Jewish Lawyers Defending Anti-Semitism?

Stanley L. Cohen agreed to defend indicted Hamas leader Mussa Abu Marzuk—who masterminded the World Trade Center bombing in New York City in 1993—precisely because Cohen is Jewish, almost defiantly. "My decision," says he, "reflects the Jewish tradition of swimming against the current." Thus the fact that he took the case, he claims, had to do with his Jewish identity.

Jewish lawyers and Jewish organizations do not agree on the question, whether a Jewish lawyer should defend a suspect thought to have killed Jews or an Anti-Semite. Jewish lawyers, in particular, are ambivalent about the issue. But the American jurisprudential tradition of Innocent until proven guilty contributes to a more liberal treatment of the subject than, for example, in Israel. There the defense lawyer for Ivan Demjanjuk, Yoram Sheftel, was splashed with acid by a Holocaust survivor, and Avigdor Feldmann, a controversial lawyer who represents members of the militant Jewish underground as well as Palestinian defendants, is publicly condemned.

"I can't understand how an American Jewish lawyer could defend monsters like terrorists," says Aaron Broder, a lawyer in Manhattan. "A lawyer must stand behind his case with his whole heart; he must be convinced that his client is innocent. I despise anyone who behaves otherwise — in fact, it's an insult to the Jewish community and lacks any ethics or morality. Besides, there are enough good Arab defense lawyers who could take the case."

"America Is Very Tolerant"

Alan Dershowitz, who was the consultant to the defense team at the O.J. Simpson trial and a professor at Harvard Law School, represents anyone — even terrorists — "who I am convinced did the deed in the distant past; that is, if it is not a crime that is ongoing. Whether I represent someone has absolutely nothing to do with my Jewishness — I would not give any Anti-Semites, terrorists or former Nazis, the satisfaction of putting pressure on me in that respect. They can't keep me from representing anyone I want to represent."

In February 1995, Avi Moskovitz, an orthodox lawyer from New York, took on the defense of Ramzi Ahmed Yousef, defendant in the World Trade Center bombing trial in New York. "I had no professional doubt about taking the case," he says. "But I was asked by the judge not to take it. He was concerned that the prosecution could use the fact that I am a Jew to their benefit. Morally it was not that easy for me to take on the defense, but I have only one serious reservation that could keep me from taking a case: if I am not convinced that I could give the client the best possible defense. That's all that matters to me. I have to completely put aside my own political and moral convictions and my emotions. America is very tolerant in this respect."

That each lawyer must decide whom he or she is willing and able to defend is a given. But what about public defenders made available by the State? The US Federal Attorney's Office in New York assigns its lawyers to specific cases. But, said a spokesperson, "if a Jewish lawyer had a problem with that, another lawyer would simply be assigned to the case." However, there do not seem to be many such cases. Pat Bath, PR advisor to the Legal Aid Society in New York adds, "we have many Jewish lawyers working with us. I've never heard of one of them ever having a moral conflict of this sort and refusing to take on a defense for that reason. And if there were problems with it, we would simply assign another lawyer. No problem."

Most Jewish organizations remain silent on the issue. Phillis Ilie of the United Jewish Agency refuses to comment on possible moral conflicts for Jewish lawyers. "I have nothing to say. We are a non-political organization." So why don't Jewish organizations have anything to say, let alone bestow criticism, and even seem inhibited on this subject? "The Jewish community believes public criticism is untenable. They think there is no point criticizing each other," says Marc Stern, a lawyer at the Commission for Law and Social Action of the American Jewish Congress. "Very few attacked Stanley Cohen and his decision publicly. It's very difficult to bring pressure to bear within the Jewish community."

Lawyers Don't Like to Criticize Colleagues

"Lawyers head most of the Jewish organizations. And lawyers don't like to criticize colleagues," claims David Pollock, Associate Executive Director of the Jewish Community Relations Council in New York. "Every lawyer has to set his own limits, but the Jewish community would never take a position. I'm not happy either that a Jewish lawyer would represent a terrorist, and I admit that Jewish organizations have a difficult moral dilemma in this respect." Especially because they have to justify themselves to the Israelis.

Avi Moskovitz, who was initially to defend Ramzi Ahmed Yousef in the World Trade Center bombing, recalls that he was attacked not by Jews for his decision, but by "the lunatic right wing" in the US. "My brother lives in Israel and is more right-wing. But when I told him I had agreed to defend a fundamentalist terrorist, he said I shouldn't think twice about it. ‘If you think you can do it — go for it,' my brother encouraged me. Of the Jewish community here, no one had the guts to attack me publicly."

"American lawyers are more liberal towards suspected terrorists," believes Aaron Broder. "We are too far away from the acts of terrorism. The Israelis look at it very differently. On the other hand, if a Jewish lawyer here would represent an accused Nazi, there would probably be a public outcry." But he quickly adds, "there also has to be sharp public criticism of lawyers who defend terrorists. It's wrong to simply ignore it. It's disgraceful to keep silent."

Marc Stern addresses another aspect of the issue. "If Jews want to be treated just like Goyim, they can't on the other hand think they have a claim to special rights." Aaron Broder disagrees emphatically: "If Jewish lawyers want to be treated just like non-Jews, they have to prove that they stand by their convictions. Anyone who wants the respect of Christian colleagues must first have self-respect."

"We Rarely Represent Nice People"

The American judicial system is proud of its tradition, in which everyone has the right to a good defense. Here it is not "innocent" versus "guilty", but "guilty" versus "not-guilty". This means the defendant doesn't have to prove his innocence; the prosecution must prove beyond any doubt that the defendant is clearly guilty. An international terrorist accused of rape need only defend against this charge, not other acts Marzuk was first accused of immigration fraud — not terrorism. Whether he's also a terrorist is another question.
"It's not at all immoral to defend a terrorist. In our legal system, a good lawyer even has a duty to take on the defense," believes Harold Ostroff, chairman of the Jewish newspaper Forward in New York. "Even accused Nazis are innocent until they're found guilty and have the right to a defense. Even an accused terrorist can be innocent. But I sympathize with the victims' emotions."

However, Alan Dershowitz has little sympathy for Israelis who would attack him for defending a terrorist. "I would tell them that every murderer is a killer, terrorists are no exception. Defending them is the job of a criminal defense lawyer. We rarely represent nice people."

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