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Two weeks after planes crashed into the Pentagon and the World Trade Center, criminal defense attorney Randall Hamud agreed to represent three young clients of Middle Eastern descent. Federal authorities were about to ship the men from California to New York as material witnesses, and the San Diego-based solo practitioner needed help. As he had done in the past, Hamud posted a request on an Internet message board. He sought criminal defense assistance, immigration expertise, a constitutional law expert, local counsel in New York. Could anybody pitch in? Silence was the response. Defense lawyers are used to advocating for people others revile. There’s even some glory in representing those accused of being the worst of the worst. But since the terrorist attacks, “there’s been a stampede in the opposite direction,” Hamud says. There are no hard numbers on defense lawyers turning down appointments after Sept. 11. Federal courts in both New York and Alexandria, Va. — where most of the terrorist-related criminal proceedings are playing out — have declined to provide appointment information. And most defense lawyers view their work in representing those rounded up in the anti-terrorism effort as especially crucial in the face of broad new prosecutorial powers created by the Bush administration and Congress. But clearly the magnitude of the crimes of Sept. 11 has had a profound effect on the criminal defense bar. Some defense lawyers who every day represent the rights of individuals against the state are questioning their willingness to stand up for people potentially linked to an attack on U.S. soil that cost thousands of innocent lives. ‘PEOPLE FIRST, LAWYERS SECOND’ That tension surfaced in Alexandria last week for veteran defense attorney Gregory English. On the day after Thanksgiving, English swung by the clerk’s office at the Eastern District of Virginia before heading home. The clerk asked whether English could take an appointment for Monday in a routine immigration fraud case. English agreed to represent Agus Budiman, an Indonesian national accused of helping someone else fraudulently obtain a Virginia identification card. During the Nov. 26 detention hearing before U.S. Magistrate Judge Theresa Buchanan, English says, the government called an investigator who provided details about Budiman not included in the criminal information. Allegedly, Budiman knew several of the suspected hijackers while living in Hamburg, Germany, and his name was among Mohammed Atta’s U.S. contacts. In the hearing, English says, “I hear for the first time that they are tying him into Sept. 11. I listened for a couple minutes, and I stood up and said, ‘Your Honor, I believe I have a conflict of interest. Allow me to withdraw.’ “ English explained to the judge that he served for four years in the Army as a judge advocate general, and then spent 16 years in the Reserves. His wife works for the Army, and they both knew victims of the Sept. 11 Pentagon attack. “What I didn’t say, but thought, was that rather than represent this guy, I’d be in the firing squad,” says English. “I understand deep in my heart that everyone is entitled to a defense, and no matter how odious the crime they deserve someone to represent them. But this one hit too close to home.” Another Alexandria lawyer who withdrew from a Sept. 11-related appointment says his anger at his prospective client “really surprised me. I’ll take any case, the most horrible cases. I believe in what I do.” He felt he had to withdraw, though, because he “couldn’t separate out” his rage from his duty as an advocate. Irwin Schwartz, president of the National Association of Criminal Defense Lawyers, says, “Anyone who is asked to represent someone accused of being involved in terrorist activity has a difficult choice. On the one hand, every criminal defense lawyer understands that our system of justice works only when we protect those accused of the worst acts. On the other hand, we have to understand that we criminal defense lawyers are people first and lawyers second. There are many lawyers who have said, ‘On the strength of my personal feelings, I cannot represent someone involved in the attacks.’ “ CROSS PURPOSES Khalid al Draibi was driving on a flat tire when Manassas Park police pulled him over on the evening of Sept. 11. Al Draibi was carrying a Virginia driver’s license issued the previous day in Richmond, in addition to a state of Kansas identification card. Inside his car, which bore Alabama license plates, were flight manuals for small aircraft. He was arrested and later charged with falsely claiming to be a U.S. citizen. The first attorney appointed to represent al Draibi withdrew when he learned the circumstances of his client’s arrest. “I wanted to kill him myself,” says the attorney, who did not want his name revealed. “This is exactly the kind of case I should be taking. The debate I had with myself is, could I be this guy’s lawyer? I went to talk to him and I felt like I wanted to prosecute him.” Al Draibi’s second court-appointed attorney, Drewry Hutcheson III, says he learned of the flight manuals and other items only after he accepted the case. “I was apprehensive at first,” says Hutcheson, of Alexandria’s McGinley Elsberg & Hutcheson. “I considered whether I wanted to be involved in the case and I thought, ‘Well, he needs a lawyer.’ So, I just buckled my seat belt and thought, ‘Let’s go.’ “ Al Draibi’s circumstances were certainly suspicious, but he easily passed two FBI-administered lie detector tests probing his links to terrorists. “I was the second happiest person in the world when my client passed that first polygraph test,” Hutcheson says. On Nov. 19, al Draibi pleaded guilty to the relatively minor charge of falsely claiming U.S. citizenship. He faces a jail term of up to one year and almost certain deportation. Apart from personal conflicts, there are more prosaic concerns that might dull an attorney’s enthusiasm for representing a suspected terrorist — or even clients such as Budiman and al Draibi, who are charged with crimes not directly linked to terrorism. A number of attorneys point to the fear that taking on an unpopular client in such a highly charged political climate could threaten the personal safety of one’s family. There’s also the risk of losing future business or damaging one’s reputation. Recently, Hamud, the San Diego solo, heard from an immigration specialist who offered her services — as long as Hamud could guarantee that her name would not be associated with defending terrorists. CHECKING THE POWER OF THE STATE Whether a matter of personal beliefs or professional concern, the loyalties of defense counsel have been put to a difficult test after the attacks. Middletown, Va., attorney Charles Gittins, like English a former JAG, says that before he takes a case related to terrorism he would have to consider the possible impact on his family and his practice. His decision, though, would boil down to whether he thought the defendant’s rights were in jeopardy — whether his client was in federal court or was facing the sort of military tribunal outlined in President George W. Bush’s recent executive order. “There are thousands of lawyers who try cases well in U.S. District Court, but in one of those tribunals, I would have more difficulty saying no” to taking a case, says Gittins, who frequently represents defendants in military courts. “There are not a lot of people who deal with the military on a day-to-day basis who are competent to handle these cases. The captain on the base assigned to the case is not the guy. He’s not equipped to deal with what may be essentially a food fight where there are no rules. “I’m concerned for the guy at the bottom who may not be really involved [in terrorism] but who may not have the wherewithal like bin Laden would to put together a dream team. There’s a real danger of a military tribunal railroading him. You’ve got to be able to combat that.” For others, the issues are more clean-cut. “Seeing what this government is doing in terms of eviscerating the rights of due process, there is virtually no one I wouldn’t defend,” says Manhattan defense attorney Frederick Cohn, who represented one of the men convicted of bombing the American embassy in Nairobi. “I think what we do to these people now, we’ll do to less-dangerous people later.” Washington defense lawyer Plato Cacheris, who represented spies Aldrich Ames and Robert Hanssen, points to the story of American revolutionary John Adams as a model for defense counsel in times of uncertainty. Adams successfully defended British soldiers accused of massacring colonial protesters in 1770. “He was criticized for that,” says Cacheris, “but he was acting in the highest tradition of the bar.” David Ruhnke, a Montclair, N.J.-based capital defense specialist who represented one of the men convicted of bombing the U.S. embassy in Dar es Salaam, Tanzania, says even the most zealous defense lawyers have limits. “Every lawyer has either a kind of case or a particular case that they probably should not take,” Ruhnke says. “I don’t know what that case is for me, because I haven’t had that sense yet in 25 years of practice. But I’ve never had a murder of a child case. I don’t know what I would do under those circumstances.” Certainly, few blamed the first attorneys appointed to represent Timothy McVeigh — Oklahoma City’s John Coyle III and Susan Otto — when they said their friendships with those killed in the blast precluded them from handling the case and that they would withdraw as soon as new counsel could be found. Otto, who declined comment, is now the federal public defender in Oklahoma City. She represents Mujahid Abdulqaadir Menepta, who has been charged in a sealed proceeding in New York federal court and on weapons charges in Oklahoma. English himself has represented people accused of horrifying violence, but for him, terrorism crosses the line. Those accused of terrorism deserve representation, he says. But not his. “It’s not up to me to judge them,” he says. “I cannot in good conscience defend someone like that. I spent too long wearing a uniform.”

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