tag:blogger.com,1999:blog-8512362.post4686993112329555318..comments2024-03-10T13:59:19.230-04:00Comments on xpostfactoid: Michael Mukasey's bait-and-switch: 'al Qaeda 7' for Yoo and BybeeAndrew Sprunghttp://www.blogger.com/profile/17601269968798865106noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8512362.post-89715615000373126512010-03-12T14:13:21.840-05:002010-03-12T14:13:21.840-05:00If Yoo's memos were answers on a law school ex...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).<br /><br />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. <br /><br />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. <br /><br />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.Geoff Ghttps://www.blogger.com/profile/17117921607237662932noreply@blogger.com