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Justice for All?

LAW’s Maureen O’Rourke on the need to defend detainees

LAW Dean Maureen O’Rourke says defending unpopular clients or beliefs is at the core of the American legal system. Photo courtesy of LAW

Last week, a Pentagon official drew fire from the legal community when he proposed a corporate boycott of the law firms representing detainees at the U.S. Naval Base at Guantanamo Bay. The remarks that Charles D. Stimson, deputy assistant secretary of defense for detainee affairs, made on Federal News Radio were condemned by the American Bar Association, the New York State Bar Association, and the chairman of the Senate Judiciary Committee.

On January 16, deans from more than 100 U.S. law schools signed a letter denouncing Stimson’s comments as “contrary to the basic tenets of American law.” Maureen O’Rourke, dean of Boston University’s School of Law, was one of them. She discussed her involvement and the situation’s historical precedent with BU Today.

BU Today: Why did you feel it was necessary to speak out against Stimson’s remarks?
Because it is so important that we do not lose the best of what it means to be an American in pursuing the war on terror. I think we all understand that we are in difficult and trying times and that we are still struggling to find the right balance between security and freedom. But what an irony it would be if the price of winning the war on terror were to be our own constitutional values. By providing the detainees with the most effective defense, we both reinforce our own long-standing traditions and values and show the world that we believe in the integrity of our justice system.

What’s your response to this situation as an attorney? As an educator?
The responsibility to speak out is enhanced for attorneys as well as educators. Defending those who cannot afford an attorney — including those accused of heinous actions — is part of a lawyer’s professional obligation. We certainly teach our students this, and it would be hypocritical of us to stand silently by simply because we don’t like the defendants. Equal justice under the law should be more than just a catchy slogan.

Are there precedents for this — people denied representation because of their beliefs or people given representation despite controversial status or actions?
Everyone is assured representation under our system of justice. If a defendant cannot afford to hire an attorney, the court will appoint one to defend him. The American Bar Association’s model rules of professional conduct specifically state that a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities. This rule helps encourage lawyers to defend clients even when they disagree with the client’s views or find the actions of the client repugnant.

There are many instances of unpopular or controversial defendants receiving representation. I think Dean John Garvey of Boston College Law School gave a great example in Tuesday’s Boston Globe, when he mentioned John Adams’ representation of the British soldiers accused of shooting Americans at the Boston Massacre. And our history since then is one of providing representation to those who could not otherwise obtain it.

The American Civil Liberties Union often defends the right to free speech no matter how unpopular or offensive the speech itself may be. Lawyers represented defendants accused of the assassinations of Martin Luther King, Jr., and Robert Kennedy. Lawyers have also defended gruesome murderers such as cannibal Jeffrey Dahmer, cold-blooded killers such as Leopold and Loeb, serial killers such as David Berkowitz (“Son of Sam”), and career criminals such as Charles Manson.

In a very real sense, criminal lawyers are not just defending the person accused of a crime; they are assuring that our system of justice works properly by ensuring that the state or federal government meets its burden of proof when bringing charges against a defendant. This ensures that everyone’s rights under the Constitution are safeguarded.
If a boycott like the one proposed by Stimson took place, what would it mean for our legal system?
It would be a serious blow to the system and its core values. I know that lawyers are not the most popular group. And we always hear the phrase from Shakespeare “The first thing we do — let’s kill all the lawyers.” But what everyone forgets is the context — in the play, the reason for killing all the lawyers is that only then could evil triumph. Lawyers then stood in the way of “knaves and villains.” In our time, lawyers have helped to bring down barriers to equality and to safeguard fundamental freedoms. We should have enough confidence in our system of justice to provide an effective defense to even the most hardened defendants.

Should Stimson be censured by the Pentagon or the White House?

If he intended to state official administration policy, then it would seem that some remonstration would be appropriate. If he spoke as a private citizen, then the same First Amendment rights that protect me in criticizing the comments protect his right to make them. And that is how it should be!

Jessica Ullian can be reached at jullian@bu.edu.

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