Archive for March, 2010

Not Atticus Finch, Not Even John Yoo

Sunday, March 14th, 2010

There is a noble tradition in the legal community to provide legal aid pro bono for ill-disposed defendants unable to secure legal representation. The archetype attorney is this regard is  the fictional Atticus Finch in  Harper Lee’s To Kill a Mocking Bird. Atticus Finch engaged in a professional and vigorous defense of Thomas “Tom” Robinson, a black man wrongly accused of raping a young white woman. Finch defended Robinson despite the fact that the defense earned him the anger and disapprobation of his community. Why Did Finch defend Robinson? Most probably from a conviction that Tom’s was innocent. Perhaps  Finch believed that, innocent or not, criminal defendants are entitled to a defense. Perhaps Finch believed that the procedures used against Robinson violated his rights. Most readers of To Kill a Mockingbird would believe that all three factors were involved.

For an attorney to seek a case,  pro bono, when not directed by a court is a deliberate choice. It is a choice that involves a commitment of resources and time. Hence, the nature of the choice says something about the priorities, perspectives, and beliefs of the attorney. This issue has recently been raised with respect the attorneys selected by Attorney General Eric Holder. Apparently, seven of these attorneys defended detainees at Guantanamo Bay. Eric Holder has refused to disclose the names of these political appointees (not civil servants).

Now there are any number of reasons that these attorneys were involved in these cases. They may have been directed by the firms to do so. They could have believed in the innocence of those involved. They could have believed that the detainees ought to be tried in civilian rather than military courts. There are a host of possible reasons. Defending someone certainly does not imply any sympathy for the underlying crime or even a belief on the part of the attorney that the argument used for defense is ultimately valid.

If, however, these choices were made because the attorneys had a disagreement (perhaps a very reasonable ones) with US policy, this disposition is certainly a subject of reasonable inquiry. If these attorneys — now political appointees — are of the legal opinion that, for example,  people seized overseas by the military are criminals rather than prisoners of war that does not make them bad people sympathetic to the Taliban. But it does make their positions legitimate political issues and indicative the Administration’s policy with regard to detainees.

If Attorney General Eric Holder believed that this politically-appointed attorneys had a popular legal approach with regard to detainees, he would not be shy about their names and positions. Holder’s reluctance to publicly name his staff is a concession Holder’s conviction that the positions of his appointees might be  politically difficult to defend. Atticus Finch had the courage to publicly stand behind his choices, not hide behind anonymity.

In To Kill a Mocking Bird, Atticus Finch stood up against his life-long friends and neighbors to defend Tom Robinson. Although some of the attorneys hiding in the Department of Justice may be politically embarrassed now, among their professional peers at large firms, their was a mad scramble to get “street creds” by challenging the Bush Department of Justice.

Bill Kristol and Liz Cheney are over the top in referring to the lawyers at the “Al Qaeda Seven,” perhaps implying a sympathy with Al Qaeda. However, this criticism is far milder than the  attacks experienced by John Yoo, the attorney who wrote legal analysis for the Bush Administration, on the what what is or is not torture. John Yoo is willing to not only to be public about his opinions, but for making his best efforts he was accused in the popular press of war crimes and awarded a DOJ Office of Professional Responsibility investigation run by Obama politically appointees in the DOJ. It took a career a DOJ attorney, David Margolis, to counterman the recommendation that Yoo be referred for disbarment.

It is very legitimate to criticize Yoo on his legal opinions, just as it is legitimate to critique the policy perspectives of the current DOJ political appointees after they emerge from behind the skirts of AG Eric Holder. But Yoo, who is willing to publicly argue for his positions, must do so in an environment that requires real intellectual courage.

Public Sentiment is Everything

Saturday, March 6th, 2010

“In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”Abraham Lincoln.

Abraham Lincoln and Stephen Douglas engaged a series of debates in pursuit of the Senate seat from Illinois in 1858. The campaign was indirect in that state legislatures appointed Senators at the time. Hence, Lincoln and Douglas were entrusted with the banners of their respective parties (Republican and Democrat) to wrestle control of the Illinois legislature.

The key Lincoln argument was that the Federal Government can and ought to control whether or not slavery was permitted in the territories as they became states. That had been the conventional wisdom since the adoption of the US Constitution. Moreover, Lincoln was concerned that the logical extension of the infamous Dred Scott decision — a radical departure from Constitutional precedent asserting that local state law against slavery was superseded by Constitutional protections of property — was that states would be prohibited from banning slavery. Douglas argued for local popular sovereignty as to the question of the extension of slavery. Douglas refused to concede that the logic of the Court in Dred Scott would be used to compel slavery to by recognized in all states.

Lincoln was subject to the criticism of hypocrisy. He personally objected to slavery, but it was not his position to abolish slavery in those states in which it had already been established. The key [1] he used to free himself cage of hypocrisy was the observation that “Public sentiment is everything.” In the South, public sentiment would make the abolition of slavery impossible. Perhaps with time, public sentiment would change, but it was imprudent to impose a policy against which there was strong public antipathy. Lincoln was right. Ultimately, it would take a bloody Civil War to eliminate slavery.

We do not argue here that opposition to the particular health care reform offered by the Democrats is morally equivalent to the abolition of slavery  in 1858, or opposition to the current bill is as blind to the real moral issues as Stephen Douglas was. Indeed, there is a strong argument that individual freedom and liberty, at the very core of the anti-slavery position, animates opposition to the current health care bill. However, independent of the correctness of one policy or another, it is clear that a majority of Americans oppose the health care reform as the Democrats have cobbled it together. Most people want to start over with a clean slate to construct a more reasonable, less radical, and more transparent approach to change. Public sentiment is strongly against the President and Congress.

President Barack Obama fancies himself in the mold of Abraham Lincoln, a tall well-spoken person from Illinois, elected President despite modest beginnings. If the comparison is to be more than superficial, Obama ought to adopt the profound wisdom of his erstwhile political model. Leadership in this case requires making a successful public case for Obama’s brand of health care reform before compelling its implementation against the clear public sentiment. Obama has the opportunity to be one who is “deeper than he who enacts statutes or pronounces decisions.”

[1] David Zarefsky, “‘Public Sentiment Is Everything’: Lincoln’s View of Political Persuasion,” Journal of the Abraham Lincoln Association, Summer 1994.