Opinion

Commentary: Liz Cheney's attack on American law

It was inevitable that sooner or later someone would attack a fundamental underpinning of the American justice system because it might accord our worst enemies the same rights as the worst offenders in our criminal courts.

Some folks don't think accused murderers should have good lawyers, either - and some defendants end up in prison for 17 years for a crime they did not commit. Ask Greg Taylor.

So perhaps it's not surprising that a group calling itself Keep America Safe would be critical of defense lawyers who have represented detainees suspected of terrorism. The group, whose board members include Liz Cheney, daughter of former Vice President Dick Cheney, has been pointed in its criticism because the Obama administration's Department of Justice hired some of those defense lawyers. A recent ad called it the "Department of Jihad" and questioned the attorneys' values.

The group's mission observes that "By turning away from the policies that have kept us safe, by treating terrorism as a law enforcement matter, giving foreign terrorists the same rights as American citizens ... the current administration is weakening the nation, and making it more difficult for us to defend our security and our interests."

But are we willing to change a basic precept of our legal system that every defendant deserves a defense - and thus become more like our enemies in al-Qaida and the Taliban and less like the America our founders envisioned?

In our system of law, every defendant is entitled to a lawyer to defend him. That's one of the things that makes our system fair - and for all the system's flaws, helps make it the best in the world.

Kenneth Starr, the lawyer who pursued President Bill Clinton for his personal misdeeds, understands this. He's among a group of distinguished lawyers who recently wrote, "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."

John Wester, a Charlotte lawyer and president of the N.C. Bar Association, notes that Abraham Lincoln understood this when he defended a man accused of murdering Dr. Jacob Earley, a friend of Lincoln and his commanding officer during the Black Hawk War of 1832.

And former U.S. Solicitor General Ted Olson understands this in ways few of us can imagine. Olson's wife was killed in the 9-11 attacks.

In 2007 Olson wrote, "The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession."

And North Carolina's Kenneth Royall understood that, when President Franklin Roosevelt assigned him to defend eight Nazis bent on mayhem who sneaked ashore during World War II. Roosevelt wanted them tried and executed in secret, but Royall bucked Roosevelt in order to give the Germans a vigorous defense. He lost the case, and six Nazis were quickly executed, but by even bringing challenges to the Supreme Court, Royall made his point. Royall - who later was appointed secretary of war and later secretary of the Army - considered his defense of the Nazis his most important work.

The thing that makes this so important is what it says about us as Americans. The standard of fairness that says every person accused of an offense or crime is entitled to representation is not about them. It is about us and who we are - a nation strong enough to stick to high standards of justice even when our enemies are not.

Wester thinks the criticism of lawyers who defend those accused of terrorism may be rooted in the post-9-11 belief that "if you defend our enemies, you endanger the military's ability to keep us safe" from those who would overturn our democracy. If that's their reasoning, he said, "It has no validity in my mind. I really think this movement runs contrary to the fundamentals of our justice system."

Keep America Safe would distinguish between accused defendants in U.S. courts, and enemy combatants. But if we're going to try them in any legal tribunal, they should have counsel.

Lindsey Graham, the Republican senator from South Carolina, is a lawyer and Air Force reservist who served in Iraq. He was rightly critical of the Justice Department's foolish effort to hide the names of lawyers it hired who had defended suspected terrorists.

But Graham recently said, "This system of justice that we're so proud of in America requires the unpopular to have an advocate, and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer."

I think Graham, Wester, Olson and Starr are right. I don't fear an America where every defendant, even a terrorist, is entitled to a lawyer. I fear an America where any defendant, in civil or military court, is not entitled to a lawyer.

It isn't right. It's un-American.

  Comments