Why We Defend Terrorists

I was representing a young man who had no previous problems with the law and who was about as all-American as you can be. That is to say “boy next door.” He had enlisted in the military, won the Bronze Star. He had won the Army commendation medal—twice—with upgrades to valor. He had been until his senior year a very good student. He won a small scholarship to the New York State University. And my impression of him was that he was outgoing and had a sense of personality and humor.

There's a description that reads more like Private Ryan than Timothy McVeigh. It's not the way most people would talk about a guy sentenced to die for killing 168 in an explosion that all but destroyed a federal office building in Oklahoma City. But that’s how Stephen Jones, McVeigh’s lawyer, describes him 18 years later. 

That's not to say he thinks McVeigh was innocent. He knows McVeigh committed the crime. “Tim McVeigh wanted to be seen as the only person, and he shielded everyone else,” Jones said during a recent telephone call.

Being a defense attorney means getting to know your clients, regardless of their past actions. It means getting to know them even when they are labeled terrorists. “I can say that interacting with Richard Reid was perfectly pleasant,” Tamar Birckhead, one of the “shoe bomber’s” defense attorneys tells me. In 2001, Reid attempted to ignite his shoes that were lined with explosives while on a flight from Paris to Miami. He's now serving life in prison.

In conversations with several lawyers who have defended people labeled terrorists, I found most of them seemed to be drawn to the work by a moral purpose. "We are each more than the worst thing we have ever done," Birckhead said. Or they believe strongly in civil liberties and due process, and that for our legal system to work, everyone—even the terrorists—need legal representation. “My job is to really defend the Constitution,” says Nancy Hollander, who represents Mohamedou Ould Slahi, whose memoir about his detainment in Guantanamo is currently being published at Slate. Slahi was detained in 2001, and the U.S. government believed he recruited for al-Qaida. A U.S. district judge ordered his release in 2010, but he remains in Guantanamo.

But these lawyers sometimes get a bad rap, as the defense is lumped together with the accused. In 2010, for instance, Liz Cheney's right-wing nonprofit Keep America Safe questioned the loyalty of Justice Department lawyers who had defended terrorists, which was widely chastised by Republicans. And there’s still a tendency to assume that defense lawyers will be seen as working on the wrong side. "Meet Miriam Conrad, the 56-year-old veteran federal public defender who may have become America’s most reviled lawyer last week when she agreed to represent Dzhokhar Tsarnaev," The Detroit Free Press recently wrote of the lawyer who will head the defense team in Boston. Reviled.

“The classic question is, how could you defend those people?” Birckhead says. To that, she answers plainly: “I’m not claiming to endorse in any way what my clients have done.”

The defense attorney’s job is in part to make round the flat characterization that emerges of these criminals. In the Oklahoma City bombing case, Jones thought McVeigh’s personality and history would help combat what he thought was an unfair media bias against his client. But not everyone appreciated this tactic. Why would one prop up the personality of someone who blew up a building? It's not that they're necessarily trying to get their clients off. There are smaller victories, like keeping them from death row, and ensuring a fair trial, free from bias.

“You’re trying to get [the jury] to empathize with them because the government is trying to kill them—that’s the short answer.” Gerald Zerkin, a defense attorney for Zacarias Moussaoui, who was sentenced to life in connection with the 9/11 attacks. “It doesn’t make a difference to all jurors, but it does make a difference to some jurors.”

Below, are lightly edited selections of my conversations with lawyers who have defended terrorists.

Gerald Zerkin was on the defense team for Zacarias Moussaoui, who is now serving a life sentence as a co-conspirator in the 9/11 attacks. Tamar Brickhead defended Richard Reid, the shoe bomber. Thomas Durkin represents clients detained in Guantanamo Bay. Nancy Hollander represents Mohamedou Ould Slahi, whose memoir about his detainment in Guantanamo is currently being published at Slate. Stephen Jones defended Timothy McVeigh.

On the job of defense attorney

Zerkin: Defense attorneys see ourselves as the last great defense of the Constitution, of the Bill of Rights in particular. But we get to know our clients in ways that the public doesn’t. The public has a view of our clients as being inhuman monsters, and that is not the way we come to know them. We find out that there is a much bigger story there. In the Boston case, you are starting to see that starting to seep out. This guy [Dzhokhar Tsarnaev] is far more complex than a simplistic, “Oh, he’s a terrible, horrible, person who went and planted these bombs.” So there is a bigger story there. It’s a defense attorney’s job, but what we really do is dedicate ourselves to telling the rest of the story. The prosecution isn’t going to tell the story, the United States isn’t going to tell the story; it’s up to us to tell the rest of this story, about who this person is and how they came to be in this place.

Birckhead: As the defense attorney, I’m the only one with the duty to ensure that this person has a voice. And to ensure that the government is put to the ultimate test—that their burden to prove each element of evidence beyond a reasonable doubt is met. All of that is the intellectual, academic part of it. But the other part of it, for me, and I can only speak for myself, it’s really satisfying.... As a public defender, particularly, you’re the only one standing between this person, you’re the only one really standing with this person.

On why they defend terrorists

Jones: The court had asked me to accept the appointment, and I had said throughout my career I have demonstrated fidelity to the concept that lawyers are officers of the court and they have a duty to defend controversial, unpopular cases or clients if there’s no conflict of interest and if they are competent in that field. I would have been at best a hypocrite and at worst a liar if I had not lived up to what I urged others to do.

Birckhead: If someone like Dzhokhar Tsarnaev does not have the very best defense possible, then it puts our entire criminal-justice system in jeopardy. Because the most despised and hated among us—we as a society have a responsibility to protect them with the same commitment that we have to protect anyone. That’s the only way that our due process rights are going to endure. We can’t start picking and choosing among worthy and unworthy criminal defendants. We have to be very principled about it.

Durkin: I see it as a civil-liberties issue. I think the concept of the war on terror, calling it a "war" was a mistake. I’ve spent years defending people caught up in the war on drugs, and I’ve seen the abuse that comes with seeing war rhetoric.... The use of war rhetoric in our court system becomes very dangerous, and it quickly erodes civil liberties.

Hollander: My job is to really defend the Constitution. We have laws in this country, the Constitution being one of those laws; we have international treaties that are law;, we have rules of evidence and due process. And we believe that this is a great system. And when it works well, it is, it’s a good system. And it is my job to defend that system, to defend people who are caught up into it. These cases, I think, are among the most important in our history.

On getting to know terrorists

Birckhead: It’s empathy for a purpose. I’m being paid. Our tax dollars go toward the work I have done on the state level or federal level, and I’m being paid to represent someone well. And to do that, I firmly believe you have to establish some rapport. You have to gain someone’s trust and someone’s confidence, and the best way of doing that is to approach them as a human being who is more than what they are accused of being, to share with them my expertise, and assure them that I am not there to judge …

[Richard Reid] treated me with respect and we had a good rapport. I think that he trusted his lawyers. He trusted the advice, the information that we were sharing with him­. And that’s critical.

Hollander: To me they are not different from my other clients who are charged with child abuse, or rape, or murder, or fraud, or espionage. They’re human beings, and I meet with them as people and spend a lot of time with them.

On answering the question, “How could you defend those people?”

Birckhead: Just because I defend someone who is accused of rape or child molestation, that certainly isn’t a reflection of how I as an individual feel about those acts. But that’s hard, that might be the crux of what’s difficult for people to understand. That they associate with defending someone, serving as their defense attorney, as somehow the same as endorsing what they have done. And it really couldn’t be further from the truth.

Zerkin: There’s an awful amount of people who can't wrap their heads around the fact that we are defense attorneys at all .... We deal with that all the time. And then even more who can’t wrap their heads around the fact that we defend capital cases. And then you get to terrorism cases and it ups the ante further. But, fundamentally, it’s all the same from our standpoint: This is someone who is entitled under our Constitution to the best defense that we can provide. We have committed our professional lives to doing that work, and we do the best job that we possibly can. If you can’t or if you hesitate to do that, you really need to be doing something else.