Tuesday, November 16, 2010

Crossing the Line

John Adams
I have been representing death row inmates for over 20 years.  My clients have been convicted of committing some pretty despicable acts.  When I reveal to others what I do for a living, I sometimes get a horrified reaction, and am then asked with disgust,“how can you defend those people?”  My answer is multi-fold: (1) I don’t believe in the death penalty; (2) my clients are not the sum total of their bad acts but have a humanity about them that is worth defending; and (3) I believe in the criminal justice system and the right of everyone to a vigorous defense in a court of law. 

Because I have been questioned about the legitimacy of what I do -- representing those despised by society -- I was disheartened to read Andrew Sullivan chastising the ACLU and CCR (Center for Constitutional Rights) for representing Anwar al-Awlaki.  Others, including a law professor who is on the CCR board, have also criticized the legal challenge brought in support of Awlaki.  The Obama Administration has authorized the killing of Awlaki, an American-born cleric tied to Al Qaeda and allegedly hiding in Yemen.  A lawsuit brought by Awlaki’s father, who is represented by the ACLU and CCR, challenges “whether the government has the power to kill any American citizen it labels as a terrorist without review by the courts.”  Shouldn't we be questioning the legality of our government's ability to kill American citizens, and shouldn't we celebrate instead of condemn a justice system that gives us a vehicle to argue the constitutionality of such practices?  Even the federal judge hearing the case pressed the Justice Department "to explain why the government needs a court warrant to eavesdrop on an American overseas but not to kill one."  This does not “cross the line” as Andrew Sullivan asserts.  Indeed, as Glenn Greewald passionately argues:  "How could it ever 'cross a line' for a civil liberties lawyer to represent an American citizen in an American court arguing that the Government is transgressing the limits of the U.S. Constitution?  The only thing that crosses a line is to insinuate that there's something improper about that." 

This controversy is reminiscent of the recent campaign by Liz Cheney and her group, Keep America Safe, which smeared lawyers in Obama's Justice Department as the "Al Qaeda 7," for previously having represented Guantanamo detainees.  I am obviously not objective about this, but I believe that a lawyer's most important role is to represent people who are hated and feared, and to ensure that the government is following the law.  Back in March, a group of former Bush Administration officials and other prominent lawyers published a letter condemning Liz Cheney's ad as shameful.  They rightfully stressed that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."


Stephen said...

Andrew Sullivan, as always, carefully chose the words to title this blog post: Defending an Active Terrorist. Active is the operative word here.

The would-be target for assassination, Anwar al-Awlaki, is neither an inmate nor is he a prisoner; rather, he is an active and at-large enemy of the United States. The CCR dissenter that Sullivan highlights, Karima Bennoune, law professor at Rutgers school of law, notes that “Anwar al-Awlaki is not a detainee; he is still at liberty and able to gravely harm others by inciting and advocating murder." If that’s a distinction with a difference, then the comparison to John Adams’ heroic stance to defend captured British soldiers accused of mortally wounding Americans is not apples to apples. Were al-Awlaki already apprehended, Bennoune, for all we know, might very well agree to serve as his legal counsel.

Bennoune’s other objection to CCR's stance is that it discredits itself by selectively describing al-Awlaki “only as 'a Muslim cleric' or 'an American citizen', and repeatedly suggested that the government did not possess evidence against Awlaki."

Assuming that the United States does possess evidence against Awlaki, the question as to whether the it can then legally target him for assassination is the remaining unsettled question, one which raises debates regarding “constitutional fundamentalism” and arguments that “the Constitution is not a suicide pact.”

Lovechilde said...

Thanks, Stevie, for trying to provoke a debate (I tried to show a little ankle on this one) and I hope others join in. I'm just sayin' I'm not comfortable "assuming" the U.S. possesses sufficient evidence to target al-Awlaki for assassination, and that it is legitimate for lawyers to question the government's actions.

Stephen said...

I noticed, thanks. And a Lovely ankle it is (though a tad hairy).

I'm trying to get in shape for FAU Law Moot Court next semester. It'll be my first time and I'm a little nervous. Wish me luck!

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