Archive for the ‘Law’ Category

Thoughts on Evolution and Republican Candidates

Friday, September 2nd, 2011

By all conventional standards of the time, William Jennings Bryant was a liberal.  He ran for president three times as a Democrat. He opposed the gold standard for limiting credit to farms in his famous and spell binding “Cross of Gold” speech. He was a populist who railed eloquently against oil companies and railroads. However, most people remember Bryant as the ardent and literalistic fundamentalist Christian who argued against the teaching of evolution in public schools in the famous Scopes Monkey trial.

How can we square Bryant’s liberalism with a position that many now associate with Republicans? The issue lies with the unfortunate extension of the meaning of the theory of evolution far beyond its legitimate scope. Some people perverted evolution into Social Darwinism, the notion that if some people do poorly in the economy is because they are not a socially fit as the successful. If the rich are more successful, it is consistent with the “scientific” notion of survival of the fittest. Ever the defender of the downtrodden, Bryant unfortunately conflated his Christian concern for the poor, with the necessity to dispute what he viewed as an anti-working-class ideology. At its heart, Bryant was not really making a scientific argument, but a moral one.

The problem for Bryant was he tried to unnecessarily take sides in a science vs. religion dispute. For many there really is no such conflict. Whenever there is an apparent conflict between science and the Bible, the problem is less likely to be science or the Bible, but rather Biblical interpretation or the inappropriate application of science.

It is the thesis here that for many Americans that disputes about evolution represent an unnecessary defense against people like Richard Dawkins and Christopher Hitchens who who argue that science precludes serious religiosity. It is my suspicion that political figures sympathetic to Intelligent Design is less the result of thorough grappling with the scientific issues, an more a defensive reaction to what I call “evangelical atheists.”

It would be preferable to have Republican presidential candidates with more thoughtful positions on evolution. However, I prefer their faulty Biblical interpretation (from my perspective) to the Constitutional jurisprudence of Democrats who believe that the commerce clause of the Constitution that can extend to grant Congress virtually unlimited powers.

The Quiet Death of the War Powers Act

Sunday, June 12th, 2011

When the War Powers Act was passed in 1973, the country ached from the pain of the Vietnam War, an experience no one wanted to repeat. The conventional wisdom was the Vietnam catastrophe was caused by too much executive war-making discretion. Hence, Congress tried to limit the time the president could deploy troops without explicit Congressional authorization, constraining executive authority.

The Constitution is vague about separation of authority with respect to the use of military force. Congress is entrusted with the power to declare war, but the President is the commander and chief. The courts have been reluctant to intervene in this battle of separation of powers, leaving Congress and the President to contend in the political sphere.

Typically, Republicans incline to according more discretion to the executive, whereas Democrats tilt toward Congressional supremacy. Ironically, Republicans have observed the War Power constraints, even while arguing that the President is not required to. President George W. Bush sought and received Congressional authorization for the actions in Afghanistan and Iraq. The authorization provided political cover in the conflicts. If Bush had pursued those wars without Congressional approval, the country would have been even more divided than it was.

By contrast, Democratic presidents has asserted Presidential authority to act without Congressional approval, seeking instead international sanction. President Bill Clinton did not receive approval for his actions in Bosnia and Haiti. President Barack Obama has further eroded the War Powers Act, by not even making motions to comply with its limitations in the War Power in actions against Libya. International approbation rather than Congressional authorization legitimized the intervention in the eyes of the President. This is particularly surprising given that Obama opined during the 2008 campaign that:“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.’’

While Vice President Joe Biden was so convinced that a President does not have the authority to act unilaterally without Congressional authority that, when a senator, he boasted that would move to impeach Bush in the event Bush ordered and attack Iran.

“I want to make clear and submit to the Untied States Senate pointing out the president has no authority to unilaterally attack Iran. And I want to make it clear, I want it on the record, and I want to make it clear, if he does, as chairman of the foreign relations committee and former chair of the judiciary committee, I will move to impeach him.’’

I am sure that Biden meant that he would encourage the House to impeach since the Senate does not so.

The sorry situation is that Republicans will not bring the Libyan action to a vote for fear of looking like that they are not supporting the troops and most Democrats don’t want to impede a president of their party.

The War Powers Act has been dying almost since the moment of its passage, and perhaps is should. It has been honored more by Republicans than Democrats. However, it would have been more poetic if a Congressional-Executive conflict on war powers would have been effectively settled on something more relevant to direct US interests than Libya.

A Real War of Choice

Sunday, March 27th, 2011

Some who criticized the Iraq War maintained that it was a war of choice. Whatever the merits of that argument, there can be little doubt among those who support or don’t support the current action in Libya that it is a matter of choice. It the broadest sense all wars are wars of choice. However, the intervention of the US in Libya is a war of choice in that the sense that the US is not acting to protect the US or US interests. It is not a war of self-defense. It is war conducted for humanitarian reasons.

Unfortunately, justifications for the action are not as well articulated as they should be. Are we there to remove longtime tyrant Muammar el-Qaddafi? Is it to keep the “rebels’’ from being overrun? Is it to protect civilians? Do we protect civilians if the rebels threaten them?

Just War Theory requires that before engaging in the evil of war, there must be convincing evidence that the likely outcome of the war is less evil. Will the Libyan people be more free? Will less civilians be killed?

One can imagine circumstances where there would be a moral obligation to use military power for humanitarian purposes. However, given the blunt instrument that military action is, it is necessary to have a high degree of certitude that the the outcome will be positive.

In such circumstances clarity is necessary and the Obama Administration has not lived up to this standard. When euphemisms like “kinetic military action’’ action instead of “war’’ are invoked, moral clarity suffers. When missiles deliver large amounts of ordinance on the ground it is an act of war. When B2’s fly from Missouri and drop bombs on military targets, it is an an act of war. Perhaps the acts are justified, but they are acts of war, nonetheless.

When the Bush Administration took the country to war in Afghanistan and Iraq, it went to Congress, explained its purposes and was granted authorization to use force, a de facto declaration of war. The advantage of going to Congress is the discipline that it imposes. It forces an Administration to place its reasons on the record in a clear and consistent way. Moreover, if we are going to commit US service personnel, a commitment that may cost their lives, they should enjoy the full support of the country. One step in solidifying this support is obtaining Congressional authorization. If the Obama Administration had sufficient time to make their case for action in Libya to the United Nations, there was time to consult Congress.

It would be easy to score political points, by pointing out that then Senator Obama said that his interpretation of the Constitution required Congressional authorization to use force unless US citizens or interests where under immediate or imminent threat: a case no one is arguing for Libya We could indulge in guilty political amusement by playing back the video of an sanctimonious Senator (now Vice-President) Joseph Biden bravely declaring that he would support impeachment of President Bush if Bush used military action against Iran without Congressional authorization. More important, however, is whether a Congressional authorization would have made the action in Libya more likely to succeed. We submit here that the clarity of intention required to obtain such authorization would have benefited the Obama Administration and made success more likely.

If actions drag on in Libya, the US and the US Administration will suffer politically and Libyans may physically suffer. The US military may find country-building difficult, but it is has proven adept at deposing of governments and destroying other military structures. We may be fortunate if Qaddafi is deposed and there is not too much disorder after his fall. Victory heals wounds. In victory, Americans will forget exactly how the action began. However welcome such an outcome would be, it will not affect the validity of the case that Congressional authorization should have been sought.

Freedom and DNS

Sunday, November 28th, 2010

Any time the Motion Picture Association of America, the US Chamber of Commerce, and the Screen Actors Guild agree on a piece of legislation, it is time to grow concerned. On November 18, the Senate Judicial Committee reported out the Combating Online Infringement and Counterfeits Act (COICA) to the full Senate for consideration, by 19-0 vote. The bill represents an overt disregard for due process, probably violates the First Amendment, and is an embarrassing surrender to monied interests.

The COICA grants the Attorney General the discretion to determine if the primary purpose of a website is the illegal distribution of copyrighted material and to force Internet service providers (ISPs) to remove the site from domain name servers (DNSs). A DNS is the service that maps the name of a site to its IP address. For example, if you want to visit the web site to find a copy of this malicious bill, your computer asks a name server what the IP address for this site is (in this case Your computer then connects using this number. Without DNS services most people would not be able to find the sites they are interested in.

The bill is wrong on many levels and at best will only make it difficult for innocent non-copyright infringers to navigate the Internet. First, the COICA grants authority for the Attorney General to punish the owners of a site without any judicial determination of wrong doing. The rough equivalent would be if the Attorney General could arbitrarily remove your listing out the phone book or refuse to grant you access to highways without bothering to have to prove to a court that you had committed a crime.

One can conceive of useful sites like Dropbox that let people share files for legitimate purposes being effectively unreachable if an Attorney General decides that such sites are too useful for copyright infringers. The genius of our democracy is that does not allow individuals such summary authority. The COICA ignores this principle.

Removing a site’s DNS listing might make it difficult for average people to find the site, but IP addresses could easily be transferred between people serious about illegally passing around copyrighted materials. The bill would not even be effective at stopping the most serious part of the problem it is purported to alleviate. It is the honest who will be most inconvenienced.

Perhaps most significantly, without a judge in the process, an unscrupulous Attorney General could effectively silence a site to the general public by using charges of copyright infringement as an ostensible excuse. It is, therefore, not likely that the bill would survive First Amendment scrutiny, especially in an age when more and more content is moving to the Internet.

Oregon Democratic Senator Ron Wyden has said that he will block the bill from coming to a vote this year, so perhaps the bill’s submission to the full Senate was just a costless way for Senators on the Judiciary Committee to offer up a bill for powerful constituencies. If this was their motivation, we should not be quick to forgive them. Rather than engaging in pandering, the Judiciary Committee should be especially sensitive about such overreaching bills

There are already legal and effective remedies available to stop copyright violations. The First Amendment and the principle of “innocent until proven guilty’’ should not be scarified at the altar of the Motion Picture Association of America or even the US Chamber of Commerce.

Protecting Domain Name Servers

Sunday, October 10th, 2010

“As a believer in the pursuit of self-interest in a competitive capitalist system, I can’t blame a businessman who goes to Washington and tries to get special privileges for his company. He has been hired by the stockholders to make as much money for them as he can within the rules of the game. And if the rules of the game are that you go to Washington to get a special privilege, I can’t blame him for doing that. Blame the rest of us for being so foolish as to let him get away with it’’ — Nobel Prize Winning Economist Milton Friedman.

As Friedman observed the goal of business people is to make money. There are a couple of ways they can do this. One is to create products and services that meet the needs of consumers at least as well or better than others. The second is to use government to limit consumer choices to maintain a business model after it is no longer competitive.

A clear case of this is recent actions by the Senate Judiciary Committee Chairman Patrick Leahy who sponsored the Combating Online Infringement and Counterfeits Act (COICA). Groups such as the Recording Industry Association of America, Walt Disney, and Time Warner have pushing for greater enforcement of anti-copyright infringement laws. It is no coincidence that such groups are the top political contributors to Leahy (an other co-sponsors of the bill).

Now the enforcement of copyrights is noble work, but in this case this noble purpose is subordinating the free and open structure of the Internet and an indirectly threatening free speech. The are legal remedies for dealing with web sites that illegally publish copyrighted material, However, organizations like the RIAA want swifter and less procedurally encumbered mechanisms to bring down such sites. However, one person’s encumbrance is another person’s due process.

The COICA is sweeping in the power in grants the Department of Justice. Domain Name Services are the phone book of the Internet. They provide the means for converting the name of the web site (i.e., to the associated IP address. Without domain names services, navigating the Internet becomes far more cumbersome. Under the provisions of the COICA, if the the Department of Justice decides that copyright infringement is the central purpose of a site, then the site’s listing in the DNS servers of US-based Internet service providers can be removed or blacklisted. Effectively, without the intervention of a court, the Department of Justice has plenary power to silence any Internet site.

While is probably true that under most administrations such power would not be stretched to silence critics, it is not the sort of power a free society invests in a single authority without application of due process. The purpose of copyright protection ought not be allowed endanger the broad powers of public speech enabled by the Internet.

Fortunately, consideration of the bill will delayed until after the midterm elections. We should be on guard during the lame-duck session that passage might sneak through. There are Democratic and Republican co-sponsors for the bill. Unfortunately, neither party is particularly astute at sensing the real threats posed by the bill. We can thank the
Electronic Freedom Foundation
for vigilance in this regard.

It is in the long term interests of content providers to find the means for efficient compensation of copyright holders via micropayments, subscription services, or some other means, rather than lobbying that the government be given summary power to act of the behalf of the RIAA and others. One suspects that the problem is not so much that content creators are being threatened, but rather than publishers and distributors worry that their current business models will not survive the Internet.

Equal Protection

Sunday, September 26th, 2010

On November 4, 2008, uniformed Black Panther members stood in pace at the entrance of a polling place in Philadelphia with night sticks. One can click here and decide for yourself whether the individuals were attempting to intimidate voters. If such an incident had occurred 10 year ago, it is unlikely that with conflicting testimony as to what really happened could be definitely sorted out. In this age, eye-witness testimony is more persuasive gi given the video evidence.

The Bush Administration response to the incident was not as aggressive as it could have been, pursuing civil as opposed to criminal sanctions against the individuals involved. Nonetheless, the Department of Justice won a default judgment against the individuals, a judgment that the Obama Department of Justice gave up when it inexplicably dropped the case.

In response to the Obama Administration decision, Christian Adams in the Department of Justice Civil RIght Division resigned. He later testified before the US Civil Rights Commission that the case was dismissed because of a disinterest in pursuing Civil Rights cases directed against minorities. Adams’ accusation while damning, was difficult to prove. He could be dismissed as a disgruntled, politically-motivated holdover from the Bush Administration. Some argued that there was no proof that voters were actually intimidated by the Black Panther thugs despite the actions. Nonetheless, the civil case had already been won, and the Department of Justice refused to accept victory.

The issue has been resurrected with the testimony of the Christopher Coates, the former head of the Voting Rights Section of the Department of Justice, before the US Department of Civil RIghts Commission. He had been directed by the Justice Department not to not comply with the subpoena, but complied nonetheless.

Coates justified his decision to testify:

“I did not lightly decide to comply with your subpoena in contradiction to the DOJ’s directives not to testify,… If incorrect representations are going to successfully thwart inquiry into the systemic problems regarding race-neutral enforcement of the Voting Rights Act by the Civil Rights Division, problems that were manifested….in the New Black Panther Party case that end is not going to be furthered or accomplished by my sitting idly or silently by at the direction of my supervisors while incorrect information is provided…. I do not believe that I am professionally, ethically, legally, or morally bound to allow such a result to occur.’’

Coates largely corroborated Adams’ testimony. The Holder Justice Department had decided not to pursue cases against minority defendants “until we reached the day when the socio-economic status of blacks in Mississippi was the same as the socio-economic status of whites living there.’’

It is impossible to paint Coates as a political partisan bent of causing problems for the Obama Administration. He was originally appointed by President Clinton, worked for voting rights for the American Civil Liberties Union, and received awards for his efforts by the National Association for the Advancement of Colored People. If he is concerned about selective, race-based civil rights enforcement, he brings with that concern a cache of credibility

Even more important that any particular economic or social policy, the election of President Barack Obama represented a seminal event, The US could be said to have overcome is original sin of slavery and racial discrimination. It is not that bigotry would cease to exist or disparate conditions equalized, but Obama’s election and his inuaguration with nearly 70% approval, proved that the United States had crossed an important threshold in race relations.

The case in Philadelphia is a small one. No election outcome depended on what happened there, but it is still potentially damning. If the Justice Department proves not to be committed to equal protection of the law, it is denying a fundamental promise of America. Presuming President Obama is committed to an America undivided be race, he should determine who in his Justice Department refuses to believe in equal protection of the law and dismiss them. His legacy may be threatened.

Voter Intimidation in Philadelphia

Sunday, July 11th, 2010

On November 4, 2008, Barack Obama became the first black American to be elected President of the United States. Obama carried the election with nearly 53% of the vote. A large fraction of the remainder might have been disappointed from a political standpoint, but could not help feeling a sense of pride that to a large measure the racial bigotry that had been America’s original sin had been cleansed from our collective souls.

On the same day, New Black Panther Party member, King Samir Shabazz, stood in front of a Philadelphia poll brandishing a bludgeon and intimidating poll workers and voters. Christopher Hill, a poll watcher, was called a “cracker” by Shabazz. Bartle Bull claims it was the worst case of voter intimidation that he had ever witnessed. Bull’s claim carries significant weight since he served as a civil rights lawyer in the South in the 1960’s.

Though eyewitness claims are important, this incident might have devolved into a clash of testimonies had there not been video showing Shabazz in paramilitary gear strutting at the entrance of a Philadelphia polling place. Further, Shabazz made himself a less sympathetic character when claiming on another video at a different time that if “if you want freedom you’re going to have to kill some crackers, you’re going to have to kill some of their babies.”

The Chair of US Civil Rights Commission reported the facts of the case as:

“On November 4th, 2008, two members of the New Black Panther Party appeared at a polling station in Philadelphia. Video evidence and eyewitness testimony show that these two members standing athwart the entrance of the polling place dressed in paramilitary uniforms with black combat boots. One of them brandished a nightstick. They hurled racial epithets at whites and blacks alike, taunting poll watchers and poll observers, who were there to aid voters and, according to evidence adduced during our hearing last month, caused some voters who sought to cast their votes that day to turn and leave the polling place, rather than have to contend with them.”

Shabazz advocates a very radical ideology and no one claims that he represents any more than a tiny, tiny fraction of the population. Nonetheless, his intimidating actions in front of the polling area clearly deserved prosecution to maintain the integrity of the voting process. Under the Bush Administration, the prosecution began and a default judgment won that would have kept Shabazz away from polling places indefinitely. This was to be followed by further prosecutions of the New Black Panther Party for voting rights violations.

The Obama Administration had an easy decision to make. Simply maintain the prosecution and demonstrate that racial politics will not be tolerated on the part of anyone. Obama was supposed to represent a transition to a post-racial society. What better way to demonstrate that the Obama Department of Justice (DOJ) would not permit racial politics?

Unfortunately, the Obama Justice Department stood down the prosecution against the leaders of the New Black Panther Party and accepted a decreased the judgment against Shabazz prohibiting from polling places in Philadelphia only until 2012.  J. Christian Adams an attorney at the DOJ resigned after being instructed by apolitical appointee not to pursue the case. Christopher Coastes also stepped down as Chief of the Voting Rights Division, when his recommendation to pursue the case was denied.

The Civil Rights Commission is now investigating the entire case and the DOJ’s response to it. The Obama Administration is likely to be further embarrassed. All presidential administrations commit unforced errors and the decision to back off this prosecution is one such misstep. The disappointment is that this error undermines the hope that the Obama Administration could further racial reconciliation. There is no doubt that Obama himself seeks such reconciliation. He should insure that all his subordinates do as well.

Securing Data in the Cloud

Sunday, June 20th, 2010

The laws and traditions surrounding the rights of people to “…be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” takes on new and interesting twists in a world where communications are conducted via e-mail rather than traditional mail and where papers and effects are stored not only in the home or office but virtually in the “cloud.” It is not clear that statutory law and case law has recognized these distinctions. Where do we have or not have reasonable expectations of privacy? Is it reasonable to have any expectation of privacy for anything that is online?

A couple of interesting cases have brought this issue to our current attention. Hushmail is a service where people are promised that they can send encrypted e-mail secure from outside scrutiny, even by Hushmail. A Javascript program is installed on a person’s local browser which encrypts the e-mail before it is sent from the computer.

It turns out that Hushmail may not be quite a secure as some users believed. Hushmail turned over 12 CD’s worth of clear text mail to prosecutors pursuing the distribution of illegal steroids.

The case of Thomas Drake is more sensational. Drake was a former NSA employee accused of sharing classified information with a reporter for a “national newspaper.” Some of the alleged communications transpired over Hushmail.

We have every reason to assume in these cases that all the proper warrants were obtained and the appropriate court supervision was provided. From a technical standpooint, how then was the Hushmail data in these case obtained. Much depends on the users. Using Hushmail with a local Javascript is the most secure way of using the service. However, for the sake of convenience, Hushmail also allows uses to use SSL encryption on the way up to Hushmail servers where it is then encrypted for e-mail transmission. Hence, between the point that the uploaded e-mail in unencrypted from the SSL session and the point it is re-encrypted for e-mail transmission, the mail is in clear text. It is at this point, the Hushmail could have saved e-mails to turn over to authorities. In principle, it would always be possible for Hushmail to push down new Javascript code that would make it appear that local encryption was taking place when it actually was not.

This same issue is relevant with cloud storage. As a matter of good practice, one should backup one’s data continuously offsite. One convenient way to do this is to use services like Carbonite, Mozy, or Backblaze. It is easy to imagine a situtation where the private papers of many people are stored in the cloud. Perhaps, even lawyers, doctors, and accountants who have a fiduciary responsibility to maintain confidentiality would find it prudent to use cloud storage.

Besides the standard SSL encryption on transmission, all these services offer additional encryption such that even the provider, ostensibly, cannot decrypt the data. However, just as the case with Hushmail, it would be possible for the provider, upon instruction from the authorities, to push new software that would bypass the user’s encryption key. It would be possible for a user to double encrypt, i.e., encrypt data using some other protocol before uploading and adding the encryption on the outside server.

There is not a lot of evidence that the government or others are abusing these offsite storage capabilities. Encryption is important from the standpoint of protecting data from private snooping. We should always presume that under the appropriate circumstances governments can and many times should have the ability to search private data. However, from a civil liberties standpont, it is important for the government to provide statutory protection for data stored in the cloud and not wait for the courts to do so. Personal data stored in the cloud should enjoy the same protection that paper documents stored in one’s house. The legal hurtles to obtain a search warrant should be the same for private data in the cloud as it is for one’s home or private office. Professions that have statutory protections of their relationships with clients, should have these offsite storage options treated with the same respect that the paper files stored in offices are normally accorded.

Elena Kagan Will Not Shift to the Right

Sunday, May 16th, 2010

Until recently, a persistent problem that plagued Conservative presidents was that their Supreme Court appointees tended to drift Left, sometimes far to the Left, during their tenures. Currently retiring Justice John Paul Stevens, appointed by President Gerald Ford, represents a prime example.

Stevens likes to argue that he has been rock of consistency while the stream of the country has moved to the Right. Stevens self-portrayal would be more persuasive if he had not shifted positions on so many important issues. As Stuart Taylor of the National Journal has pointed out: Stevens was originally against racial preferences and now regularly decides in favor of them. Stevens originally believed that the death penalty was Constitutional, now he does not. From defendants’ rights to Medicaid Abortions, Stevens has slid inexorably to the Left.

Perhaps the most obvious indication of Stevens’s change in perspective is that he waited until Barack Obama became president to retire. He could have left the Court at age 88 under President George W. Bush just as easily as retiring now at 90. By any political calculus, President George W. Bush is closer to President Gerald Ford than President Barack Obama. By his deliberate selection of retirement date, Stevens, in effect, decided he wanted a Liberal judge to succeed him.There is nothing ignoble about changing one’s mind, especially if one can articulate cogent reasons for the changes. but it is disingenuous for Stevens pretend that he really has not.

There are many reasons for the traditional shift to the Left. The Washington establishment, national press, and law schools are quick to lavish praise on Conservative justices that“grow” or “evolve” in office — so long as the growth is to the Left. Everyone enjoys being held in esteem and it hard to underestimate the effect of rave or negative reviews over the long run. Perhaps the largest factor in shifts to the Left is the inherent temptation of the law for judges: the temptation to morph the law to achieve what a judge believes is a positive social outcome.

This temptation is so great, that for a Constitutionalist judge to maintain fidelity to the Constitution, he or she must bring to the Court at least two qualities. First such a judge needs the intellectual conviction, that the job of the judge is interpret and apply the law, not make wise policy and the humility to believe it. Specifically, he or she must have a “judicial temperament.” Second, a Conservative judge that maintains his or her position over time must have the intellectual power and familiarity with the law to withstand years and decades of debate with equally intelligent justices.

Justices John Roberts and Sam Alito were chosen for these qualities. The choice of Harriett Meyers by President Bush was met with consternation by Conservatives, which largely undermined her nomination, precisely becaue she possessed none of these qualities.

How then should we consider the nomination of Elena Kagan? She qualified by her legal background, but has little judicial experience. She is, to a large extent, a “stealth” candidate. Her positions, save on a few issues, are not conspicuous. Liberals do not have worry t she will be pulled to the Right. There is few in Washington tugging in that direction. More likely she will begin with mainstream Liberal positions and slide further to the Left. She will be lauded by the press as for her intellectual stature and her concern for the least fortunate. She has not been a judge and therefore has little time to develop a judicial temperament required for Constitutional fidelity. Judging from her picture on the cover of the Wall Street Journal, her only inclination to the Right is her rather good batting stance.

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.