Upholding Equal Justice for All
By Patrick J. Kelly

On September 11, 2001, our nation suffered the worst act of terrorism in its history. Without provocation or warning, Al-Qaeda attacked two landmarks of American power and prestige. When a nation, particularly one as powerful and proud as the United States, is attacked, it is only natural that a strong reaction follows. The immediate reaction provided some of the finest moments in American history. The images of firefighters racing into the Twin Towers in an effort to save people are indelibly imprinted in our memories. Similarly, the coming together of the Congress, both Democrats and Republicans, in the days following September 11 inspired in the public the belief that this was a time for healing and working together.

Even as America drew inspiration from these acts of courage and selflessness, a feeling of paranoia crept into the American psyche. Terrorism was a force to be defeated at all costs. The ensuing "War on Terror" has sparked decisions and comments that appear to hedge America's commitment to traditional values such as the rule of law, and, most importantly, the fundamental principle that everyone is entitled to a legal defense.

Question of Values

British Prime Minister Tony Blair stated that the war on terrorism must be waged on the winning of values. Terrorism and extremism pursue their doctrine without regard to boundaries or frontiers. That is why we must be cognizant of the opinions of other nations and listen to our allies. Terrorism gathers its strength from the shadows of hatred, divisiveness, and senseless reaction; as such it is built on the perversion of ideals and bent on the destruction of freedom and liberties.

The foundation of American democracy is the rule of law. All societies face issues of hatred and divisiveness, and this is certainly not the first time that the United States has come face to face with these problems. However, access to justice has been an ongoing goal of the American judicial system and people have been provided their day in court.

One of the core values of the rule of law is the protection of human rights. The guardian of human rights is a stable court system, replete with a fair and independent judiciary and independent defense lawyers, all striving to preserve and promote human dignity and security. History dictates that countries lacking a stable legal and judicial system cannot peacefully resolve disputes or protect the basic rights of their citizens. Historically, countries with populations that cannot trust the judicial system are a breeding ground for violence and conflict.

Defending Detainees

With that background, the deputy assistant secretary of defense for detainee affairs, Cully Stimson, in January attacked law firms for providing pro bono representation to detainees being held in Guantanamo Bay. He said, in a Washington D.C. radio interview, that it was shocking that law firms were providing free legal assistance to detainees in federal habeas corpus proceedings. He further conjectured that "when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists and representing reputable firms." It is disconcerting to have the deputy assistant secretary of defense for detainee affairs imply that law firms should have to choose between supporting the very principles that America is founded upon and their livelihood. There may have existed an immediate need for Guantanamo Bay in the wake of September 11; however, five years without access to the rule of law is not a proportional response. No act of terror justifies a reaction that destroys the fundamental values of liberty, justice and equality by undermining the rule of law.

Karen Mathis, the ABA president, framed the issue this way "It's exactly in times like these, when fear of terrorism remains high, that we must do our utmost to ensure that no one is falsely imprisoned. It is easy, but dangerous, to create classes of people for whom there is no accountable system of justice." The American people understand that in representing individuals accused of being enemies of our nation, lawyers are rejecting the tenets of terrorism.

There is a movement among lawyers to urge Congress to restore the right of habeas corpus to the prisoners at Guantanamo. The habeas corpus review by the federal courts is one of the pillars of our constitutional system. In championing our values we eliminate mistrust and suspicion and stifle the fires of the cause of terrorists.

Guantanamo by the Numbers

759 Approximate number of suspects in the "war on terror" that have been detained at Guantanamo

350 Approximate number of these suspects who had been released or transferred to custody of their native countries as of December 2006.

40 Number of nations whose citizens have been held at Guantanamo

395 Approximate number of detainees remaining at Guantanamo as of December 17, 2006.

Unknown Number of attorneys engaged in representing detainees at Guantanamo

Sources: washingtonpost.com; GlobalSecurity.org

PATRICK J. KELLY is president of the Minnesota State Bar Association, a founding partner in the St. Paul law firm Kelly & Fawcett, and a recognized Minnesota SuperLawyer. He practices in areas of municipal law, labor and employment law and litigation, real estate, and administrative hearings.