[Posted November 18, 2006]  Virginia lost an outstanding lawyer when Frank Dunham died recently. His passing and his life’s work have been marked elsewhere, in more detail than I will attempt here. But there is one lesson we can and should gather from his example.

This will not be a first-person recollection of my encounters with Mr. Dunham. That’s because there are no such encounters, as far as I know. I never met him; never got to work with him in a case; never sat down to discuss our lives, our careers, and our approaches to both. What I have gleaned about this man, and about an important component of his character, comes entirely from what I have read and heard about him, and principally about his involvement in one single case. But even in this microcosm, even from this distance, even though he is no longer here to redirect my words where I might stray, the lesson is unmistakable.

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I recall well the sense of anger I felt when I read of the plight of Yaser Hamdi, the American citizen who was captured in Afghanistan, allegedly fighting for the Taliban against our troops. I didn’t exactly think of Hamdi as a freedom fighter; nor did my sympathies lie with his apparent choice of politics. For all I knew — indeed, for all I know now, with the retrospective wisdom of hindsight — he fully deserved arrest, detention, and prosecution.

But he never got that prosecution. As the story unfolded, it became clear that our government was discarding one of the most priceless hallmarks of American citizenship — it was detaining Hamdi, incommunicado, without access to family, friends, or a lawyer. He was being held without any criminal charges, simply because the government thought it would be useful to hold him and see what information it could extract. I don’t want to think about the means our interrogators may have used.

This course of action called into question, in my mind, one of the most fundamental tenets of our society. Petty dictators imprison their opponents for trumped-up charges, or on no charges at all. The greatest republic in the world does not do so. We are Americans; we don’t treat our citizens that way. Indeed, this practice was one of the grievances cited by a famous Virginian in his 1776 indictment of the king of England. The roots of this doctrine go back almost eight centuries, to clause 39 of the Magna Carta. Could this be happening, here and now?

It was indeed happening, as the detention stretched into months and then years. The question was, what to do about it?

Frank Dunham decided to do something about it.

At this point, you may be wondering why all the fuss about a more or less routine representation. After all, this was his job, right? Well, not exactly. As the federal defender, Mr. Dunham got his clients the old-fashioned way — by appointment from the U.S. District Court. His “customers” had each been charged with one federal offense or another, and received the benefit of his broad experience because they could not pay for a private — and usually less effective — attorney. But there was no order of appointment for Hamdi, since there were no criminal charges against him.

Given a number of circumstances, specifically including the pace of prosecutions in the Rocket Docket, Mr. Dunham had a very large clientele. But that didn’t stop him. In this case, he went out hunting for a new client who didn’t even know that he existed. He filed a petition for a writ of habeas corpus, asking the court to review Hamdi’s detention. He found initial success, as the U.S. District Judge to whom the case was assigned, Robert G. Doumar, shared the sense that the American government does not and cannot do this to its citizens. He ordered the government to permit Mr. Dunham to meet privately with Hamdi. Although the judge’s order was eventually reversed by the Fourth Circuit, his conclusion — the position that Mr. Dunham had consistently urged — was ultimately vindicated in one of the most important U.S. Supreme Court opinions of our times, Hamdi v. Rumsfeld, 542 US 507 (2004).  That ruling includes the now-famous language, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

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Historians have attributed to the Irish philosopher Edmund Burke the sage observation, “All that is necessary for the triumph of evil is that good men do nothing.” It is with this in mind that I regard with considerable shame my own inactivity in the face of these events. Privately, I steamed about the government’s hubris — traitor or no, if Charles Manson was entitled to a lawyer, then so is this guy. I had no doubt that this treatment of Hamdi, this sacrifice of one of the cornerstones of our American identity, was an evil, and that it should not persist; Somebody had to do something about it. Unfortunately for my own self-assessment, I condemned myself to repeat the old joke about inactivity:

“Once upon a time, there were four people; their names were Everybody, Somebody, Nobody and Anybody. Whenever there was an important job to be done, Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. When Nobody did it, Everybody got angry because it was Everybody’s job. Everybody thought that Somebody would do it, but Nobody realized that Nobody would do it. So consequently Everybody blamed Somebody when Nobody did what Anybody could have done in the first place.”

When Hamdi’s story became widely known, I was convinced that what was going on was very wrong. But I assumed, as noted above, that Somebody would do something about it, and I did nothing. Fortunately for the Bill of Rights, Frank Dunham proved that he was, indeed, Somebody. But I am left to contemplate that I was no better than the Everybody who assumed that evil can be vanquished when a lot of good men do nothing. Burke was right; it doesn’t work that way.

I thus have taken this lesson from Frank Dunham’s life, and commend it to you. The lesson is courage; the courage to do what’s right, not just what’s in your job description. Never assume that wrongs, even great wrongs, will be set right, by the efforts of others. The safeguarding of our society, of our American identity, of the culture that we will bequeath to our children’s and grandchildren’s generations, depends on our activity. We each lead busy lives, and have plenty to worry about in trying to cover the overhead and support our families. But if we don’t take time out when evil, however we may define it, threatens, then we can only look inward when we lose precious things, such as the freedoms our parents and grandparents bequeathed to us.

Rest well, Mr. Dunham, and thank you for the lesson.