Friday, August 31, 2007

A Quiet Rebellion

David Luban

This is a remarkable story: According to Emma Schwartz in U.S. News and World Reports, up to a quarter of the Justice Department's 56 civil division lawyers have "recently opted out of handling the government's cases against detainee appeals." What Schwartz calls "a quiet rebellion" is apparently based on disagreement with the government's legal approach.

It is not unusual for individual lawyers in firms to excuse themselves from participating in cases they object to. Group defection is rarer. Ten years ago, a dozen Cravath associates wrote a memo protesting a decision by their firm to represent Crédit Suisse in its effort to fend off Holocaust survivors trying to recover gold stolen by the Nazis. The Cravath associates' memo, which quickly became public, triggered a vigorous debate within the bar about how much lawyers should allow their own conscientious convictions to determine who they represent. Between the Cravath incident and now, I can think of only one comparable group protest by lawyers in an organization - and this, too, came out of the Bush administration. Remember the riveting testimony this past May by former Deputy AG James Comey. Comey testified (starting at about 16:45 of this broadcast) that in 2004 a large number of Justice lawyers, including himself, his chief of staff, AG John Ashcroft, and Ashcroft's chief of staff, planned to resign en masse if the White House went ahead with the illegal program that Gonzales and Card tried to get the ailing Ashcroft to sign off on. Temporarily, at least, the White House caved, averting the mass resignation. (See Marty's post from May 16.)

It seems unlikely that the civil division lawyers are objecting to the Guantanamo cases on moral grounds (like the Cravath lawyers), although it's not impossible. Schwartz's story suggests that they find the legal position too farfetched to sign off on; remember that lawyers are prohibited from making frivolous arguments. That raises the rather urgent question of what that legal position might be; presumably, we will find out soon enough.

Whether the lawyers object on grounds of conscience or legal merit, this is a big story. Lawyers are allowed to represent any non-frivolous position. The ABA's Model Rules insist that "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." Based on this ethos, lawyers are used to representing positions that may repel them personally. And they don't usually balk at making strained legal arguments, if they are even remotely colorable and serve the client's purposes. When a dozen lawyers flee from a legal position of their own Department, it must be a real humdinger. One hallmark of the Bush administration has been a Terminator-like tenacity: stake out an incredible position, and if you lose, stake out an even more incredible position. Never stop coming no matter how often you're shot down. Often, of course, it works. But tenacity to what end?

[UPDATE, Sept. 1. A Miami Herald story by Carol Rosenberg states that "13 to 14 appellate division lawyers were allowed to disqualify themselves from Guantanamo cases as part of a division tradition that lets attorneys decline socially controversial cases 'as a matter of conscience.'" The division director, Robert Kopp, put the number at 10 or 11, of whom two or three asked to be excused because a family member was working on a Guantanamo case. The story mentions that during the Clinton administration, some Justice lawyers asked to be excused from defending "don't ask, don't tell" policies, while after 9/11 some refused to work on immigrant-exclusion cases. So these cases seem to be more akin to the Cravath associates than to lawyers who won't sign briefs because the arguments are frivolous.]


This is nothing new. As I recall, Chuck Cooper and Doug Kmiec at OLC had the same concerns at least once in the late 80's:

"Had I been totally candid with Thornburgh, the AIDS opinion was difficult for another reason. I was troubled that the opinion might be mistakenly viewed as a federal endorsement or sanctioning of homosexual practice . . . Substantial moral and religion teaching instructs that homosexuals have the same intrinsic moral worth as any other person; however, it also strictly forbids homosexual practice, regarding it as a physical and spiritual dysfunction for which counseling should be sought and compassionately provided. Certainly, moral concern prompted the family working group's concern thatunlimited pornography might encourage promiscuitym and in turn, AIDS. As a normative matter, the elimination of barriers to federal jobs and benefits for practicing homosexuals might be said to run counter to both morality and sound family policy if such were perceived as a condonation of homosexual practice. Taking the relationship between law and morality seriously, I privately wrestled with this moral dilemma. Ultimately, I concluded that ridding federally-supported activities of discrimination against individuals with a disease, even if that disease is largely visited on homosexuals, did not condone homosexual practice. The fact that a significant number of those with AIDS are entirely innocent victims of infection from transfusions or health care activity bolstered my thinking. Had I been unable to reach this moral conclusion, I would have recused myself from the entire issue."

Page 98, "The Attorney General's Lawyer" by Douglas W. Kmiec.

What a shame that "Doug" and "Chuck" did not feel they could be totally candid with "Dick". And thank god that there were "entirely innocent" victims of AIDS as well as the presumably " guilty" homosexuals, thus enabling "Doug" to reach a moral conclusion while preserving his santimonious, homophobic integrity.

"And they don't usually balk at making strained legal arguments, if they are even remotely colorable and serve the client's purposes."

Lawyers may be permitted to stake out positions that make no sense just because they serve the purposes of the client, but doing that leads to the perversions that paint lawyers as dogs. It leads to Slap suits, scorched-earth discovery, and a variety of other things that deny justice to poor people, and cause people to lose faith in the nation's legal system and ultimately in our system.

And it rots your soul to care so much about money that you would do this.

David Luban said,
>>>>> remember that lawyers are prohibited from making frivolous arguments. <<<<<<

That's news to me. When I sued the County of Los Angeles, the county's attorney kept repeating the claim that I failed to give the county advance notice of intent to sue, but such notice was required only for monetary suits, which my suit was not.

A lawyer acquaintance of mine continues to argue that a core problem with many of the legal counsels of Bush is that they promote very dubious claims to the degree that their actuals are unethical.

The kicker to this piece suggests there was a moral angle to the dissent here, but the other reason does have bite in some controversies here. OTOH, something like that can be hard to define.


Your suggested debate, Bonnie, is probably best reserved for another thread about discrimination of AIDS victims specifically. THIS thread is about "group defection" being rare and, therefore, a remarkable story. As has been pointed out several times now (did you see the "UPDATE"?), my post was simply to prove it's not so rare after all.

Given that the government's position that the habeas corpus does allow foreign enemy combatants to challenge their wartime detention was the established law for the entire existence of the Great Writ before Rasul, such a position is hardly outside of the mainstream. Consequently, the dissenters at Justice appear to be violating their ethical duty to put aside their personal political views and zealously represent their client.


I just got through proving that DoJ has a long history of allowing attorneys to decline socially controversial cases "as a matter of conscience" -- group defections are O.K. and not rare at all -- you're killing me here ; )


I do not see how I am undermining your argument.

Justice and the ABA ethical rules can be contradictory. Justice may allow its attorneys to decline to work for their client - the United States - when it suits them, but such opting out appears to violate the ABA ethical rule to which the lead post cites.

Of course, if you are working for Justice, Justice rules trump the ABA.

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