Everyone has their favorite lawyer joke. Most end up rather poorly for the lawyers.
I understand the public outcry against lawyers, recently stoked by the situation at the Department of Justice (DOJ). For those not familiar with this news, Attorney General (AG) Eric Holder is in a pitched battle with members of the Senate over the backgrounds of nine attorneys working at DOJ. Apparently, each of those attorneys have either represented or advocated for terrorist detainees. Two have been identified: Principal Deputy Solicitor General Neal Katyal was lead counsel for Guantanamo detainees in the Supreme Court case Hamdan v. Rumsfeld; Jennifer Daskal advocated for Guantanamo detainees with Human Rights Watch (HRW).
A little background on their background:
Hamdan focused on the Combatant Status Review Tribunals (CSRTs) established under Executive Order by former President George W. Bush in 2001. CSRT determination was crucial to understanding detainee rights under the Geneva Conventions (adopted by the US), which grant specific rights to lawful enemy combatants (see Article 4) and are silent in regards to unlawful enemy combatants (see Article 5). CSRTs were a form of military commission. The main problem the Supreme Court had with CSRTs is that they were not “regularly constituted courts” under the Geneva Convention because our Constitution grants Congress the power of establishing courts. So Congress passed the Military Commissions Act, which was partially struck down by the Supreme Court in Boumediene v. Bush (but that is a story for another day).
HRW is “dedicated to protecting the human rights of people around the world.” It sounds nice, but the group admits to “targeted advocacy.” Started in 1978, HRW focused on the atrocities committed by the Evil Empire of the Soviet Union. When the Evil Empire collapsed in 1991, HRW decided to shift its main attention to the “Evil Republic” of the US. I suppose HRW decided it could not fire the vast amount of people needed to identify atrocities committed by the Evil Empire, and there was only one major power left. I also gather that it is a little easier to address “atrocities” committed by the US, as opposed to atrocities committed by China or Russia.
AG Holder refuses to identify the remaining seven lawyers, and in fact, there may be more lawyers with similar backgrounds.
Now we get to the point where you may initially disagree. While AG Holder should identify the remaining seven attorneys (promises of transparency notwithstanding) this should not turn into a witch-hunt. Some attorneys have an agenda in targeting certain clients and cases, but most attorneys simply practice their profession. Lawyers get a bad rap because you often hear about the bad ones. I am guilty of this, and sparked some expected backlash against lawyers, in general. What you have to remember is that there is ALWAYS a lawyer on the other side, and it is a lawyer’s duty to represent his client to the fullest extent of the law. And sometimes you have no control over who your client is.
John Yoo comes to mind. Mr. Yoo was recently vindicated from allegations of professional misconduct for legal opinions pertaining to enhanced interrogation techniques, among others, during his tenure at DOJ under former President George W. Bush. In fact, the DOJ attorneys accusing Mr. Yoo are probably deserving of allegations of professional misconduct. The controversy over his opinions centers on one addressing a principle of international law called jus cogens. These are peremptory norms in international law from which states may not derogate. Not necessarily contained in any treaties adopted by the US, it is a list of international no-no’s. Piracy was one of the first, followed by slavery, genocide and torture. The problem with these principles is that they are not clearly defined under international law, but are really only understood through practice and state (national) law. Keeping this in mind, Mr. Yoo was asked to outline the limits of Executive authority to interrogate detainees within the confines of US law, including treaties adopted by the US.
The point is that Mr. Yoo had a client who wanted a result. His job, as an attorney, was to satisfy his client to the extent the law would allow him, and our common law system allows for a lot of leeway when laws are not directly on point. We do not have to agree with his opinion, but that should not necessarily extend to the man. Understanding this, I can fathom why AG Holder is stone-walling. Communications between DOJ attorneys should be as protected as communications between any other Executive branch officials, assuming nothing on par with Nixon is occurring. However, AG Holder should not be allowed to withhold the identities of those attorneys. The public should be able to weigh in on the decisions of any president’s administration, especially when the officials at issue are not subject to confirmation by the Senate. This sort of conduct by the AG only heightens the public sense that something nefarious may be afoot. Transparency would limit that affect.
So as I stated earlier, I understand the public outcry against lawyers, but lawyers are people, too. They have families, work obscene hours, span the political spectrum, and a lot of them feel the pressures of the present state of the economy. Perhaps these DOJ attorneys should be subjected to scrutiny by the Senate but let us not jump to conclusions. At this point, the only bad actor is AG Holder, and he should not be representative of the entire legal profession.