Friday, March 12, 2010

Michael Mukasey's bait-and-switch: 'al Qaeda 7' for Yoo and Bybee

Turning to the op-ed page of the WSJ on Wednesday -- always a dangerous enterprise if you support the rule of law  -- I noted with satisfaction an op-ed by former attorney general Michael Mukasey titled, "Why You Shouldn't Judge a Lawyer by His Clients." It appeared that Mukasey was joining other Bush Administration attorneys and principled conservatives in denouncing the vicious smears of Liz Cheney against Justice Department lawyers and other attorneys who have defended Guantanamo detainees or otherwise worked to uphold the rule of law in the treatment of detainees.

While Mukasey's piece does defend those who defend "clients that were or became unpopular," the piece is a bait-and-switch, built on a false and dangerous equivalence that is sure to become a Republican talking point.  After noting perfunctorily that Bernie Madoff's lawyer was reviled, Mukasey turns to his true passion:
More recently, we've witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.
After then noting the denunciation of Justice Department attorneys who in private practice represented terrorist suspects or upheld their rights, Mukasey makes his move:

This is all of a piece, and what it is a piece of is something both shoddy and dangerous. A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe. And a lawyer who undertakes to represent someone whom his neighbors—perhaps rightly—revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil's Island for little more than being Jewish.
So...smears against attorneys who defended members of a group more than two thirds of whom the Bush Administration ultimately concluded to be innocent (530 Guantanamo detainees out of a total of about 770 were released before Obama took office), and against attorneys who successfully fought the Bush Administration's attempts to deny due process to this group, are of a piece with calls to disbar the attorneys who green-lighted the torture of detainees --notwithstanding that the Office of Professional Responsibility in Bush's own Justice Department found that Yoo committed intentional professional misconduct and that Bybee committed professional misconduct (though that finding was moderated by Associate Deputy Attorney General David Margolis in the final report released last month).

Yoo and Bybee's torture memos created definitions of torture that shock the conscience, Yoo in the process ignoring precedents that clearly deemed waterboarding illegal.  They affirmed the President's right to ignore any law and abrogate any treaty to authorize any act he deems essential to national security.  By consensus of all but the most radical fringe of the legal profession, their incompetent (at best) and bad-faith (at worst) rubber-stamping of their bosses' clear desire to implement a torture regime enabled the CIA, the military and the executive branch to violate U.S. and international law in the treatment of detainees.  Their opinions authorized conduct that obligates the United States under the Geneva Convention to prosecute its highest elected and appointed officials for war crimes. The fact that the U.S. is ignoring that obligation does not negate the fact that the obligation clearly exists in law.

Look for Fox News commentators and Republican Senators and House members to take up Mukasey's cudgel and equate denunciations of Yoo and Bybee with smears against defenders of the Constitution.

Note, too, the slant that Mukasey places on the obligations of attorneys in the Office of Legal Counsel. It is not inaccurate to assert, as Muskasey does, that "A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe."  But he inverts the emphasis of the Principles to Guide the Office of Legal Counsel, dated Dec. 21, 2004, and signed by nineteen former OLC attorneys:
When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action (OLC Report, p. 16, citing doc in Attachment F).  
And again, as paraphrased and quoted in the OLC Report (p. 16):  "The OLC should take the Executive Branch's goals into account and 'assist their accomplishment within the law' without 'seek[ing] simply to legitimate the policy preferences of the administration of which it is a part.'"

That is the standard by which Yoo committed intentional professional misconduct and Bybee committed professional misconduct according to the original OLC report. Arguing that that judgment should have been upheld in the final report is worlds apart from smearing attorneys for representing unpopular suspects or arguing that their constitutional rights be upheld.

Related post:  "Enemy Belligerent" lawmakers: McCain and Lieberman

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1 comment:

  1. If Yoo's memos were answers on a law school exam answering a hypothetical on the President's powers in the event of a terrorist attack, he'd know he flunked the exam the minute he put it on the professor's desk, or shortly thereafter. Legal analysis inherently involves dealing with "both sides of the question" or more accurately, giving a full account of the applicable law then applying it to the facts of the hypothetical. (In law school as in life, exams inherently involve close or complicated questions - lawyers aren't paid to answer questions like "Can I run a stop sign?" or "If my neighbor is playing her music too loud, can I shoot her?") Yoo decidedly, objectively, indisputably, did not deal with "both sides" or give a complete analysis. He could not possibly have thought it was complete, unless he is a very, very weak lawyer (weaker than any lawyer I've ever worked with in 25 years of practice).

    Political actors and pundits (especially conservatives) frequently make one-sided arguments that look patently ridiculous to objective observers. (If you doubt me, and I know you don't, read the Wall Street Journal editorial page for a week.) That's fine, at least to the extent that it's better to have unrestricted speech, even if it's stupid speech, than regulated speech.

    But, lawyers can't be one-sided, it's a much a violation of ethics as stealing money from clients or missing filing deadlines or aiding and abetting fraud. A lawyer who does it knows he's wrong, just as the lawyer who's trying to cover his gambling debts by billing his client for work he didn't do knows he's wrong. It's not an act of omission (in 25 years of practice, I'm sure I've committed more than a few sins of omission, it would be impossible not to), but a conscious decision to mislead the client.

    Which begs the question, why would a lawyer do that? My answer is admittedly rank speculation and impossible to prove, but I think it may be because the participants forgot that their overly-simplistic Manichean worldview is not an accurate description of objective reality but rather a rhetorical tool to demonize their opponents and obscure fundamental truths. In a black and white world, as a speech to a bunch of rabid partisans gathered to spew foam at the perfidy of their enemies, Yoo's memo would make sense. In the real world, however, it does not rise even to the level of an argument.

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