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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, December 06, 2005

Ramsey Clark - True Heroism

Ramsey Clark was Attorney General in the Lyndon Johnson Administration and, as a New York Times profile this morning details, he has spent the last 35 years serving as legal counsel for some of the most reviled and despicable figures on the planet, including Muammar el-Qaddafi, Slobodan Milosevic, Branch Davidian leader David Koresh, and Sheik Omar Abdel Rahman, who was convicted of participating in the 1993 bombing of the World Trade Center.

Clark, at the age of 77, is currently risking his life in order to represent Saddam Hussein for free in Hussein's criminal trial in Iraq. Clark's rationale for doing so is clear and noble:

All men, he said, deserved a fair trial, even history's worst criminals. "Suppose Hitler had survived," he said. "It seems to me that it would have been absolutely critical to give him a fair trial, to let him call witnesses and cross-examine the hell out of them." He added, "If you don't do that, historical truth will be distorted."

I'm far from a fan of Clark's political opinions, which are often inane and obsessively anti-American. But put those political views to the side. Here, Clark is risking his life in order to perform a service that is absolutely indispensable in promoting American objectives in Iraq -- namely, ensuring that Saddam Hussein receives a fair trial. Rather than praising Clark for these extreme risks and sacrifices, certain strident pro-war bloggers (including those who, most disgracefully, are lawyers and should especially know better, such as the dependably sneering Powerline warriors) are sitting in their houses behind their computers castigating Clark as some sort of anti-American coward and traitor.

Clark is risking his life by promoting American efforts to bring democracy to Iraq, while these blogger/lawyers risk nothing, ever -- and yet, to them, it is Clark who is the traitorous, despicable coward and they who are the powerful, chest-puffing heroes.

Now that all of our other pre-war justifications for the war have worked out somewhat poorly, the only thing we have left is that we are "liberating" the Iraqis from the bounds of tyranny and helping them to create a free society which guarantees due process and individual liberty. No more summary convictions or show trials or punishment without due process -- that's all the stuff from the authoritarian Saddam era which is being relegated to the "trash heap of history" and all that.

Given these goals, it is painfully obvious -- or at least it ought be -- that few things are more vitally important than ensuring that Saddam Hussein has a genuine, fair trial before he is convicted and punished. If we simply execute him after some sort of sham show trial, it will be even more difficult than it already is for us to claim that we are building a different, better Iraq -- or that we are there in order to bring democracy and respect for human rights. If we claim the right to simply execute people including Hussein without a fair trial, it's hard to see how we can claim, with a straight face, that we are engaged in something other than pure tyranny.

And, as all lawyers learn in their first year of law school (but some seem to forget), one of the most basic things that a fair trial requires is that the defendant have competent, zealous lawyers representing his interests and who are able to do things like present evidence, call witnesses, demand procedural safeguards, and undermine prosecutorial efforts to obtain a conviction. Only if a conviction can be obtained despite such barriers can the trial be said to be fair. A conviction in the absence of those impediments is the very definition of an authoritarian show trial.

There aren't very many people -- and there especially aren't very many credible lawyers -- who are currently willing to volunteer for the job of being Saddam Hussein's lawyer. Aside from the almost universal hatred it is sure to bring to the person in that role, it is also one of the more dangerous jobs a person can have, as demonstrated by the recent murders of two of the defense lawyers in that trial and the undoubtedly ongoing attempts to increase that number substantially.

All of this means that Ramsey Clark is risking his life to engage in a thankless and difficult task which is absolutely vital to the American war effort in Iraq and to American credibility both in that region and around the world. Whatever one might think of Clark's political opinions, this conduct on his part is the very definition of American heroism.

But sitting at home castigating, as usual, other people's bravery and patriotism, the boys over at Powerline announce that Clark is despicable. In a post entitled "Lawyers High and Low," John snarls:

Low would be Ramsey Clark, the lunatic lefty who has trafficked for forty years on the fact that Lyndon Johnson, in what Johnson described as his most appalling mistake, appointed him Attorney General. Clark has now showed up in Baghdad to volunteer his legal assitance (sic) to Saddam Hussein. Clark is one of those lefties who never met a dictator he didn't suck up to.

John's law firm partner, Scott, echoed John's disdain by claiming that Clark's "heart seems to go out to Saddam Hussein." Other vocal pro-war uber-patriots simply decree Clark to be "pathetic," and accuse him of having "contempt for this nation and its ideals."

Among many ironies, a glaring one is that the Powerline lawyers and others like them who smear Clark are smearing him for engaging in what has long been considered to be the highest service a lawyer can perform – pro bono services. The full Latin term is "pro bono publico," or "for the good of the public," and what it really refers to is the act of a lawyer representing clients not for his financial enrichment, but for some common good – such as, say, ensuring that Saddam Hussein has a fair trial.

The concept of pro bono work has become completely distorted, bastardized, and drained of any soul by the types of large corporate law firms for which at least 2 of the 3 Powerline boys labor. Law firm partners are driven by fear -- fear of offending and losing their corporate clients. As a result, they are petrified of representing exactly the type of clients (i.e., unpopular, controversial ones) who are most in need of pro bono services-- those who are ostracized and despised by the majority -- and for whom the concept of pro bono services was invented.

As a result, faced with regulatory requirements of performing pro bono work, most lawyers perform cursory, deliberately non-controversial work for mainstream, garden-variety charities, and then tout such uncontroversial work in their glossy firm brochures. While beneficial, a critical purpose of pro bono services– representing those most in need – becomes neglected.

The work Ramsey Clark is performing, at great risk and sacrifice, is in the highest and best tradition of pro bono work, and it is also of self-evidently great importance to the American war effort in Iraq. There are few things which could help the U.S. war effort right now more than a fair, vigorously contested trial of Saddam Hussein, both to serve as an example of what we mean by "American democracy and human rights" and as evidence of America’s real intentions in Iraq.

With this brave act standing alone, Ramsey Clark has done more to advance the U.S. cause in the Middle East than all of the self-praising, chest-beating posts written by his oh-so-patriotic, insult-hurling critics. While they play around on the Internet, an aged Clark is in Baghdad, with his life in ongoing jeopardy, in order to ensure that one of the most hated individuals on the planet, in one of the most dangerous places on the planet, gets a fair trial.

It is truly mind-boggling that his sacrifices, from which this country benefits greatly, provokes such scorn and snide character attacks, rather than the admiration and gratitude which it so plainly deserves.

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