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Deputy Assistant Secretary of Defense Charles Stimson caused a furor recently by suggesting that the nation’s largest corporations should not hire lawyers who volunteer to defend the accused terrorists now housed at Guant�namo Bay, Cuba. The furor was something of a flash in the pan. Amidst a storm of outrage, his foolish comments were promptly repudiated by both the Department of Defense and the attorney general, and Stimson resigned soon afterward. But before this controversy fades from our consciousness, it is worth pausing for a brief history lesson. The fact is that for many years the defense establishment has recognized that those who represent such unpopular clients are to be applauded, not condemned, for their vigorous defense of the rule of law. In a notable example 60 years ago, one such lawyer became the secretary of war. During World War II, eight German saboteurs were secretly landed by submarine on the shores of Long Island and Florida. Well supplied with U.S. dollars, detailed maps and powerful explosives, their goal was to wreak havoc throughout the country as America strove to mobilize for war. Their capture caused page-one news stories, and an anxious public demanded “death to the spies.” President Roosevelt decided the Germans would be tried before a military tribunal, not the civilian courts, but he also took steps to ensure they were provided with a first-rate defense. He ordered Army Colonel Kenneth C. Royall to represent the saboteurs. Royall was a North Carolinian who had studied law at Harvard, where he served on the law review. He had been in the army in World War I, and had volunteered again when World War II broke out. Royall’s defense of his clients was zealous and far-reaching. In an action whose consequences reverberate today, he challenged the very idea that a military commission could try his clients, insisting that our Constitution guarantees even enemy aliens a trial before a federal court and a jury. Ignoring widespread condemnation for his defense of these unpopular clients-his home state paper, the Charlotte News, called him “a braying ass”-Royall took their case all the way to the U.S. Supreme Court. For two full days, on July 29 and 30, 1942, this Army colonel-in full uniform in time of war-argued before our highest court, defending a despised handful of our sworn enemies. Despite Royall’s efforts, the Supreme Court rejected the appeal, and the saboteurs were promptly convicted and executed. But there was no doubt that Royall’s service had been in defense not only of his clients, but of important American values, the very values we were fighting to protect. In the weeks following his argument, Royall received two highly unusual letters of praise from members of the Supreme Court. Justice Felix Frankfurter, his former professor at Harvard, commended his former student, writing “[y]ou were in service of both War and Law-and you served both with distinguished fidelity.” Justice Robert Jackson, later the chief U.S. war crimes prosecutor at Nuremberg, wrote that Royall had provided “an impressive demonstration that the right to counsel in our democracy is neither a fiction nor a formality.” Royall’s clients-the terrorists themselves-likewise recognized the significance of the free legal services Royall had provided for them, even while this country strove to defeat theirs. In a note Royall received only after their execution, his clients thanked him in somewhat broken English: “Before all we want to state that defense counsel . . . has represented our case . . . better than we could expect and probably risking the indignation of public opinion. “ Recognition by War Department Perhaps most important for current purposes, the War Department itself recognized that Royall’s services were in the highest traditions of his profession-and that they surely did not disqualify him from further government service. Royall rose to the rank of brigadier general. He then became undersecretary of war in 1945. In 1947, he was selected by President Truman to serve as America’s last secretary of war. Royall retired from government service in 1949, receiving the Distinguished Service Award. Royall then helped establish a major law firm, Royall, Koegel, Rogers & Wells, now Clifford Chance, one of those large, establishment law firms whose pro bono legal services to the Guant�namo Bay defendants Stimson so lamented. Royall had a long and distinguished career representing some of America’s largest corporations, the ones that Stimson suggested should fire lawyers of his ilk. But when he was asked at the end of his long career which of his many achievements gave him the greatest satisfaction, Royall responded, “My unsuccessful defense of the German saboteurs.” There’s a history lesson of service to our nation and to the rule of law that the Department of Defense would do well to remember. Gregory L. Diskant, a partner at New York-based Patterson Belknap Webb & Tyler, was until recently the chairman of the firm. On a pro bono basis, the firm has filed amicus briefs in the U.S. Supreme Court supporting the legal positions of alleged illegal combatants Jose Padilla, Yaser Hamdi and Salim Hamdan.

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