Disloyalty To The Constitution

A Bush official's attack on Gitmo defense attorneys revealed the administration's contempt for American law.

Aziz Huq

January 16, 2007

Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.

“Shocking” is what he said. But it was the baldness of Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson’s statement, not what he described, that proved shocking.

In a radio interview last Wednesday, Stimson made an impromptu sally against the law firms representing, pro bono publico, detainees in the Guantánamo Naval Base. He called their work shocking, darkly accusing some of “receiving monies from who knows where” and suggesting that their corporate clients drop their counsel. As usual, The Wall Street Journal ’s editorial page, one of the administration’s shills in these matters, quickly took up the cry. Barely concealed in Stimson’s rhetoric was the implication that it was somehow un-American to represent those who are accused—without, albeit, any trial or fair process—of disloyalty to the United States.

As I have explained before on this site , the most recent chapter of this sorry saga is the government’s claim that some detainees be denied access to counsel because they might spill the beans about the secret, and likely illegal, means of coercive interrogation used against them.

From the beginning of its detentions, the administration has sought to deny lawyers access, or perhaps to control that access, making it another tool to break down detainees’ will. Its rationales fall far short of adequacy. Claiming that denying access to lawyers was essential for security reasons, the government has nevertheless turned on its heel and released the very detainee at issue when faced with the prospect of a judicial hearing.

More than seven hundred men and children have passed through Guantánamo. About 395 remain imprisoned there. Many have awaited a day in court to show their innocence since 2002. Five years’ delay has ensued not from the lawyers’ dithering, but from the government’s use of every trick, dirty and fair, to avoid the day when a judge looks at the evidence on which the detentions were based.

Yet it is the tradition of ensuring fair representation of any person, even when it is not compelled by the Constitution, that is the proud American tradition. And assaults on lawyers deviate (although not without precedent) from that history—deviations that can only be explained by the wholesale moral and tactical failure of the administration’s detention policies.

The American Bar has a long and proud record of defending those who, at first blush, were seen as the enemies of the nation. When he was an aspiring lawyer of 35, President John Adams defended Captain Thomas Preston and British troops accused of the Boston Massacre of 1770. Unpopular with Adams’ friends and political allies, the decision hardly reflected latent loyalism on the part of the future commander in chief.

Today the case for representation is even stronger. Unlike in 1770, there is simply no evidence that many of the detainees have done any wrong.

In our own century, Colonel Kenneth Clairborne Royall represented Nazi saboteurs were caught trying to enter the United States during World War II. Flouting his orders, Royall took his clients’ case from the military to the civilian courts. The resulting Supreme Court judgment was, as Justice Antonin Scalia has said, “not [the] Court’s finest hour.” But Royall fought tenaciously for his clients, and later went on to become secretary of war and then the first secretary of the army for Truman.

Today, Royall’s successors in interest are attorneys like Charlie Swift, detainee Salim Hamdan’s lawyer. But rather than being promoted like Royall, Swift was passed over for promotion and forced out of the Navy .

The importance of fair representation takes constitutional form, too. In the landmark case of Gideon v. Wainwright , criminal defendants were guaranteed right to counsel. Of course, the Guantánamo detainees have not been put before a criminal tribunal. (And by denying that this chance to show innocence, the administration stymies any argument of an entitlement of access to counsel).

Even when no constitutional entitlement to counsel obtains, the government still cannot unfairly interfere with the relationship of counsel and client. In 2001, the Supreme Court invalidated federal rules that curtailed federally-funded legal aid lawyers from making certain arguments . Judges themselves, as well as the broader public, depend on the untrammeled ability of lawyers to do their job.

Arguably, the Supreme Court in 2004 recognized that these principles of fair access to counsel extend to those detained at Guantánamo. To pressure lawyers into renouncing representation midway is not only distasteful and ethical then, it also has constitutional dimensions.

Yet attacks on lawyers for unpopular causes are also not new. Consider the House Un-American Affairs Committee (HUAC,). In the late 1940s, HUAC began its famous inquisitions into the “communist specter” in America. (HUAC was established in 1938 but didn’t become reach its apogee until the 1940s). Those called before HUAC suffered enormously—they lost jobs, reputations, liberty and in some case their right to remain in the United States.

In March 1954, Senator Joe MacCarthy called for hearings on “Reds” in the armed forces. And it was his attack on a lawyer from the firm of Hale and Dorr, Joseph Welch, that brought him low.

Welch was representing the Army. He had in his employ a young associate, Frederick Fisher, who had once belonged to the National Lawyers Guild, a left-leaning association. When Welch learned of Fisher’s history, he sent Fisher back to Boston.

But that didn’t stop McCarthy. The senator named in the hearing the absent Fisher, calling him a member of “an organization … named … as the legal bulwark of the Communist party” (an accusation that, quite apart from anything else, was nonsense).

Joe Welch’s response was quick and sharp.

“Until this moment,” said Welch, “I think I never really gauged your cruelty or your recklessness… Little did I dream you could be so reckless and so cruel as to do an injury to that lad…. Have you no sense of decency, sir, at long last? Have you no sense of decency?”

Words that may some application today?

Today, Hale and Dorr is part of Wilmer Cutler Pickering Hale and Dorr LLP, one of the most respected law firms in the country, a firm with a considerable record of public service of which its partners have every right to be proud: One of its latest practices is the representation of Guantánamo detainees.

Until the administration is set right, lawyers like those Stimson attacked will remain “true heroes of the law,” as Neal Sonnett of the American Judicature Society said last week. And until then, as the canny HUAC witness and playwright Bertolt Brecht once said, unhappy is be the land that needs such heroes.