lawyers have proven over many years that they can and will provide zealous representation, even for highly unpopular clients. Nonetheless, and whatever else may be said of military commissions, public confidence in the administration of justice would be ill-served by a boycott by the civilian bar. Public esteem for the bar would also suffer. . . .
The absence of competent civilian defense counsel from military commissions would mean that talent and experience that might improve the quality of justice and promote confidence in the fairness and integrity of the proceedings will be missing. There is an argument, of course, that by abstaining from military commissions, civilian lawyers will demonstrate their rejection of the procedures chosen for these tribunals. But as long as those accused face trial by commission, abstention by the civilian bar cannot increase the likelihood that they will receive justice or at least as much justice as might be obtained with help of civilian counsel. . . .
Mindful of the fact that the decision to participate may be a function of deeply held and, in many instances, conflicting personal and professional values, and that reasonable people may well differ on the matter, we recommend that attorneys who are otherwise qualified for the civilian defense counsel pool, and have the time, give serious consideration to submitting their names. The highest service a lawyer can render in a free society is to provide quality independent representation for those most disfavored by government. . . .
The bar came forward and was right to do so, whatever one may think or feel about the detainees themselves. Lawyers from nonprofit organizations and law firms big and small exerted themselves (winning impressive victories time after time in the Supreme Court) despite such disturbing events as the broadcast suggestion by a Bush Administration official that clients of some of the white shoe law firms whose partners and associates were representing detainees should take their business elsewhere. That official soon left the government and, to their undying credit, house counsel for the very law firm clients he sought to influence spoke up forthrightly to express admiration and support for the pro bono work of their attorneys.
What the detainees’ lawyers have done is in keeping with the highest tradition not just of the bar, but of our country. Don’t expect any of them to be recognized in the gallery at some future State of the Union address, but if some of them are willing to serve the nation, we should welcome them rather than vilify them, confuse them with their clients, or permit others to use them as a tool for undermining an administration that is simply trying to clean up the mess it inherited.