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January 01, 2006

Human Rights Hero: In Defense of the Despised—Lawyers Fighting for Justice under Fire

by Jim Brosnahan and Wilson Adam Schooley

There is nothing unique about representing despised clients. Lawyers of all kinds do it every day. But it is right to celebrate lawyers whose clients inflame a whole population. The lawyer is not the client, only the client’s voice, as the early Greeks believed. But this rationale is an idea, while a mob is corporeal, raging, and indifferent to facts. The mob’s rationale is simple. Something evil has happened, the defendant is part of it, the world must be purged of them both.

In our country, “experts” go on television and discuss cases they know little about. Politicians form a chorus of negative comments about defendants. Defense lawyers must not see themselves as either pariahs or saviors, just as lawyers representing clients. At the heart of this madness, the case must be presented. It is right to encourage those who step into this pressured vortex. They are the heart of lawyerly instinct. They question facts, contest the prosecution, demand justice. The judge may be hostile, the client difficult, and the lawyers’ lives disrupted. But as the lawyers walk out of court and face the cameras, they have a unique view of American fairness. With those forces arrayed against them, they can look into the camera and insist on justice. They must follow many brave advocates: Darrow, Erskine, Cicero, Demosthenes. There is a small place of honor reserved in the soul of the legal profession, indeed in Western civilization, for those who speak for the despised. Albeit recognition may never come, the lawyers have done what they should do. When tempers cool, Americans have always understood the importance of justice as we do. —JB

Justice is perhaps never more purely served nor embodied than when a lawyer defends the despised. Jim Brosnahan is a fitting figure to express that truth. He waded into just such a battle, in defense of John Walker Lindh, sentenced to twenty years for fighting for the Taliban.

Today, we find ourselves in times certain to test that truth—times when our land of liberty detains “enemy combatants” without process or counsel, when we see torture of our Iraqi prisoners, when stories circulate of an international gulag of secret CIA “black sites” where prisoners are held indefinitely, when we joke that habeas corpus is now defined as “ n. Archaic (Lat.) a legal term no longer in use.” In these times, we are sorely in need of legal heroes to defend the despised. Thankfully, we have too many to list in this space. So we celebrate the archetype, to represent them all.

Here are five examples, standing in for all their courageous brothers and sisters of the bar. The U.S. Supreme Court recently issued a trio of decisions finally allowing prisoners at Guantanamo access to our courts, and these lawyers are at the forefront of that effort:

John Gibbons. Gibbons, a seventy-nine-year-old retired Nixon appointee to the bench and law firm partner, argued the lead case before the Court challenging the government’s handling of Guantanamo detainees, resulting in the landmark ruling that those detainees have access to U.S. courts.

Frank Dunham. U.S. citizen Yaser Hamdi was in custody for three years without charges, process, or access to counsel. Public defender Dunham read about him, filed a habeas writ on his behalf, and litigated the case for two years before meeting him, leading to the decision limiting the president’s power to indefinitely hold enemy combatants (“A state of war is not a blank check for the president.”) and, finally, to Hamdi’s release.

Donna Newman and Jennifer Martinez. Jose Padilla was the first American citizen arrested and held without charges inside this country as an “enemy combatant.” Newman was appointed his counsel and, working with Stanford Law Professor Martinez, has steadfastly sought not publicity, but justice. As his case again reached the Court, the government finally indicted Padilla and will argue that his contentions about lack of process are now irrelevant.

Neal Katyal. Georgetown Law Professor Katyal is the lead attorney challenging the Guantanamo military tribunals as in violation of the Code of Military Justice, the Geneva Convention, and the Constitution. —WAS


As published in Human Rights, Winter 2006, Volume 33, Number 1, pp.25-26.



Jim Brosnahan is a senior partner in the San Francisco office of Morrison Foerster. He defended John Walker Lindh, one of two American citizens captured in Afghanistan while fighting for the Taliban. Wilson Adam Schooley is on the editorial board of Human Rights and an adjunct law professor, writer, actor, photographer, and attorney practicing with the Schooley Law Group in La Mesa, California