Nancy Hollander is an internationally recognized criminal defense lawyer from the Albuquerque, New Mexico, firm of Freedman Boyd Hollander Goldberg Urias & Ward PA, and an Associate Tenant with Doughty Street Chambers, London, UK. The inspiring story of her efforts in freeing Mohamedou Ould Slahi from Guantanamo Bay, where he was held from 2002 to 2016 without charge, were recently captured by the legal drama film The Mauritanian, in which she was played by Jodie Foster.
CJLPA: Welcome today, Nancy. I’d like to begin by thanking you again for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art, to discuss your career as a human rights criminal law defence lawyer. Throughout your career, you’ve been involved in the most high profile of cases, representing clients in a wide range of criminal cases, involving white collar crime, drug trafficking, murder, and terrorism. Equally, you are a highly respected and renowned lawyer in international human rights law, having represented clients before the European Court of Human Rights and the United Nations Human Rights Committee. Inevitably, there are many legal topics to discuss based on your work, but in the interests of time I thought that in today’s interview we could focus specifically on your work in defending terrorism, and in particular the implications protecting human rights, or really the lack thereof in such cases.
Based on that, I’d like to begun by asking you why you think it is that when dealing with the crime of terrorism it is treated so fundamentally different in a court of law compared to other barbaric crimes such as murder, rape, or kidnapping.
Nancy Hollander: The fundamental difference between terrorism and other crimes, and why I don’t think we should have the crime of terrorism, is that it always looks at a community, either a racial community, an ethnic community, or some other community. It’s not a crime involving one person, so even if one person is charged with terrorism, it tends to include the whole community. That to me is the difference. It is a crime on top of another crime; It’s vague and it’s unnecessary. There has never been an international definition of terrorism and I doubt that there ever will be because no one can agree on exactly what it is.
CJLPA: That’s interesting. Do you think you have this perspective in retrospect after working on terrorism cases or is that a thought that you had before taking on the cases?
NH: Before I took on the cases I did not really think about it to tell you the truth. I was asked to talk about the history of the crime of terrorism at some seminar I was at in the Hague, and I looked into it and realised that my thoughts are not new on this. People have been saying for many years that we should have never had the crime of terrorism and I started looking into it more and I realised…You know you’ve heard people say one man’s terrorist is one man’s freedom fighter. Well, there is truth to that! And if you look at history, who is a terrorist and who is not? The founder of the US, George Washington, was considered a terrorist. Nelson Mandela was considered a terrorist. Jerry Adams, Yasser Arafat, I mean how many more do we need who were considered terrorists at one time but at the same time became heroes. So if you just charge people with what they’re accused of you don’t get into that issue.
CJLPA: I’d like to get more specific in some of the cases that you have worked on, beginning with the Holy Land case. In this case you defended Shukri Abu Baker, who was charged with terrorism alongside other co-defendants. Could you briefly walk me through the main ways where justice and the rule of law were denied in this case?
NH: There was no justice in that case. It’s the worst case of my entire legal career as far as I am concerned. Shukri and one of his co-defendants, Ghassan Elashi, are each doing 65 years in jail for the crime of feeding children. That is essentially what they were doing. The Holy Land case…I can send you an article I wrote, if I haven’t already sent it to you; which really outlines the whole history. It was a talk that I gave, that I made into an article. But they’re a case where they are charged with material support for terrorism. There was never any accusation that Shukri and any of his co-defendants committed any what we would call even ‘terrorist acts’. They didn’t blow up anything. They didn’t bomb anything. They were not accused of making antisemitic remarks, even. They were just accused of providing charity to people in Palestine and other countries and according to the government, by providing that charity they were somehow assisting Hamas.
It was vague, there was never any allegation of them being related to Hamas. It was simply that they were changing the hearts and minds of the people, by the people they were feeding. It’s a tragic case and it’s an example of how they were accused of something that other people did. So during these trials, I can’t tell you how many times it showed the same bus being blown up. The same American flag being trampled on. But they were never accused of doing those things and during the trial it was clear that they didn’t do those things. Other people did those things. And that’s an example of how terrorism has become so broad that under an American case, humanitarian law, I can’t even assist some organization or individual who’s been designated as a terrorist on how to change that, how to come into the democratic process. By assisting them, I’m committing acts of material support. It’s a terrible case and other things happened in that case. It’s the first case in American history, US history, where an expert was allowed to testify in secret. Basically, we were not allowed to know his real name, we were not allowed to know who he was, we were told we couldn’t research him and yet he was supposedly an expert on Hamas. And that meant that there was no right to real cross examination and certainly no right to confrontation, which is something that is required in the US Constitution. The Sixth Amendment says everyone has the right to confrontation. Well, you can’t confront someone if you are not allowed to know anything about them.
CJLPA: Based on what you have just mentioned about not being able to cross-examine the expert and also the video of the bus being blown up but there being no actual linkage to the defendants, how and why was that even admissible and what would you do in those situations when it is quite clearly against the law, but the judges are enabling it. Is there any way around it?
NH: You can only do what you can do. You can try to convince the jury that the government is wrong; which we did in the first place. We got a mistrial. But then the government came back with four, maybe five, different pieces of evidence that were clearly more prejudicial than probative. That the appellant court said should not have been admitted, but then said it was a harmless error, which probably was a political decision on the part of the court. How do you confront that? I don’t know. You know, we will never give up on this case, we’ve gone everywhere we can with the courts but we can just hope for a miracle, clemency or something that happens, where they get out eventually.
CJLPA: Further to how you said that this case seemed to be more political, does this experience make you feel that some legal decisions are pre-determined when the government gets involved, despite lawyers’ best efforts? And do you think there the rule of law can still prevail in such circumstances?
NH: I don’t think the cases are necessarily predetermined, but throughout the process, the decisions that prosecutors make, judges make, are weighed against the defendants, certain defendants. Certainly Muslims in the US now, black people as far as we can remember, Native Americans. The US has never been a democracy for all the people. It’s a misnomer. People believe that at one point it was a great country and we have to get back there. Well, when was that? When was the rule of law applied to everyone? Native Americans were slaughtered, genocide. We started with slaves. It’s very hard to accept that the rule of law really exists for everyone in the United States. It’s true in other countries too. What we want to do and what we have to keep doing as defence lawyers is keep pushing, so that the rule of law does apply to everyone. And so in the case of the US, the US legal system does become a justice system, which it isn’t now. It’s not a US justice system, it’s a US legal system that provides justice sometimes and sometimes doesn’t.
CJLPA: Based on that, how does a lawyer operate in a justice system where they cannot always trust it, because as you said the rule of law is not always going to be applicable to everyone? You take on a case and the case process that is occurring in the courts is going to be prejudiced. Decisions are going to be made that aren’t necessarily reflective of the justice system that the US is meant to embody. How does a lawyer take on that case knowing that that’s what’s going to happen?
NH: There is always a point because there is always the possibility of a miracle, and I don’t mean miracle in a spiritual sense or religious sense. I mean that there are people within the legal system on both sides who are good people and want to do the right thing. I represented a woman for many years in New York and the way I got her out of prison was through the help of the prosecutor. Mohamedou Ould Slahi is a good example of the assistance of the prosecutor. There are people on both sides in the criminal legal system who do want to see justice prevail and there are judges who want to see justice prevail. And when you don’t have those, you just have to keep fighting, and when you do have those you fight together to do everything you can to provide for the rule of law, and that’s what we have to do. You know, fortunately, in the US system, everyone is entitled to a lawyer. Everyone is entitled to have at least one person stand with them and fight against the power of the government. And that person can make a difference. It happens, it doesn’t always happen. Doesn’t happen enough, but we have to keep pushing so it will happen more and more, in the international system as well.
CJLPA: Transitioning to a different high-profile case that you worked on, Mohamedou Slahi. After the 9/11 attacks, the Bush administration promised to find the terrorists responsible, no matter what the costs. Mr Slahi was arrested and was ultimately transferred to Guantanamo Bay Detention camp in 2002 and you got involved in 2005, I believe, to defend him. What prompted you or what intrigued you to take on this case specifically?
NH: I wanted to do a Guantanamo case and I wasn’t really looking for one specifically. But this one fell into my lap when a lawyer in France, whom I knew, wrote and said he been requested by a lawyer in Mauritania to look into this case and was I interested. And I said yes. I knew virtually nothing about Mohamedou when I started. I knew what he was accused of and that was it. But this was the one that came to me, so this is the one I took.
CJLPA: What would you say, when you began this case, were the key elements in your case strategy to prove his innocence?
NH: You’ve got to remember he was never arrested, he was captured. There was no legal process happening here. There was no legitimate US court happening here. He was captured in Mauritania. He was taken to Jordan, where he was tortured for seven or eight months. Then rendered to Jordan, rendered to Afghanistan, rendered to Guantanamo, tortured in Guantanamo, interrogated in Guantanamo, and ultimately the court said that he and others could file petitions for writs of Habeas Corpus. But the government’s position was, well they can file them but we are never going to answer them. And it wasn’t until 2008 that the Supreme Court ruled in the Boumediene case that the government actually had to answer these petitions. And then we at least had a legal forum in which to conduct the case. But there was never a real one; other than the Habeas case, which we won in 2009, there was no legal process happening here.
CJLPA: As you said, it was based on the Habeas Corpus, that you were able to take on this case and essentially go to court because the US actually never charged Mr Slahi for the crimes that they alleged. Do you believe that, based on that, it was irrespective or irrelevant whether or not, particularly Mr Slahi but also other detainees in Guantanamo Bay, do you think it was irrelevant in such circumstances when such due process was denied?
NH: Yes, it became irrelevant and it’s still irrelevant. There are still thirty or thirty-one of them in there. Seventeen of whom I believe are already cleared for release and all but five, six, seven, eight maybe have never been charged with any crime. They have been there since 2002. That’s not a legal process. That is not the rule of law being carried out. If some American/US citizen is in a foreign country and being held for 20 years without being charged, the US government would go crazy. And yet that’s what it is doing and has been doing and people have been tortured. We were able to get a number of those people out and people were tried. One person has been tried, convicted, his case reversed. Another one pleaded guilty, his case was reversed. I have another one there who is facing the death penalty and there are 9/11 guys that are there and are a couple of others who are facing charges in this military commission. But the military commission is not like any court that is structured under US law; it’s under the Uniform Code of Military Justice for Soldiers. It’s not under the federal rules for the US. It’s a made-up court, and due process doesn’t apply. How do you have the rule of law when due process doesn’t apply?
CJLPA: Why do you think, after everything is exposed in Guantanamo Bay, that this prison system still exists and how does the US government get away from that?
NH: The US is the bully of the world. The US has troops on over 150 of the 200 odd countries on this planet, on the ground. So the US gets away with whatever it wants, basically. And that’s how it has gotten away with this. The US stands up and talks about the human rights violations in China, the torture of the Russians, Cuba, and yet the US is as guilty or more guilty than any of these other countries but it just can get away with it because of its power. Of its economic power, of its strategic power, and that’s how it gets away with it. Empires rule. That’s been the history of the world.
CJLPA: So in terms of the next steps for Guantanamo Bay and supposedly shutting it down. Do you think it means more lawyers needing to get involved in these cases and trying them or is it more starting at the root of the problem and trying to work with the politicians and putting more pressure on them? Where would you see the ultimate change factor?
NH: Everyone in Guantanamo who wants a lawyer now has one and has had one for many years. And these lawyers keep fighting and that’s how we end up with one or two getting out once in a while. President Biden promised to close Guantanamo, President Obama promised to close Guantanamo. Neither one took decisive action. President Obama is responsible for Mohamedou spending another seven years in prison, because we won this case, A lot of people were winning the Habeas at that time and all the government had to do under Obama, Obama’s Justice Department, Obama’s Attorney General was just not appeal. They go home. They wouldn’t have to worry about what country they go to or where they go. They would get out, And yet most of them were appealed and so Mohamedou sat there for another seven years. And even after he won the second thing which was not a court, the Periodic Review Board, which was six intelligence agencies that found unanimously that he was not a significant threat to the US or its allies, it took several more months to get him out. And then he did not get a passport for three years because the US, as it did with all the countries, told Mauritania they couldn’t give him a passport. So, the US just has its claws everywhere and all you can do is keep fighting and that’s what we continue to do.
I fight for my other client, Ibrahim Al Nasiri, in the international court and the Commission lawyers fight for him in his criminal case. The other lawyers who represent the defendants in the criminal cases or in the Habeas cases continue to fight for them. We continue to try to find places that will take them under these strict US rules. And you know there were a number of, and still are, Yemenis in Guantanamo. And they at one point were beginning to go home. And then a Nigerian guy tried to light his underwear on fire in an airplane over Detroit. And he had been recruited and got the equipment that he had from a Yemeni guy. So President Obama said, no more Yemenis go home. Well, that’s collective punishment. And that’s what happened and they got stuck there. And now there is almost no Yemen for them to go home to. They have to go to other places.
CJLPA: Despite the disappointing outcome with Mr Slahi and how the Obama administration appealed it, how do you remain motivated in those circumstances? What did you learn from that case and defending Mr Slahi that you can now apply in these current cases where you are continuing the same fight, where you are working for a system that does not always respect the due process and the justice system?
NH: I learned a long time ago, in the law, that you just keep going and hope for a miracle, as I told you. With the woman I represented, Precious Paddel, all of a sudden we had a different judge and the prosecutor said now we have a chance and we did. In Mohamedou’s case, all of a sudden he was called up to the Periodic Review Board, one of the last ones called up. After years of thinking what we going to do, we’ve run out of things to do. Something appeared. That’s always possible. So you just keep going, and that’s what I tell lawyers, you just keep going. You keep thinking of new things, thinking of something else. What else can we do? How can we do something that brings this to people’s attention? In Mohamedou’s case, I believe his book, Guantanamo Diary, helped get him out. And the film, The Mauritanian, we now hope will help others get out because it gets the conversation back. People are speaking about it, thinking about it, talking about it.
In all criminal cases, which is what I have been involved with, internationally or domestically. You just do everything you know to do, you investigate every corner. You do everything you have the time, energy, finances to do, so that you don’t miss anything. And it won’t work all the time. It won’t work a lot of the time, but it will work sometimes and you’ve got to keep pressing for it. You know, we recently celebrated the anniversary of a case called Gideon v Wainwright. Gideon was a guy in Florida who wrote a handwritten letter to the Supreme Court of the US and said ‘I didn’t have a lawyer’ and as a result of that case, everyone who is charged with a felony in the United States is entitled to a lawyer. Anyone who is going to go to jail, even for a misdemeanour is entitled to a lawyer. But that wasn’t the case before. Before Brown v Board of Education said separate is not equal and said there shouldn’t be segregation in the US schools; there was segregation. So people have to fight that fight. People still have to fight to make sure that a lawyer means a breathing lawyer, an awake lawyer, a not drunk lawyer. So those cases keep happening. But you just keep building on them and fighting for due process in the rule of law and that’s what lawyers do. That’s what we do. It is hard and it is depressing sometimes, often, and its dispiriting but you just keep doing it.
CJLPA: Is there a way to also increase accountability of the US government? So to, say, sue certain officials in such circumstances?
NH: Yes, there is a way to increase accountability through lawsuits and civil cases against police departments and against police, but those cases are also very difficult. I don’t do them but those are cases where things do change. Police departments have been forced to change through pressure. Pressure on politicians. Getting a politician who is on your side, to focus on those. Electing different people can make a difference. And in the case of Mr Al Nasiri the accountability that he wants, for people to know what happened to him because he was tortured in the CIA black sites. We had to go to the International Courts. And we have had a success. We won two hundred thousand euros for his family, through the European Court of Human Rights. We have a case in front of the International Criminal Court, a case in the UK, a case in front of the UN working committee on arbitrated detention and that will never get him out, but it will get accountability, where other organisations, people, politicians in other countries will see what happened to him. The US is never going to answer to any of those courts. Recently we heard that there was an arrest warrant against Putin from the ICC and I was reading quite a bit about it. And I noticed, they didn’t say ‘well, Russia doesn’t acknowledge this court’. Well, they also didn’t say that the US doesn’t acknowledge this court either…
CJLPA: Why do you think it is that the US would never sign to these courts and these Treaties?
NH: Because the US is afraid that that will bring out things that happened which the CIA did. That the US will find itself getting arrest warrants for individuals in the US who have committed war crimes. In fact, there is a law in the US that is euphemistically called the Hague Invasion Act and it is a law in the US that says if any American is locked up in the Hague as result of an ICC arrest warrant, US soldiers can go in and get them out. The US worked very hard to get the Rome Statute passed and then said ‘not for us, doesn’t apply to us’.
CJLPA: On that point then, what do you think are the implications of the way the US currently operate in outside the international law by committing torture. Could this impact Americans that are currently wrongly detained in other countries such as Iran, where there is also torture?
NH: Of course it can apply to other Americans and it has. We’ve seen other countries say ‘the US does this, so we can do it’. There have been numerous amicus briefs written by former admirals, former generals, saying this is dangerous for Americans in other countries. And of course it is because if the US can do it, why can’t others do it to Americans? And yet that argument doesn’t seem to ever get anywhere because the US is the world police and there is a lot of arrogance that goes with that.
CJLPA: I’d like to also talk a bit about a common theme that comes up in criminal law, amongst lawyers about innocent versus guilty and I think this is a question that often comes up from, I suppose, academics and people when they ask a criminal lawyer, defense lawyer ‘what if you know your client is guilty?’. How do you, from your perspective as a criminal defense lawyer, explain this, even in the context of defending the most barbaric crimes?
NH: It is not my job to decide who is guilty and who is not guilty. It’s never my job to prove someone is innocent. The concept is, is the person guilty or not guilty and it’s up to the government in the US to prove that beyond a reasonable doubt. That’s the standard in most places: proof beyond a reasonable doubt, but that’s the government’s burden. My burden is to defend my client zealously against the government. If, in the end, if the government uses fair tactics, follows the rule of law, provides for due process, and the defendant is convicted, then we will argue about sentencing. But my job is not to be the jury. That’s not my job. My job is to, in the US, essentially defend the US Constitution for everyone, because if it doesn’t apply to my client, it might not apply to someone else, and I don’t think anyone can ever say they won’t be accused of a crime. Someone can say they would never commit a certain crime; they can never say they won’t be accused of committing it. So, that person wants to have the same protection that my client has.
I had a client once who I was defending, he was a Republican, who was an oil and gas man and he called me and said, ‘I pulled the lever on the voting booth straight Democrat because I was scared you would find out’. And I said well, the quickest way to turn a Republican into a Democrat is to get him accused of a crime and all of a sudden, ‘What? What is the judge thinking?’. Now you know. You have to approach it that way. I tell people who say, ‘well I could defend certain crimes but not others’, that they’ve got to a really rethink whether you can be a criminal defence lawyer. There are clients I don’t want to defend and I have; I can make that choice. But public defenders don’t get to make that choice. They shouldn’t, they have to represent everyone and everyone the same. And that’s the way it must be. Just because you represent someone who commits a murder, or child abuse, or fraud, doesn’t mean that you did it. It just means that you are providing what the Constitution requires and making sure that there is a rule of law in the country. If we don’t have a rule of law at all, we have a police state.
CJLPA: Absolutely. I think inevitably, it doesn’t matter guilty or innocent, every individual has the right to his protection and the right to be treated with human dignity. And that goes back also to Guantanamo Bay. I think a lot of people spoke about the prisoners, whether or not they did it or were they involved. From my point of view, and from what I have read about Guantanamo Bay and the cases, it doesn’t matter if they did do it or they didn’t do it. You read into the torture that they have endured, that the government was responsible for. It’s despicable. No human, no matter what they have done, should ever endure that treatment and they should have had that protection and the justice system failed them because that ever occurred. And so on that point then, I thought it was quite interesting, watching The Mauritanian, which I thought was a fantastic film, I did notice as well that there was a lot of discussion of innocence versus guilt and did he do it, did he not do it. Do you think that was important in the film?
NH: I think it was important in the film. It was never important to me. Teri [Duncan] actually, is a death penalty lawyer who represents people on death row and would never have cared in real life whether someone was guilty or not, but the role she took in the film was kind of to be a proxy for the audience. We know that is what the audience is thinking at that point and that’s when I kick her out, you have to leave. Which never happened by the way. There was another lawyer involved who quit but not Teri. But Teri agreed to do this for the film’s sake, to combine these people, so that the audience would have someone to identify with. That whole scene is really interesting because I really would tell someone who took that position, you need to rethink whether you want to be a criminal defence lawyer and you are not on this case anymore. That would have happened. I wouldn’t have been as rude as Jodie was. Jodie has said she was much meaner than I am and ruder. But I did say the last words that are in that scene and those were my words and I must have said them to Jodie when we were talking at one point because she mouthed them. ‘You’ve gotta believe your own shit’, and it’s something that we call trial psychosis. When you get into it you really got to believe, wow, I can really win this. Even when you know you can’t. You’ve got to believe it, you’ve got to believe it and work towards it. And in Mohamedou’s case, there were overwhelming allegations against him that we had to fight one after the other and it turned out that they were all made of nothing. But if you read the police, the first reports you would think he was guilty. Which is true in all criminal cases, if all you do is read the police reports you would think everyone is guilty. And then you got to start parsing it. But I did think it was important for the audience to see how that debate worked out.
CJLPA: Reflecting back on your work in that case, today, what would be your advice to present-day lawyers defending a client in a similar situation, not necessarily Guantanamo Bay case, but cases where they are accused of terrorism and confined in the most inhumane prison? Would you have approached the case differently now, thinking back of how it worked through all those years?
NH: I don’t know what I would have done differently in Mohamedou’s case, other cases where I have re-thought what I did. But in that case, I think we did everything we knew how to do. I wish we had done some of the investigations that we weren’t able to do, that we didn’t have the funds to do. And maybe things would have moved a little faster. And I am not sure anything would have made a difference at that point at that case. But you know, my advice to people is just don’t give up, turn every corner, be a lawyer, take care of your client. Clients’ stories are the most important and most crimes that are committed by people are the worst five minutes of their lives and they would never do it again. Everyone should be treated with human dignity. And that is the bottom line. Treat your clients the same way you would treat everyone else and care for them, listen to them, listen to what they have to say and do everything you possibly can to win the case. As long as you do it ethically.
CJLPA: You mentioned that in Mohamedou’s case you wouldn’t have done something different, but potentially in other cases. Could you expand a bit more on that?
NH: Yes, in my first cases. I tried a whole bunch of felony cases when I was a brand-new lawyer. And I know, if I looked back and I did those cases, the ones I lost, and most of them as a public defender, I would say ‘wow, why didn’t I think of this’, ‘why didn’t I think of that’. I didn’t really have very many people to help me at that time, I had some. I went in, I was thrown in and there are other cases where I just feel like I missed something along the way, and I wish I could go back and do them again.
CJLPA: What was the most memorable case you have done and why particularly it is that one? Not necessarily the most important, but the most memorable that stuck with you over the years.
NH: I really thought about this question, Nadia. There are cases that no one knows about, and I suppose they might be the most memorable, because people know about Mohamedou’s case, they know about Chelsea Manning’s case, they know about Precious Padel’s case, they know about other cases I have won. Lots and lots of high-profile cases, but I was thinking about it. I represented people where we were able to get the charges dismissed and no one ever knew about it. And isn’t that really the best for the client. I remember representing a lawyer who was charged with child abuse. Two people who were charged with child abuse. In both cases they were completely innocent, completely innocent and the cases were dismissed after investigation, and no one ever knew that they were charged. It was the end. Came and went. There was this other guy who was accused of 13 murders and that case people did know about because he got arrested. So it was really high profile, so that case was dismissed. The ones where no one ever knew about them I think are the best. Because that’s where I did my job, because that’s where the criminal legal system worked. Somebody is charged with a crime and then the case goes away because it should and to me those are the most memorable.
CJLPA: Do you think that also corresponds with the fact that there was a less of a public eye on it, which in a way offered it more of a due process, having the media cut out of it and the politicians not involved?
NH: I do think that matters, a lot. I know that the child abuse cases that I was involved in twenty years ago were a lot different than if I were to be involved in the same case today. The press would be all over it. And it would be a real tragedy for both the complaining witness, who needed some psychiatric care, and for my client, who needed not to have to go through this in the public eye. So I think in many cases that would be different. And that is unfortunate because, you know, there is so much, so much news now about things we never used to know about. We have amber alerts, which we never used to have. We have twenty-four-hour news. We have draconian sentences. And so all of this goes against in many ways the rule of law. Yes, of course we need to protect real victims of rape, real victims of child abuse. But there are times where you don’t know who the real victim is, when the case starts. Is it the defendant or the complaining witness and who is the real victim here? And that is often true in the sex related cases. And those are the ones where they keep the complaining witness’s name and you don’t get to know who that person is, if it is a child. But you know who the defendant is and maybe they shouldn’t, maybe neither one be public until we know where these cases are going.
The news is different now than it was twenty years ago. And in many ways that is unfortunate. We don’t have more crime, I keep telling people this. I tell people who say ‘well, it was safer when your son was young’, that, no, it wasn’t, it was actually less safe in the eighties in the US than it is now. Except for murders which went up in the US, during the pandemic, and nobody quite knows why. I mean if you leave the pandemic and the peculiarities of that time out of it. Crime is down, but we never hear more about it. So you’ve got these helicopter parents who won’t let their kids go outside alone. And yet, they are safer than when I let my son go out alone, forty years ago.
CJLPA: What would you say is an appropriate balance between having that privacy in the courtroom and the trial taking its course and then equally the public also having awareness of what’s going on around them and their surroundings and the crimes occurring in their neighbourhoods?
NH: Well, it is a balance and the public has right to know, and that also benefits someone who is accused because you want the public to be aware, you don’t want to have trials in private, and so there is a balance. But in the balance the defendant’s Sixth Amendment right to protection in favour of confrontation, in due process, the right to a fair trial, always has to be the balance that you look for, always, that balance has to be the one that tips the scale.
CJLPA: It would be interesting to know from your experience as a lawyer and working with various other lawyers, what have you noticed makes a good lawyer or a distinguishing one?
NH: A good lawyer, in my view, and I tell this to people coming out of law school and people I have been about to hire over years, is someone who is for lack of better words a full-service lawyer. If my client is going to jail and my client says ‘but there is nobody home to take care of my cat’, it’s my job to make sure that the cat gets taken care of. Whenever people go into prison to meet to the client, talk about the crime, talk about the defence, but also make sure that the client is okay, make sure that the client is getting the medicine, and getting the visits he needs, or she needs, make sure that everyone is alright all the time, and listen to the client, listen to the client’s stories and make sure you understand who they are, go visit the crime scene but also visit the family, talk about the history, talk about who this person is, get to know that person, and just be everything that person needs, because the lawyer is ultimately the only person between the defendant and the accused and the world and the government. It’s pretty simple.
CJLPA: Absolutely. One more question, just to wrap everything up: in your legacy of defending human rights law throughout your career, how would you want this fight to continue by your successors and what do you hope is going to improve over the years in the justice system?
NH: If I were starting today, I’d be figuring out how to represent migrants and refugees around the world. There are people in refugee camps all over the world that we don’t know anything about. Hundreds and hundreds of people who were born, live, die in camps where they get no services, no UN services, no NGO services, they don’t even know they exist. They’re huge, they’re all over the place. And that’s where I think that’s where I would devote my time if I were starting now. I work in an organisation, I’m on its advisory board at the International Bridges to Justice and a goal is to provide lawyers to everyone, and making sure that people who are in prison in countries that have very few lawyers get lawyers, to make sure lawyers are trained all over the world, make sure that the world understands why we need lawyers, and why people who think they will never commit a crime need to make sure that everyone has a lawyer to protect them, and their families, and the rule of law for everyone. But I tell lawyers now when they say ‘what would you do?’, I say I would do immigration law and migrant law, refugee law, because that to me is becoming the biggest issue around the world.
CJLPA: Absolutely. I agree definitely on that. Thank you very much for taking the time to speak with us today.
This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.