Still an American value?

"The first thing we do, let's kill all the lawyers." - William Shakespeare, Henry VI, Act IV, Scene II.

Lawyers are easy to hate. Defence lawyers in particular. Often stereotyped as misconstruing the truth in order to get their clients off on a technicality or loophole, they have a tough job.

But in reality they play a crucial role in the justice system. A constitutional democracy is founded upon several principles, but one of the most profound is that everyone is presumed innocent until proven guilty. A fair trial, with due process, and a zealous defence, are the hallmarks of the American justice system.

Such a system is designed, in part, to ensure that miscarriages of justice are kept to the absolute minimum. The protections may result in some guilty persons escaping punishment. But "that it is better that 100 guilty persons should escape than one innocent person suffer" was a maxim well endorsed by the founding fathers, including Benjamin Franklin.

American's second President, John Adams, defended British soldiers accused of carrying out the Boston Massacre, which resulted in 5 innocent deaths. But many accused were in fact acquitted, and Adams later wrote that while he risked "infamy and even death", his sense of duty required him to defend them.

And so while it is clear many lawyers are deserving of the opprobrium society lays upon them, it is also important to remember the spirit underlying the profession is in fact a noble one, which represents the best of enlightened nations' values.

All of which brings me to a tragic mistake the US government is on the verge of making, yet again in the moral black hole that is Guantanmo Bay. Section 1037 of the House Version of the National Defense Authorization Act for Fiscal Year 2011 (H.R. 5136) would require the Inspector General to conduct a 90-day investigation of any attorneys who represent Guantanamo detainees for whom there is "reasonable suspicion" that they have engaged in any conduct that has "interfered with the operations at Guantanamo", "violated any defence Department policy" or generated any "material risk to any member of the Armed Forces."

In other words, the bill would subject civilian defence attorneys to Defence department protocol. It is designed to send a chill over the defence bar, causing lawyers to fear that should they run afoul of the Defence Department's protocols, they could themselves be subject to an investigation. It is completely inconsistent with the U.S. Supreme Court's decision in Boumediene v. Bush, which held that Guantanamo detainees must have meaningful access to courts to determine the legality of their detention.

Defence lawyers should never be subject to government oversight on how they defend their clients. The bill is so offensive, individuals ranging from the American Bar Association, dozens of former judges and prosecutors, and former representatives from the Reagan and Bush Sr. administrations, have publicly opposed this section.

Keeping the justice system fair is what keeps its outcomes legitimate. After a trial where due process was respected and a passionate defence presented, should the accused be found guilty, we can all take solace in the fact that justice was served. Pervert that process - as this bill would do - by muzzling or intimidating the defence lawyers, and that legitimacy starts to fade away.

There is no reason for this legislation other than to promote a punitive and closed-minded approach to justice. But even suspected terrorists deserve certain basic protections. This is but one example of what makes America better than its enemies.

And it is that moral war which must always be won. We must never succumb to the temptation to mimick evil in order to defeat it. If we do, we will have compromised ourselves irredeemably.

The United States is better than this. Let us hope our elected representatives realize it before it is too late.