Even After Paris

Posted in: Criminal Law

My colleagues at Cornell, both in the law school and the College of Arts & Sciences, often invite me to speak in their classes about my work on behalf of alleged terrorists. They are especially curious about my defense of Abu Zubaydah, who was the first person held in the CIA “enhanced interrogation program.” Zubaydah is the off-stage presence behind the infamous torture memo, which was drafted so CIA interrogators could deploy their particular skills upon him with impunity. His torture is described in great detail in the Executive Summary of the Senate Torture Report.

Last week, I spoke to a group of freshmen. Most freshmen at Cornell were toddlers on 9/11. They have no personal memory of the attacks; everything they know, they learned from others—which is to say, they know only the social construction of 9/11. As importantly, they have no memory of life before 9/11. Their normal is a post-9/11 world, where universal surveillance, indefinite detention without trial, and torture are accepted with indifference.

Students (and faculty) always seem to be curious about the same things. How did I get involved in this stuff? (A long story.) Have I been threatened or harassed because of my work? (No, but I occasionally get angry emails, the most offensive of which accuse me of being a bad Jew.) Who pays me? (Nobody.) But last week, a student asked me a different question.

How do you represent someone that everyone hates? Today, the people who follow these things closely accept—and the Senate has confirmed—that Zubaydah was not remotely the person they thought he was when they were torturing him. But what if he were? How can you possibly represent that man? I have tried to answer this question before, but in light of the unspeakable barbarity in Paris, I thought my answer might be worth updating.

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The conventional response to this question pays homage to an impersonal system. The lawyer does not defend the person so much as the law. There is much to commend this view, but I find it unsatisfactory. For one thing, it reduces the advocate’s role to certifier-in-chief; she exists to make sure the state ticks all the right boxes. Worse, it deliberately makes the client an afterthought—nothing more than a vessel containing the rights bestowed upon him by the state. I have always wanted to believe a person is more than the sum of his legal rights.

A related answer, better than the first but still incomplete, envisions the lawyer as a bulwark against national hysteria. As I have elsewhere described, the American justice system thrives on the creation of symbolic demons, the “worst of the worst” that we periodically discover and deploy to justify repressive policies.

Demonization is always the same. It begins with a legitimate cause for national concern. There was, for instance, a crack epidemic in the 80s and 90s; there were Soviet spies embedded in American government during the McCarthy era; there are transnational terrorists, as Paris demonstrates so convincingly. Demons, in other words, are not created from whole cloth.

But reality is quickly overtaken by hyperbole. The threat, we are told, is more serious than—and different from—any we have encountered before. Nothing in our past could have prepared us for what we face today; nothing in our future will matter unless we rise today to defeat it.

The public is always prepared to believe this rhetoric. And not just believe it, but act on it—to participate in the demonization ritual, egged on by a compliant media and a ready supply of self-proclaimed patriots. The process is as predictable as it is inevitable. No mast and rope has ever restrained us from that Siren.

The demon we create—rather than the problem we confront—thus becomes the basis for our policy. Inevitably, the hunt for these demons sweeps too broadly, entangling many who are innocent to capture the few who are not.

Here, we are told, is where the advocate can make a difference. She can demonstrate to a skeptical world that the state has made a mistake. Yet the argument is still unsatisfactory, since it implies that counsel’s only role is to make sure the state got the right guy. In that respect, it fetishizes process, which is the only tool we have that purports to separate wheat from chaff. But I do not want to be part of a process that declares a person beyond protection once the state has satisfied itself that he is the demon for which the hunt was intended.

And that gets to the nub of the matter. It is not enough for an advocate to make sure the state follows the rules and gets the right guy—at least, it is not enough for me. Instead, the challenge is simply this: to prove that there are no demons. Each of us may claim the dignity shared by all, regardless of the rights granted by a fickle state, independent of any process meant to separate good from bad, and notwithstanding anything we may have done.

Dignity is not the same as mercy; it is emphatically not the same as forgiveness. It does not deprive the state of the right to punish wrongdoers. Instead, it is the profound ethical insistence that there is a point below which we will not descend, and beyond which we may not pass. It is the point at which humanity declares, “No more,” for beyond that point we are no longer human.

There are times—and this is one—when claims about the universality of dignity are particularly unwelcome. That of course is when they matter most. Insisting upon humanity even when society is most determined to deny it—even after Paris—is an advocate’s highest calling.