Jonathan P. Baird

While it is not surprising that Attorney General Eric Holder’s decision to try the 9/11 suspects in the federal court in New York was heavily criticized, it was the right call. We try people in America. We do not create star chambers. Nor do we, generally speaking, disappear defendants into a gulag.
One of the worst aspects of the George W. Bush presidency was the indefinite detention of terrorism suspects for years with no legal recourse. It is widely recognized that, along with the guilty, many innocent people were swept up and held in Guantanamo and other black sites during the past decade.
Holding suspects indefinitely without access to counsel is contrary to our deepest legal traditions. The founders prominently inscribed both the right to a speedy, public trial and the right to counsel in our Constitution.
John Adams probably gave the clearest statement about those rights in his closing argument in his defense of the British soldiers accused of committing murder in the Boston Massacre. Adams argued that it is more important to the community that innocence should be protected than that guilt be punished. Adams famously stat-
ed:
“We find in the rules laid down by the greatest English judges, who have been the brightest of mankind, that we are to look upon it as more beneficial that many guilty persons should escape unpunished than one innocent person should suffer.”
Adams warned about the consequence of what happens when innocence is condemned, especially to die. Then it does not matter if a person behaved well or badly because, as he said, virtue is no security.
It is hard to imagine less sympathetic defendants than the 9/11 suspects, and I would guess the government has plenty of evidence of their guilt. I do not know if these defendants have counsel yet, but the idea of representing the 9/11 suspects made me think of the defense attorney Bill Kunstler, who passed away in 1995.
If Kunstler were alive today, I think he would be representing one of the 9/11 defendants. He never retreated from representing controversial clients. Kunstler was a fearless attorney. Abbie Hoffman once described him as having the most moxie of anyone he ever met.
I mention Kunstler because I want to tell a story about him with a Concord connection. Although unnoticed at the time, Kunstler appeared before Judge Martin Loughlin in the federal court in Concord in 1984.
Kunstler was brought in as counsel on a case in which the FBI had wiretapped attorney-client conversations with the defendant’s original lawyer. That Boston lawyer, Rob Doyle, happened to be a friend of mine. I played hooky from law school and went to the federal court to observe the case.
When I arrived at the court, I sat down in the back. Two women came over to me and asked who I was. After I explained, they told me to come sit with them. They were friends of the defendant and they let me know they were witches. They were casting spells on the prosecutors and they did not think it was a good idea for me to sit where I had been. I moved.
I remember Bill grilling an FBI agent on cross-examination most of the morning. Bill, even then, was something of a legend. He was a huge, imposing man. Judge Loughlin, a wonderful man himself, treated Bill with great deference and called him “Billy.”
After the morning, Bill took me, Rob Doyle, and my friend Steve Cherry out to lunch at the old Thursday’s Restaurant. I remember Bill flashing a roll of hundred-dollar bills when he paid.
Bill was in his mid-60s at the time. At lunch, he confided in us that the secret to a long life was to have sex every day. Bill made it to 76, so feel free to draw your own conclusions.
Bill was a total character. I admired his chutzpah and bravery.
For anyone who would want to know more about him, his autobiography, My Life as a Radical Lawyer, is a revealing and wonderful read. The scope of his career was amazing.
Defense attorneys like Kunstler protect our rights by vigorously asserting them. These are the same rights John Adams fought for when he defended the British soldiers in 1770. Without that advocacy, rights shrivel and become dead pieces of paper.
The 9/11 suspects deserve the same rights as other criminal defendants, including the right to counsel and the right to a public trial. It is also appropriate that they are being tried in the place the crime was committed. Ensuring the fairness of the process is an important value in and of itself.