.A. Lewis on Gideon (cont)

The positive developments I have mentioned, and others, lead me to hope that in years ahead we shall come closer to achieving the dream of Gideon. They refresh the faith that I mentioned at the start of this talk—my belief in this country’s capacity for civilizing change.

But on the issue of the right to counsel, there is one troubling—profoundly troubling—cloud on the legal horizon. In two cases now before the federal courts, Attorney General Ashcroft is asserting that President Bush has the power to detain any American citizen indefinitely, in solitary confinement, without a trial and without access to a lawyer. To do that, the President simply has to designate the detainee an “enemy combatant.” The detainee cannot effectively challenge that designation. A court may hold a habeas corpus proceeding, but the government need produce only its own assertions of evidence, not subject to cross-examination. “Some evidence” will suffice—that is, any evidence, however second-hand and unchecked. That is the claim being made by law officers of the United States.

This is not the first time that constitutional concerns have been pushed aside in time of war. Hardly so: It has happened again and again in our history. But I would not have believed that a United States Government would argue that an American can be held indefinitely, perhaps for the rest of his life, without being able to speak to a lawyer.

Two Americans have now been held in isolation for more than a year: Jose Padilla in a Navy brig in South Carolina, [and] Yaser Hamdi in a brig in Virginia. The U.S. Court of Appeals for the Fourth Circuit has upheld the Government’s right to detain Hamdi indefinitely without access to counsel. A federal judge in New York, Michael Mukasey ruled that counsel appointed to represent Padilla must be allowed to speak with him for the limited purpose of getting information to answer the Pentagon’s statement of reasons that he is an enemy combatant. The Government has taken that order to the Court of Appeals for the Second Circuit.

Ladies and gentlemen, I have gone outside the immediate subject of the Gideon case: lawyers for indigent criminal defendants. But I do not apologize for that. I could not discuss what it means to undergo a trial without the guiding hand of a competent lawyer and ignore the calculated denial of counsel in the enemy combatant cases. Not even in the case of the Nazi saboteurs in World War Two, who were tried by military tribunal, was counsel denied. The present Justice Department cites the Supreme Court decision in that case, Ex Parte Quirin, as precedent for its treatment of the alleged enemy combatants. But the saboteurs were given counsel: fully competent lawyers, one of whom, Kenneth Royall, was later Secretary of the Army. Indeed, the Nazi defendants at Nuremberg were all provided with counsel.

Now let me return to the Gideon case. I think we owe a final word to Clarence Earl Gideon. He was not a clear thinker, a man of the world, or least of all an easy person to deal with. He was a petty criminal, a habitual one, worn out beyond his years by a difficult life. But he knew what he wanted.

When the time came for his second trial, Gideon asked the American Civil Liberties Union to supply a lawyer for him. But when two A.C.L.U. lawyers appeared before the judge in Panama City, Florida, Gideon said he did not want them. The court reporter typed his statement in capital letters: “I DO NOT WANT THEM.” He wanted Fred Turner, a local lawyer, and that was a wise choice.

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