The Significance of Gideon to the Guantánamo Detainees

The legal community must strive tirelessly for a criminal justice system that delivers reliable results even for the most reviled defendants.

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The meaning and language of Gideon v. Wainwright1 resonate loudly in the context of those persons detained since 2002 at the U.S. Naval Base, Guantánamo Bay, Cuba. As in Gideon, the right to counsel has been an issue of fundamental importance since Guantánamo was transformed into a detention center - and recognized as such by both the government and those representing, or who seek to represent, the detainees. Yet the importance of Gideon is not just with respect to the standards it set for the right to counsel in criminal cases, but also for the standards it set for the legal community’s obligation to strive tirelessly, and selflessly, for a fair criminal justice system that delivers accurate and reliable results.

A Right Not Based on Value Judgments

The categorical approach the U.S. Supreme Court adopted in Gideon, which overruled the pre-existing contextual standard applied in Betts v. Brady,2 and declared that counsel was required in all criminal prosecutions regardless whether they were capital, or sufficiently “serious” to warrant the assistance of a lawyer, acquires added importance in the Guantánamo context.

As the Court in Gideon concluded, its ruling would restore constitutional principles established to achieve a fair system of justice. Not only [the Court’s pre-Betts]precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.3 

While the detainees at Guantánamo face charges that are indisputably serious, Gideon’s mandate that all defendants are entitled to counsel naturally extends not merely to the indigent, as was the case with Gideon specifically, but to the most reviled among defendants, in which category many if not all of the Guantánamo detainees fit in the public consciousness, deservedly or not.

In fact, as discussed in Gideon’s Trumpet,4 the outstanding chronicle of the case by Anthony Lewis, Clarence Gideon himself was a difficult client and cantankerous personality. There was not much in the way of redeeming social utility that might make him worthy of appointment of counsel in a system that rendered the right to counsel contingent on value judgments about the defendant’s worth to society. As Lewis wrote of Gideon, “a fifty-one-year-old white man who had been in and out of prisons much of his life[,] . . . [a]nyone meeting him for the first time would be likely to regard him as the most wretched of men.”5 

Indeed, one of the glories of Gideon, perhaps better expressed in Gideon’s Trumpet than in the opinion itself, is that it confirms that even the lowest of the low merits the assistance of counsel, regardless of the tangible value to society in defending that particular person in that particular case. As the Court stated, the “noble ideal” of “fair trials before impartial tribunals in which every defendant stands equal before the law … cannot be realized … without a lawyer to assist him.”6 

Counsel Is Essential In Unpopular Cases

Gideon by its language emphasizes the importance of counsel in cases in which, because of the unpopular nature of the defendant and his conduct, prejudgment of guilt is most likely. The Court reflected:

Left without the aid of counsel [a defendant] may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.7 

Certainly the Guantánamo detainees, dubbed the “worst of the worst” by the secretary of defense, and declared guilty by the president before even a single charge was leveled against a single detainee, were victimized by political pandering and the general climate of anger and fear that followed the events of Sept. 11, 2001. The prospect of fair proceedings - or proceedings that sought accurate adjudication of each detainee’s conduct (or lack thereof) as opposed to simple ratification of the president’s proclamation of their guilt - was remote at the time, and remains even so a decade later.

In addition, Gideon’s reiteration that the assistance of counsel is among the protections “‘deemed necessary to insure fundamental human rights of life and liberty … [,]’”8 while couched in constitutional terms, nevertheless establishes that even beyond the constitutional imperative, assistance of counsel is essential before any legal system can be considered fair or just. As a result, even if Guantánamo constituted a legal environment in which constitutional protections were absent, the more fundamental character of a fair criminal proceeding, recognized by Gideon, undoubtedly required that the detainees be provided lawyers.

Answering Guantánamo’s Call

As important as the particular legal principles endorsed in Gideon have been to the detainees at Guantánamo, arguably the less formal lessons of the case have been even more vital. The post-9/11 incarnation of Guantánamo was deliberately designed as a law-free zone in which the U.S. government could operate an interrogation and detention laboratory devoid of the constraints of law, which are inevitably imposed by lawyers through the courts. Consequently, an important element of the government’s strategy was to deprive detainees of lawyers. Thus, in litigation instituted by representatives of the detainees (in Guantánamo and even with respect to “enemy combatants” such as Jose Padilla, arrested and detained inside the U.S. without charge or trial in military custody), the government’s steadfast policy was to refuse the lawyers access to the detainees. Only after the Supreme Court oral arguments in Rasul v. Bush9 and Padilla v. Rumsfeld10 in Spring 2004 did the government relent.

Yet that formal capitulation did not dampen the government’s antipathy toward lawyers willing to represent detainees, or halt its efforts to eliminate attorney assistance to the detainees. In an infamous example, Charles D. “Cully” Stimson, deputy assistant secretary of defense for detainee affairs at the time, asserted in January 2007 that “corporate CEOs seeing [large firms volunteering to represent Guantánamo detainees pro bono in their habeas corpus petitions] should ask firms to choose between lucrative retainers and representing terrorists.”11 

Yet the lesson of Gideon repudiated Stimson’s attempts - also excoriated contemporaneously by the organized bar - to tarnish the reputation and motivation of lawyers who answered Guantánamo’s call. As detailed in Gideon’s Trumpet, in Gideon, the Supreme Court chose perhaps the most skilled and elite private lawyer in the nation, Abe Fortas, who would later serve on the Court itself, to represent Clarence Gideon. That served as an example, standing in marked contrast to Stimson’s and the government’s cynical position, that it is not only appropriate, but even necessary, for the highest-regarded among attorneys to represent the lowest-regarded among defendants, and to do so to vindicate principles rather than obtain financial remuneration.12 

What Stimson and his ilk did not - and never seem to - understand is that it was not so much the detainees’ plaintive cries that moved the lawyers to act on their behalf, but rather the ethos, instilled in significant part by the simple yet enduring power of Gideon, that providing assistance to them was essential to sustaining the values the law seeks to uphold.

Described by Anthony Lewis as a lawyer whose “most important activities as a lawyer take place not in the courtrooms but in offices of corporations[,]” Fortas nevertheless was the perfect complement to Gideon. Lewis quoted a colleague of Fortas’s for this profile of his professional philosophy:

He values craftsmanship most highly. He is no sentimentalist, and he works for reform of the criminal law because he thinks it is right for society, not because of any illusions about criminals. But under his sobriety and detachment there is a passionate conviction. He is an angry man - angry at injustice.13 

Gideon, even a half-century ago, also foreshadowed another disturbing aspect of the Guantánamo legal apparatus. The lack of symmetry of resources afforded the prosecution and defense has since the inception of the Guantánamo military commissions served as an alternative means of depriving the detainees of a fair opportunity to defend themselves. The scope of prosecutorial resources is nearly unlimited and unfettered by the military commissions. Yet defense requests for experts, investigators, or other defense services - which, in order to be funded must be routed through the commissions’ administrative management - are routinely denied.

In Gideon, however, the Court recognized that a fair system cannot allocate resources only to the prosecution and those who can privately afford them. Rather, as the Court pointed out, an even distribution of resources is an indispensable ingredient of a fair system:

Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.14 

Legal Responsibility

Applied to Guantánamo, Gideon v. Wainwright retains vitality and importance not only as a matter of criminal procedure and substantive rights, but also as a beacon of legal responsibility. Gideon is a reminder that any society dedicated to fairness, justice, and equality under the law must honor and fulfill its legal responsibility not merely in rhetoric, but in stringent and unyielding practice.


  1. 372 U.S. 335 (1963).
  2. 316 U.S. 455 (1942).
  3. 372 U.S. at 344.
  4. Anthony Lewis, Gideon’s Trumpet (1964).
  5. Id. at 5-6.
  6. 372 U.S. at 344.
  7. Id. at 345, quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
  8. Id. at 343, quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938).
  9. 542 U.S. 466 (2004).
  10. 542 U.S. 426 (2004).
  11. Neil Lewis, Official Attacks Top Law Firms Over Detainees, N.Y. Times, Jan. 13, 2007.
  12. Similarly, the John Adams Project, NACDL’s joint engagement with the American Civil Liberties Union to provide able civilian defense counsel and other resources for the 14 “high-value” Guantánamo detainees, including the five defendants charged with participation in the events of 9/11, was so named because Adams defended British soldiers accused and tried for the 1770 Boston Massacre, which representation Adams later described as “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” John Adams, Diary and Autobiography of John Adams, Vol. 2 at 79 (L.H. Butterfield ed., The Belknap Press of Harvard University Press 1962).
  13. Gideon’s Trumpet, at 52.
  14. 372 U.S. at 344.

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