January, 18, 2007

The following op-ed, Patriots in defense of the ‘enemy’ by Visiting Professor Daniel Coquillette ’71, was published in The Boston Globe on January, 18, 2007.

Last week’s attack by a top Defense Department official on lawyers representing Guantanamo detainees raises an issue Americans have visited many times before — an issue that was familiar to our Founding Fathers.

On March 5, 1770, a group of British Regulars, on guard duty in a hostile Boston, opened fire on an unarmed but threatening group of civilians, killing five and wounding more. Known as the “Boston Massacre,” the event was a godsend to patriot propagandists, such as Samuel Adams. In fact, it was a textbook example of how military mistakes can aid insurgencies. The commander of the British detachment, a Captain Preston, and some of his men were charged with murder.

Among the Boston Sons of Liberty were John Adams, who went on to become our second president, and his first cousin, Josiah Quincy Jr., a sickly but brilliant patriot. Both were lawyers, newly started on their careers. To the horror of Quincy’s father, a wealthy and distinguished citizen, Quincy and Adams decided to represent Captain Preston and his men.

Quincy’s father wrote to him: “I am under great affliction at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow citizens. Good God! Is it possible? I will not believe it.”

Quincy’s father went on to warn his son that this decision would be “destructive of your reputation and interest” as a young lawyer, a true professional disaster.

Four days later, Quincy replied to his father: “Lest such be told, Sir, that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation . . .”

At Captain Preston’s trial, Quincy addressed the jury:

“The reputation of the country depends much on your conduct, gentlemen; and, may I not add, justice calls aloud for candor in hearing, and impartiality in deciding this course, which has, perhaps, too much engrossed our affections; and, I speak for one, too much excited our passions.

“The law, by which the prisoners are to be tried, is a law of mercy, — a law applying to us all — a law, founded in principles that are permanent, uniform and universal, always conformable to the feelings of humanity, and the indelible rights of mankind.”

Preston and his men were acquitted. Since that day, the cold courage of Quincy and Adams in representing the troops of a hated enemy has been a great symbol of the American rule of law. In the battle for the hearts and minds of Americans in 1770, it identified the patriot cause with moral legitimacy and legality, a result as important as any military triumph. Quincy and Adams understood perfectly that to abandon fundamental principles out of anger and fear was to award victory to the enemy.

In April 1775, Quincy made the ultimate sacrifice. Returning from a special mission to England with top secret information for the patriot cause, sailing the winter North Atlantic against all his doctors’ orders, Quincy died of tuberculosis, his lifelong curse. His infant son, who really never knew his father, later became president of Harvard and mayor of Boston. Towns, streets, college buildings, a city, and a famous marketplace are named for Quincy’s distinguished family. But for some of us, his greatest moment of glory was when, as a young lawyer, he risked his career for his duty.

Today, as in the McCarthy era, we are beginning to hear threats against the careers of lawyers who represent unpopular clients and “enemies.” When Cully Stimson, deputy assistant defense secretary for detainee affairs, suggested last week that CEOs should pressure law firms to stop representing Guantanamo prisoners, he sent a shudder through the legal profession. His comments represented a real threat to all suspects’ right to counsel. It takes a lot to risk livelihood for principle, particularly when lawyers are representing controversial clients pro bono. But we do not have to look far for inspiration. The cold courage of our Founding Fathers shows the way.