What’s the Most Fundamental Difference Between a Free, Civilized Society, and an Unfree, Uncivilized One?

What’s the Most Fundamental Difference Between a Free, Civilized Society, and an Unfree, Uncivilized One?

The right to fair representation.

When I was in law school, I decided I did not want to become a defense attorney.  I decided that I did not want to be in the position of feeling comfortable defending some defendants, but not others. At the same time, I realized that while I had that right, I thanked God that it was a personal decision, and not a societal one.

If it becomes a societal one, we lose what sets us apart from non free, non civilized countries. We lose what makes us a true society and country, based upon laws, and justice. We lose what sets us apart from most of the countries we dislike, and even loathe.  We lose the glue of justice that defines our Liberty.  The liberty of all of us — becomes subject to the dictates and whim of popular opinion or perception.

This might be the most important founding principle of this country.

It might appear easy, in “obvious” cases.  Such as, for instance OJ Simpson, who just might well be, short of a non coerced, completely credible confession with supporting details and proof, the most guilty defendant in modern history either acquitted or convicted.  Or, such as, a terrorist who we just “know” is guilty.

But our country is founded upon the very lucid and critical idea that there simply is nowhere to draw this line between “as obvious a fact as the sun rising in the East” versus “we think it’s as obvious a fact as the sun rising in the East, but we’re wrong.”  And thus upon the notion that a right to fair representation and trial is a fundamental and inherent liberty for all.

Popular opinion does not produce this.  Often, by its very nature, popular opinion produces just the opposite. It is precisely for the reason that by definition we can’t know which times are which, that our system of Justice, our basis for fairness, has preserved this right as perhaps our most basic liberty amongst — and from — our fellow man.

As an example of how much rhetoric is getting out of control in America (here is another, somewhat different type of example), Liz Cheney’s group, “Keep America Safe,” in an ad has targeted the attorneys at the DOJ who have done defense work for loathed defendants, and is trying to make them scapegoats; even going so far as to imply, appealing to society’s most base, and worst, emotions and ignorances, that they are “terrorist sympathizers.”  Those people, who perform the most basic and essential function — unpalatable as it is it forms the backbone of our free and civilized society — are being scapegoated and targeted.

Even some conservatives are condemning the ad. Many more, should.

Paul Mirengoff, who writes for an extremely conservative website (Powerline), essentially makes the case when he notes:

I would rather give up my law license than represent Osama bin Laden’s driver….However, I would not deserve to have a law license if my personal views on this matter caused me to launch vicious, unfounded attacks on lawyers who exercise their right to represent despicable clients.

I would only change the last sentence to read “on lawyers who help exercise our Justice’ system’s most basic need, to ensure that everyone have the right to legitimate representation.”

Sam Stein, of the Huffington Post, has a story on it, even suggesting Mirengoff compared this to McCarthyism.  Mirengoff clarifies, a bit, on his blog as follows:

In response to Stein’s questions asking me to compare the video to “McCarthyism,” I said the implication that the DOJ lawyers share al Qaeda’s values is almost certainly false. I also said that some of McCarthy’s assertions were true and others were false (or unfounded, I’m not sure which word I used).

That, if I recall correctly, was the extent of my willingness to compare the video to “McCarthyism.” I don’t think I said or implied that the video is comparable to or worse than the totality of what goes by the name of McCarthyism or to the “crusades” launched by Sen. McCarthy.

While Mirengoff according to his follow up did not compare this to McCarthyism, I think there troubling, parallels. I loathe communism, but to loathe and attack people themselves for their personal political views is absolutely un-American. To call them out and go on a witchhunt for them perhaps represents one of the most fundamental threats to a vibrantly functioning, free, sovereign, representative democracy.  While Texas textbooks may be trying to slightly re-write history with respect to McCarthy, the ironic thing is that the seeming “American” sentiment against communism, taken to extreme and hysterical ends, caused one of the more un-American episodes in our history.

Simply suggesting that Justice Department officials are terrorist sympathizers because of their pro bono working upholding perhaps the most basic element of our system of justice  is of course not yet on par with McCarthyism.

But ultimately, in concept, it is in some ways perhaps worse.  Defending those whom many might not want to defend is central to our system of justice, while Communism is a radical political theory that is very different from our system here in the U.S.  But just like McCarthyism (which also led to difficulties finding jobs and even fundamental rights being taken away), such scapegoating also appeals to our fears, apprehensions, prejudices, biases, and worst if unrecognized emotions. It is the enemy from within to a just and good society.

Unfortunately, simplistically appealing and emotionally connecting sound bites can take on far more life and superficial attractiveness than key underlying principles of freedom, but it is the latter that keep us who we are, and make us different from , the countries we loathe.

Defending the accused is central to our entire Justice system.  To start to impugn the integrity and character of those who do — let alone hint, suggest, or assert that they have ‘terrorist sympathies” for so doing —  is one very very short step away from attacking and undermining the very core of a justice system that most notably separates us from non civilized, and non free societies the world over.

Along these lines, and on a sour note that is just a few shades down from these same attack ads themselves, another of the three main (and prominent) Powerline attorney bloggers, in the same post as Mirengoff, suggests:

One wonders: do these firms, or these lawyers, normally make a practice of volunteering to defend criminal defendants? (These detainees were not criminal defendants, for the most part, but the analogy is nevertheless apt.) My guess is that they do not. What, exactly, drew them to the cause of the terrorist detainees? Was it a humanitarian impulse to defend the friendless? Or were the country’s wealthiest and best-connected law firms lining up for the privilege of taking on the terrorists’ cases? Were the lawyers who volunteered to represent terrorists driven by ideology? That is to say, were they part of that large segment of the establishment that tried to undermine the foreign and national security policies of the Bush administration? If so, what ideology do these individuals now bring to the Department of Justice? And what roles are they playing within DOJ?

This is in effect an end run around accusing them directly, but effects similar ends, for the same reasons that our system is designed the way it is in the first place. If our views become defined by the actions, character, or views of those we have defended, the system similarly can not function, and its most basic principle, essentially, is enervated and ultimately destroyed.

It’s not even relevant to consider that there are terrorist detainees who were innocent. But just imagine if there was another, larger, more powerful country than the United States, that swept up Americans accused of heinous acts, some innocent, and either punished them without representation, or did so in effect because any citizen serving that necessary function would then become bastardized in their countrymen’s eyes.

What would we think of such countries?

With respect to every country that does follow such a pattern, we feel very poorly of them. And for good reason.  Yet their thinking is no different than where we, if we are not careful, could go to as well, for the same reasons that are routinely being expressed in rhetoric in this country today.  And we would be as bad as them. Perhaps, given our proud traditions of liberty and justice for all, our Founding Fathers vision, our founding documents, and history as the greatest nation on earth, we would be worse.

We cause al-Qaeda to lose by minimizing the significance of what al-Qaeda does, by working feverishly to eradicate that and sister organizations, and by continuing to marginalize those involved or would wish to get involved, not as warriors, enemy combatants, soldiers in a war, people captured on a “battlefield,” all of which convey (at least abroad) the slightest hint of legitimacy, but as the lowly common, depraved, murderous criminals that they are.  We cause al-Qaeda to win by in return abandoning our own set of principles, allowing them to change who we are, much for the worse.