The Ethics of Defending Hitler

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by Kevin Jon Heller

A few months ago, I mentioned in the comments to my now-infamous grape soda post that although I have no ethical qualms about advising Dr. Karadzic, I would not have defended Hitler if he had lived to see the inside of an Allied courtroom. That statement led to a number of pointed — and understandable — criticisms, such as this one:

Fair enough, but tell me where is the principle in admitting that as a Jew you wouldn’t represent Hitler, but you are happy to represent somebody else’s Hitler? (No I don’t think Karadzic was a Hitler, but nevertheless some see him that way). Again some pulling the wool over ones own eyes is necessary, its either that or to admit that it is rather unprincipled to be willing to represent one man accused of mass murder, but not another.

I tried to address the issue in more depth during my Bloggingheads.tv interview (the discussion is about 50 minutes in). Most of the comments on the interview focused on the Hitler question — with sentiment divided regarding my position. Indeed, Mark entitled his UN Dispatch post linking to the interview “Would You Defend Hitler?”

Few people, I imagine, will subject themselves to listening to me for an hour. (My students, of course, have no choice.) So I thought I would explain my position here. In my view, the question “would you defend Hitler?” actually consists of two very different questions:

* If Hitler had been prosecuted, would he have deserved a skilled and zealous defense?
* If you think Hitler would have deserved a skilled and zealous defense, would you have volunteered to provide it?

I am very interested to hear how readers would answer those questions. As I have implied, my answers differ: I would answer “yes, unequivocally” to the first question, and “no, definitely not” to the second one. The first question is easy for me: when an adversarial criminal-justice system chooses to prosecute someone, that person deserves a skilled and zealous defense no matter how serious his or her alleged crimes. Indeed, I think the obligation to provide such defense inheres in the very form of the adversarial criminal trial. (Hence the name of the system.)

To be sure, there are non-legal methods for dealing with heinous criminals — as most people know, Churchill initially favored summarily executing leading Nazis over providing them with fair trials. I am glad the Allies decided to create the IMT instead, because I believe (as Justice Jackson eloquently insisted) that the Allies needed to show the Germans and the rest of the international community that they were better than the Nazis. But, to be honest, I would not have been particularly troubled by Churchill’s solution: at least he would not have cloaked the summary executions in the mantle of legality. The executions would have been political justice pure and simple, the rightness of which would have been for the world to judge.

The second question is where things become more complicated for me. Although I believe Hitler would have deserved a skilled and zealous defense had he lived to be prosecuted, I simply could not have defended him. A defense attorney does not have to believe that his (or her) client is innocent to provide him with a zealous defense. A defense attorney does not have to like his client to provide him with a zealous defense. But a defense attorney cannot provide his client with a zealous defense unless he is is capable of reconciling himself to the possibility that his efforts might lead to his client being acquitted. The ability to accept that possibility is, I believe, the sine qua non of effective representation. It is not enough for a defense attorney to have an abstract commitment to the idea that every defendant deserves a skilled and zealous defense. Nor is it enough for a defense attorney to represent a defendant because he believes that, no matter how skilled and zealous the defense, an acquittal is unimaginable. On the contrary, a defense attorney has to be able to say to himself “my commitment to the idea that every defendant deserves a skilled and zealous defense is so strong that I will be able to live with myself if, as a result of my representation, my client is acquitted.” If he cannot say that — and mean it — he has no business representing that defendant.

And that is where I fail the test concerning Hitler. I believe that I could zealously defended any of history’s other mass murderers — the Saddam Husseins, Pol Pots, and Pinochets of the world. But for personal reasons, not legal or ethical ones — I’m Jewish, my family is originally from Poland and Russia, I had family (albeit distant) perish in the Holocaust — I simply could not have defended Hitler and lived with myself if, as a result of my representation, he had been acquitted.

Does that make me a hypocrite? To be honest — yes, it does. I completely agree with what one of the commenters at Bloggingheads.tv said (I am combining two of his or her comments):

The whole premise of an international court is that prosecutions transcend particular religious, political and ethnic identities. In other words, everyone (or no one) is a Jew in a Hitler prosecution and everyone (or no one) is a Tutsi in the Rwanda genocide… I don’t think “I am Jewish” justifies the recusal. If you really believe that genocide is genocide is genocide, i.e., a crime against humanity, you are participating in a trial for the sake of humanity, not for the sake of Jews or Rwandans or Bosnians.

I have no defense to that argument, other than to admit that I am not always capable of living up to my own ethical ideals. I wish my commitment to the idea that all defendants deserve a skilled and zealous defense allowed me, in good conscience, to provide such a defense to anyone, even — perhaps especially — to Hitler. I wish my commitment to the idea that the lives of those who are close to me are no more valuable than the lives of others meant that I could view Hitler’s crimes as no different than the crimes of Saddam Hussein, Pol Pot, or Pinochet. They simply don’t.

I don’t think I’m alone in my limitations. In my experience, all defense attorneys have the one kind of case or the one kind of defendant they simply cannot bring themselves to defend. (To offer a humorous example, I know a federal public defender in Arizona who can defend absolutely anyone — except people who blow up waterfalls in national parks. It happens more than you might imagine.) My exception is Hitler. Fortunately, I am far from the only defense attorney in the world. There are many others who are not Jewish and who probably could in good conscience provide Hitler with a skilled and zealous defense. And for that I’m grateful, because it gets me off the hook. The goal is to ensure that all defendants receive such a defense, no matter how heinous their alleged crimes — not to require individual defense attorneys to put themselves in situations where, justifiably or not, their representation would be less zealous than professional ethics require. So as long as there are other skilled attorneys available to defend the Hitlers of the world, I see nothing wrong in recognizing that even the most zealous defense attorney has his or her limits. Despite suggestions to the contrary, defense attorneys are humans, too.

As for what I would do if the Allies had prosecuted Hitler and no other defense attorney in the world would defend him — that I’d have to think about…