Balkinization: Just Say "No"

Just Say "No"

Marty Lederman

Jim Comey delivered this speech 28 months ago. Back then, it would have seemed rather standard-issue, hardly worthy of publication in a legal journal. But his audience on that day in May 2005 -- an assemblage at the National Security Agency -- knew all-too-well exactly what he was saying, and how audacious it was in light of what Comey and the NSA had recently been through.

In light of what we now know, kudos to the Green Bag for publishing Comey's speech unadorned, without introduction. A pertinent excerpt:

The lawyer is the custodian of so much. The custodian of our own personal reputations, surely. But more importantly, the custodian of our institutional reputations. And most importantly of all, the custodian of our constitution and the rule of law.

It is the job of a good lawyer to say “yes.” It is as much the job of a good lawyer to say “no.” “No” is much, much harder. “No” must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. “No” is often the undoing of a career. And often, “no” must be spoken in competition with the voices of other lawyers who do not have the courage to echo it.

For all those reasons, it takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long-run, intelligence under law is the only sustainable intelligence in this country.

P.S. One oddity in the speech: Comey refers at one point to the public's view of the legal profession: "[T]hey see blood-sucking divorce lawyers, greedy class-action lawyers, weasel ACLU lawyers, and timid DOJ lawyers."

"Weasel" ACLU lawyers? I know there might be a lot of folks -- perhaps especially in Comey's audience that day -- who have some unkind words to say about the ACLU. But "weaselly"? What's that about?

Posted 8:57 PM by Marty Lederman [link]

Comments:

Unfortunately, Comey's comments apply to much more than the legal profession. Businesses want everyone to have a "can do" attitude, and those who don't are not considered team players. In our political sphere, we are asked to "support the troops" by keeping them in a fruitless war.

And when you say no to that attitude, for legal, ethical, and moral reasons, you get fired, or demoted, or stalled until you choose to leave. When you say pull out the troops, end the misbegotten war, you are labeled a "traitor", "defeatocrat", or a "cut and run" liberal.

But you still have your honor, and you'll have fulfilled the admonishment of Kipling:

If you can keep your head when all about you
Are losing theirs and blaming it on you,
If you can trust yourself when all men doubt you
But make allowance for their doubting too,
If you can wait and not be tired by waiting,
Or being lied about, don't deal in lies,
Or being hated, don't give way to hating,
And yet don't look too good, nor talk too wise:
If you can dream--and not make dreams your master,
If you can think--and not make thoughts your aim;
If you can meet with Triumph and Disaster
And treat those two impostors just the same;
If you can bear to hear the truth you've spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build 'em up with worn-out tools:
If you can make one heap of all your winnings
And risk it all on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breathe a word about your loss;
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: "Hold on!"
If you can talk with crowds and keep your virtue,
Or walk with kings--nor lose the common touch,
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much,
If you can fill the unforgiving minute
With sixty seconds' worth of distance run,
Yours is the Earth and everything that's in it,
And--which is more--you'll be a Man, my son!

The end is a tad corny, but the rest is worth sticking to.

# posted by

Fraud Guy : 10:38 PM

"Weasel" ACLU lawyers? I know there might be a lot of folks -- perhaps especially in Comey's audience that day -- who have some unkind words to say about the ACLU. But "weaselly"? What's that about?

Maybe he was referring to the claims of legal standing in the ACLU suits against the government concerning the TSP? The term "weaselly" would fit that argument.

# posted by

Bart DePalma : 9:35 AM