It’s All So Confusing: What Is The Right Thing To Do?

I know it seems like just yesterday but Pro Bono has been a fixture of the JH Guide since May 1999.  Forty or so articles of slightly comical relief with an educational twist.

It has been my objective to write on controversial subjects from time to time without being particularly controversial.  Today I want to share some things I have been thinking about recently, which may be slightly different than the usual fare.  Perhaps some will think it controversial. But it comes from the heart.  I thought that on this remarkably unique and hopeful day of the year I would just get out of the way and let it rip.  So here we go.

September 11.  The day that forever changed what it feels like to be an American.  A day like none other in our history.  Our nation transfixed before the television screen, staring in disbelief, quickly turned to horror and grief. The day which robbed us of our innocence.  A day which rendered us vulnerable and mortal.   Just like the rest of the world.

It has been several months since America declared war on terrorism. Now we are entering a new phase.  In addition to the hunt for terrorists abroad and at home, we have also turned our focus to  suspected terrorists who have been captured, and to those we hope to capture soon.   How best to deal with them?

It is a question that has occupied our thoughts lately.  There have been numerous articles and editorials on the subject.  The issue has been aired repeatedly on television and on radio talk shows.

It seems we are reminded from time to time in mysterious ways that democracy has its complications, and one very big price tag.  Osama bin Laden has brought to the forefront a dilemma that confronts America: what price are we prepared to pay for our freedom?

We now have talk about secret military tribunals, denial of the right to appeal a conviction, use of classified information which the accused does not have the right to review or refute, conviction by a majority of two military judges, suspension of the writ of habeus corpus, whatever that means, and a host of other privileges we, as Americans, never thought we would be debating.

During the on-going media and political debate about our civil liberties, I have had a hard time ferreting out what is true and what is not; what is real and what is not; what should concern me and what should not.

I recognize that the secret military tribunal issue has been directed at “non-citizens”.  So why am I, as a U.S. citizen, more than a little nervous about the idea?

When I began practicing law in Jackson in the mid-1970s I  became Teton County’s first public defender. (Please hold your applause.)  Although crime in our little shangri-la in 1975 was  something a big city cop would have considered laughable, we did have our occasional murderer, manslaughterer,  armed robber, and otherwise despicable human being.

So from time to time it became my job to represent some of the dregs of humanity, in the name of justice.  As a criminal defense lawyer it is an awesome responsibility to have the freedom of another human being riding on one’s shoulders.  It is also an eye-opening experience watching the State, with what appears to be limitless financial and man-power resources, gear up for its task.

The great equalizer in our American jurisprudence system, the mechanism by which each of us is assured a fair trial and not simply crushed by the sheer size and force of the State, is the series of rights guaranteed to each person accused by the government of wrong-doing.  The presumption of innocence, the right to a trial by a jury of one’s peers, the right to be confronted by one’s accusers, the requirement that the State prove guilt beyond a reasonable doubt, the right to a public trial.

These are not mere phrases we learn in school.  These are living, breathing principles, fundamental human rights that separate our system of justice from the punitive and arbitrary systems of many other nations.  These principles are what help assure to each of us the right to live in freedom.

Periodically over the years I have been asked by friends or acquaintances how it is I can in good conscience represent someone who is charged with a crime, particularly a crime that may have a nasty ring to it.  My response has always been that each of us has certain fundamental rights, the rights I have just described, rights that must be preserved in order that every individual may live in freedom, that we as a people may live together as a free nation.

Invariably, before I get to the part about living together as a free nation, their eyes have glazed over and they are wishing they had never asked the question.

For me, it is the same feeling when we talk about the issue of secret military tribunals and the relaxing or skirting of fundamental human rights in this one instance, in dealing with suspected terrorists.

Although none of my family or friends was hurt in the terrorist attack on September 11, I have been profoundly affected by the events of that day as though all of the dead and injured were my family.  And they are my family. I mourned their loss that day; I continue to feel the loss today.

There is rarely a 48 hour period which passes lately in which I do not finding myself wiping back tears, or feeling vulnerable, or angry. Last week I watched my 12 year old daughter and her classmates at the Middle School-High School Christmas band concert.  The last song they played, a surprise, was God Bless America.  Everyone in the auditorium was on their feet, hand over heart, singing together, watching and listening to the children bang out this patriotic old relic.  I silently prayed that no one was looking at me, as tears were streaming every which way on my face and I was hard at work holding back the sobs.

There is no silver lining in this horrible, hateful attack on America.  It is just a brutal wake up call to all of us that we live in a dangerous, hurtful world, and that evil lurks all around us.

To me, it is all the more reason to work doubly hard at protecting and preserving the values of this incredible country we live in, and the standards which are the basis for our individual and collective freedom.  Now is not the time to shrink from the task.  Democracy comes at a very dear price. And it is worth every penny.

I wish for each of us that we enjoy a year filled with all the things we deserve: peace, happiness, health and love.

Bye for now.