[Originally written in January, 2007]
What about lawyers representing terrorists? What should the other clients of such advocates do? Well, we have an advice from theU.S. on this matter.
Speaking about the major U.S. law firms that have helped represent detainees at Guantanamo Bay, this is what Cully Stimson, deputy assistant secretary of defense for detainee affairs in the U.S. had to say in a radio interview with Federal News Radio (the interview can be heard from here):
“I think, quite honestly, 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 or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
Observing that “MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way”, the Washington Post in a scathing editorial went on to say as under:
“But it’s offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It’s shocking that he would seemingly encourage the firms’ corporate clients to pressure them to drop this work. And it’s shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy atGuantanamo.”
Like the U.S., in Indiatoo, representation of an accused by an advocate is a basic principle of the criminal justice system. In fact, Article 22 of the Indian Constitution guarantees it as a fundamental right. Clause (1) of Article 22 declares as under:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” (emphasis is mine.)
In addition, Section 303 of the Criminal Procedure Code, 1973, which deals with the procedures to be followed during criminal trials inIndia, lays down this further statutory right of an accused:
“Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
Therefore, the right of an accused, irrespective of whether he is a terrorist or otherwise, to get represented by an advocate of his choice is guaranteed under the Indian laws as a fundamental right under the Constitution as well as a statutory right under the laws relating to criminal trials.
It is pertinent to recall that an advocate of the stature of Ram Jethmalani, who was earlier the Law Minister in the Government of India, and even as a sitting Member of Parliament (M.P.), had represented the terrorists involved in the Parliament attack case of India inspite of the fact that they were even alleged to have had links with Pakistan. So, a sitting Member of the Parliament (and a former Law Minister ofIndia) taking up the case of a terrorist who was alleged to be involved in an attack the Parliament itself! This signifies the extent to which the right of the accused to get represented by an advocate of his choice is guaranteed under the Indian Constitution and other laws.
Coming back to the issue of the aforesaid controversial statement of the U.S. deputy assistant secretary of defense, Cully Stimson, one of the lawyers representing such “terrorist” accused persons, Anant Raut (happens to be of Indian origin), an associate in the Washington office of Weil, Gotshal & Manges LLP, a New York-based, international firm with 1,100 lawyers, did file a rejoinder by writing an open letter to Cully Stimson. This open letter can be accessed from here.
While the spirit behind this open letter deserves to be appreciated, the language thereof appears to be more defensive. Anant Raut writes, “Mr. Stimson, I don’t defend “terrorists.” I’m representing five guys who were held or are being held in Guantánamo without ever being charged with a crime, some of them for nearly five years.”. It clearly shows Raut on defensive trying to explain that he is not representing terrorists.
And, look at this further extract from this open letter, “And, lest there be any doubt, Mr. Stimson, we are not receiving any money for this. My firm’s work is pro bono.”. An effort to again be on defensive to show that he (Anant Raut or his law firm) was acting pro bono and was not receiving any money or professional fee from those alleged “terrorists”?
Have a look at this too, “…If the bulk of the detainees are guilty of nothing but being in the wrong place at the wrong time, if there’s no evidence that some of them did the things of which the government has accused them, then it would mean that we locked innocent people in a hole for five years. It would mean not only that our government wrongfully imprisoned these men but that the rest of us stood idly by as they did it. …”. Again, an attempt to show that Anant Raut was defending only the innocent persons…!
What these extracts from the aforesaid open letter show? That the lawyer (Anant Raut) is not defending the terrorists, that he is not accepting any professional fee for defending them, that there might be some innocent persons in Guantánamo too. What would have happened if such persons were actually terrorists – alleged to have committed the actual terrorist attacks? Secondly, is it wrong to accept professional fee from such terrorists? Thirdly, what if such persons did not appear to be innocent – would lawyers have not taken their cases in theU.S.? Does it not show that lawyers in theU.S.are a bit defensive of taking a case of a person if he actually was a terrorist?
Well, I am leaving all these questions for the judgment of the readers. But, to me, it does appear that the lawyers in theU.S.are on the defensive for having taken up the cases of the so-called terrorists locked up in Guantánamo. And, I can appreciate that given the stigma that attaches with such a lawyer. Some lawyers do it pro bono, some do it for their personal convictions, some might be doing it as a professional duty as a lawyer, some might be doing it just for money! But yet, my intention is not to take the credit away from the lawyers taking up cases of the innocent people who might be just put behind bars branded as terrorists without evidence of any sort.
