This article originally appeared in the Cross-Examiner, the Official Newspaper of Seton Hall Law
by Sean Camoni
On March 5, 1770, five men fell dead on a snowy Boston street, shot by British soldiers in what would come to be known as the Boston Massacre. Paul Revere depicted the scene as a “slaughter of the innocents,” and Samuel Adams distributed the print, calling the killings a “bloody butchery,” according to historian David McCullough. When the call went out for an attorney to represent the eight soldiers and their captain, no one answered. A thirty-four year old lawyer, still building a reputation, was asked to defend the hated “Lobster-backs.” Despite expectation of public disapproval, he accepted, believing that “no man in a free country should be denied the right to counsel and a fair trial.” John Adams would later reveal that he lost half his law practice for taking the case, but he also called it “one of the best pieces of service I ever rendered to my country.”
Two hundred and forty years later, this valuable service still induces public attack. Liz Cheney’s political organization, Keep America Safe, has launched an ad calling into question the “values” of certain lawyers in the Justice Department who have previously represented detainees at Guantanamo Bay. Calling them the “Al Queda Seven,” she pretended that their identities were being hidden even though their names are available on public court documents. A Keep America Safe television advertisement argues that attorneys for Guantanamo detainees cannot be trusted. Former Bush speechwriter Marc Thiessen calls the John Adams comparison “wholly inaccurate” and says that the Guantanamo habeas lawyers are damaging national security. He claims that the “terrorists” the lawyers represent have “gone back to the fight and killed American and allied forces.”
These attacks on habeas lawyers have been roundly condemned by many voices across the political spectrum. Senator Lindsey Graham (R-SC), a former U.S. Navy JAG attorney, said, “A defense attorney who is making the government do their job regardless of the nature of the case is making this whole country a better place.”
Seton Hall Law School’s Center for Policy & Research analyzed U.S. government documents, finding that 72% of Guantanamo detainees were not even suspected of a hostile act. Only 11% of all detainees were captured by the U.S. or coalition forces, while 86% were handed over by Afghan or Pakistani forces. Many were captured by bounty hunters for a cash payment and held solely on their captors’ accusations. The government has shown evidence for only a small percentage of detainees that they are dangerous. Very few can even be linked to Al Queda.
The John Adams comparison is far more apt than Mr. Thiessen would like to admit. Adams not only ensured the soldiers a fair trial, he showed that most of the soldiers acted in self-defense. The captain and six soldiers were acquitted, while two others were convicted and discharged from the army with their thumbs branded. Due process for Guantanamo detainees similarly serves America’s best interest. Upon further investigation most of these men are not “the terrorist masterminds” they have been publicly branded. The Boston case demonstrates that without trials, truth fails, and fear makes mockery of our principles.
Further, according to Yale Law Professor Akhil Reed Amar, patriots in Boston “insisted that fair trials could and should be held in Boston.” The juries that acquitted the Redcoats were all Boston locals, in trials that were a testament to “republican freedom and individual fairness.” In fact, when Parliament enacted a law afterward to provide for military trials of British soldiers in England charged with murder in America, Americans protested. The Declaration of Independence derided this Act as offering only a “mock Trial.”
On the committee that drafted the Declaration was a certain Boston lawyer who knew the value of a full and fair trial in a free country.