A Defense of Shared Humanity: Criminal Justice and National Security

Posted in: Criminal Law

I write about what I know, which explains why my columns so often concern either the criminal justice system or the national security state. That’s where I have spent my entire career—first as a criminal defense investigator, later as a capital defense and civil rights lawyer, and more recently as an academic. I was lead counsel in Rasul v. Bush, involving detentions at Guantanamo, and now represent Abu Zubaydah, the first person to have his interrogation “enhanced” by the CIA and the only person subjected to all the various “enhancements.” I am also working on a book about criminal justice reform.

But I have generally not written about the two worlds together, though many have suggested I should. They point out, quite rightly, that very few people are intimately familiar with both spheres. As a result, much that is written tends to be about one world or the other, which creates the mistaken impression that in a land of Venn Diagrams, the two occupy completely separate spaces. They don’t. In fact, at the level that matters most, the two worlds are united by the same pernicious impulse—the idea that we may cast some beyond humanity’s pale.

I know of only two other people who, like me, have spent an entire career moving back and forth between criminal defense and national security. Both are dear friends. The first is Clive Stafford Smith, who now lives in Dorset, England and works with Reprieve, a British NGO. Along with Michael Ratner and Steven Watt at the Center for Constitutional Rights, Clive was my co-counsel in Rasul v. Bush, the case that established the right of judicial review for prisoners at Guantanamo. Clive and I were the first lawyers to make the jump from criminal defense to national security. After Rasul, he went on to represent a number of other Guantanamo prisoners and has more recently extended his national security work to cases around the world.

The second is Denny LeBoeuf, who is the director of the John Adams Project at the ACLU, which provides legal assistance to the men charged in the military commission with crimes that might be punishable by death. For many years, Denny has been one of the lawyers for Khalid Sheikh Mohammad.

All three of us are longtime death penalty lawyers. We cut our teeth defending men and women charged with or convicted of capital crimes in the south. Clive did most of his work in Mississippi. Denny focused on Louisiana. I spent most of my time in Texas. Collectively, I imagine we have 70 years of capital experience and have been involved in hundreds of capital cases.

If you have read this far, perhaps you expect me now to write that the men and women we defended were all good and decent people, wrongly accused and convicted. No. Some of the people I represented committed acts of unspeakable violence and I know the same is true for Clive and Denny. Or perhaps you think I will denigrate or discount the suffering of the victims. No. I have never shrunk from the extraordinary human toll that some of my clients have inflicted. In the course of my career, I have spoken with countless family members whose lives were forever shattered by these clients. I can never know their pain, but I grieve at their loss, as do all who share the feelings of a common humanity.

But a career spent representing the people that society wants to kill has taught me the lesson learned by all who defend the condemned. There are no monsters, and no human can be reduced to the worst thing they have done. A man is infinitely more complex than the shots he fired and the pain he caused.

He has a past that stretches deep into generations—a past that poured into his veins and gouged into his soul. The poverty he lived, the brutality he knew, the madness he endured: All of it helped to make him who he is, and who he was that fateful day. Rarely does it excuse, but always it explains. Always it explains. It is the task of every death penalty lawyer to excavate and recount the past, even though many do not want to hear it. In fact, we tell it precisely for those who have turned away, for the world should know who they kill before the poison brings his life to an end.

But like all of us, the condemned is much more than his past. He has a present that radiates outward from a cold cell to warm the heart of the mother who raised him, the brothers and sisters he grew beside, or the child he barely knew. It touches the men around him, who travel the same torturous path. More often than not, it transforms him, producing an insight and awareness he once may have lacked, a somber realization of the pain he caused and the harm he inflicted.

And he has a future, if we allow it. Not simply the future that can be measured in years, which is the future we all share. It is a future better measured in the near and distant lives he may touch and the memories those people may hold. Yes, it is the memory of the man who caused so much suffering, for that can never be forgotten, but also of the man who changed so much and became so different.

There is a reason Clive, Denny, and I were drawn intuitively to the defense of the nation’s newest demons. We did not have to adjust to a new reality. For us, it is the same world. In both spheres, our clients are the men and women so many others are quick to denounce and eager to forget. Criminal justice and national security trade in the morally bankrupt belief that so long as we have someone to loath, someone we can despise with all the venom our hearts can summon, the world will be a better place.

We stand opposed.

  • Zoe Wyse

    I couldn’t agree more. I think what you are doing is incredibly admirable. Finding a common humanity with others should be based on viewing the world with compassion and understanding, not finding a reason to exact vengeance.

    I am particularly impressed and heartened by your work with Guantanamo detainees. Every person deserves effective legal representation. No matter what someone has done or not done, we are all human and everyone is worthy of being treated with dignity and respect.