To The Readers Of The Metropolitan Corporate Counsel :
"Can We Be Silent?"
Those were Robert Drinan's words in 1973, when he was the first congressman to call for the impeachment of President Nixon, not over Watergate but for the secret bombing in Cambodia.
Father Drinan died in January. His willingness to question the exercise of government power is an example as relevant now as it was over 30 years ago. Yet even today lawyers who take up the causes of the unpopular suffer the derision of those who confuse political debate with disloyalty, the preservation of individual rights with disrespect for the public's protectors. When this occurs, lawyers and bar associations cannot be silent. For the protection of their rights, the powerless in our society depend on the willingness of lawyers to represent them without compensation.
We live in a time when our government claims the unilateral power to detain people it calls enemy combatants. It has established a system of military tribunals which contemplates the use of evidence derived by coercion and proceedings in which the accused may not know the evidence against him.
The political process may fail to test these assertions of government power when they are part of an effort to protect society from external threats such as terrorist activities. Lawyers who represent the objects of these tactics must test them.
The idea that these activities should be encouraged in our legal system is not new. Many have recalled Drinan's quotation of Hammurabi: "The purpose of the law is to protect the powerless from the powerful." Yet lawyers who represent the indigent and unpopular still suffer criticism, not praise, for their work. We must speak out strongly when these attacks take place.
And attacks they are. In 2006, 43 years after Gideon, we heard one candidate in our gubernatorial campaign say of another's defense efforts: "While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" and "What kind of person defends a brutal rapist?" At the national level, as if the current military tribunal procedures were perfectly conventional, a Defense Department official recently argued that corporations should reconsider their employment of law firms that represent Guantanamo detainees.
When I speak to new lawyers at their bar admission ceremony, I remind them of the ethical responsibilities they assume with the lawyers' oath, and that they may face difficult choices in the course of their career, as John Adams did when he agreed to represent the British soldiers involved in the Boston Massacre. We may look back at the example of Adams, or of Boston lawyer Joseph Welch, who stood against the demagoguery of McCarthyism in the 1950s, as the kind of test a lawyer is unlikely to face again. But when I ask the new lawyers, "Would you agree to represent someone accused of being involved in terrorist activities," I know that any one of us may flinch at such a choice in this political climate.
All the more reason to applaud the efforts of those who represent Guantanamo detainees, death row inmates, or individuals accused of the most heinous crimes. As Massachusetts Bar Association President Mark Mason and I wrote last fall, they are the essential defenders of our liberties.