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Legal Rights for Terrorist Detainees
03/22/10
The Obama administration’s Department of Justice (DOJ) has come under fire for employing attorneys who at one time assisted in the legal defense of the accused terrorists held in detention facilities at Guantanamo Bay, Cuba. A conservative group called Keep America Safe—under the leadership of Liz Cheney, daughter of former Vice President Dick Cheney—released a political advertisement on the Internet demanding that U.S. Attorney General Eric Holder release the names of all DOJ employees who had ever performed legal work on behalf of terrorist detainees. The controversial ad charged that these lawyers sympathize with terrorists and pose a threat to national security.
The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to legal counsel to assist in their defense. There is a long tradition in American history of prominent attorneys defending unpopular clients and causes to honor this basic tenet of the nation’s legal system. In 1770, for example, lawyer John Adams agreed to represent the British soldiers accused of killing five American civilians in the violent incident that became known as the Boston Massacre. In the tense atmosphere leading up to the Revolutionary War, Adams knew that his decision would subject him to criticism and perhaps even put his life at risk. Yet he later described his defense of the British soldiers as “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”
In recognition of this tradition of service, a number of prominent government officials, attorneys, and legal scholars spoke out against Keep America Safe’s criticism of the DOJ. They argued that the lawyers who performed volunteer legal work on behalf of Guantanamo detainees were protecting the Constitutional rights of all Americans. They rejected the idea that such legal work was unpatriotic or rendered the lawyers unfit for government service. On March 8, the Brookings Institution released a statement signed by 22 former Republican administration officials that described the attacks as “shameful.” “To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit,” it declared. (We are unable to display the text of the document at this time. To view the text, please visit this website: http://www.brookings.edu/opinions/2010/0307_guantanamo_statement.aspx?p=1.)
Defenders of the Keep America Safe ad countered that it raised legitimate questions about the background and views of DOJ employees. “Would most Americans want to know if the Justice Department hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases?” former Bush administration speechwriter Marc Thiessen wrote in the March 8 Washington Post. “Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would—and rightly so.”
- Do you think lawyers who performed legal defense work for terrorist detainees should be eligible to work for the Department of Justice? Does your opinion change if the lawyers help set DOJ policy for the war on terror and other national security issues?
- Do you feel that the American people have a right to know the names of all DOJ employees who participated in the defense of terrorist detainees? Should the Sixth Amendment shield lawyers from criticism for defending unpopular clients or causes?
- If you were an attorney, could you defend an accused terrorist or another client whose alleged crime you found despicable? Explain why or why not.