Balkinization: A False Analogy: Detainee Lawyers and Torture Lawyers

A False Analogy: Detainee Lawyers and Torture Lawyers

David Luban

Today's news brought two op-eds making the same bad argument and drawing opposite conclusions. The argument is that anyone who criticizes the DOJ lawyers who wrote the torture memos, but rejects criticism of current DOJ lawyers who once represented detainees, is a hypocrite.

One op-ed, by former Attorney General Michael Mukasey, supports both sets of lawyers, and denounces the Liz Cheney "Keep America Safe" conspiracy theories about them. The other, by Washington Post columnist and torture cheerleader Marc Thiessen, enthusiastically backs Cheney's character assassinations. For Mukasey, criticizing either set of lawyers "is all of a piece, and what it is a piece of is something both shoddy and dangerous" -- criticizing lawyers for the arguments they make on behalf of clients. Thiessen, rejecting the charge that Cheney's group are McCarthyites, asks "Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury, and others came under vicious personal attack?" Thiessen has no use for moral equivalence: for him, torture lawyers are good and detainee lawyers are the equivalent of mob lawyers. But, like Mukasey, he sees a parallel between the two sets of criticisms, and agrees that those who criticize the torture lawyers but not the detainee lawyers are using a double standard, probably for illicit political reasons.

That would include me, since I called the Cheney attacks McCarthyism and have criticized the torture lawyers for years.

But in fact, the parallel is completely bogus. What makes the Cheney attacks McCarthyism is guilt by association, wrapped in innuendo, and cynically appealing to paranoia: Because you represented a detainee, you very likely sympathize with Al Qaeda, and we need to smoke you out.

Nobody ever criticized the torture lawyers because of who they represented, and nobody questioned their loyalty. The criticisms were on three completely different grounds: first, that they made frivolous arguments to get around the law; second, that they violated their ethical and constitutional obligation to give candid, independent advice to the president; and third, that they facilitated a misbegotten plan to torture captives. My own writing focused on the first two arguments; other critics focused on the third. Obviously, many people reject these criticisms on the merits, but that isn't the point. Whether the criticisms are right or wrong, they don't traffic in guilt by association, they don't blame lawyers for who their clients are, and they don't hint at treason.

There is simply no parallel between criticizing lawyers for violating the law and assassinating their characters for representing the "wrong" clients. (To be clear: I am not objecting to Mukasey's defense of the current DOJ lawyers. His willingness to put his considerable authority on the line deserves applause. I'm objecting only to his "moral equivalence" argument.)

And, speaking of McCarthyism: Thiessen approvingly cites Andrew McCarthy's fatuous argument that there is no "great American tradition in which everyone gets a lawyer and their day in court," because the Sixth Amendment right to counsel applies only to persons accused of crimes. Forget John Adams and Kenneth Royall, not to mention the tens of thousands of lawyers who do pro bono work because of the great American tradition that McCarthy seems not to have heard of. On MCarthy's and Thiessen's logic, there is no great American tradition of helping people in need, because people in need have no constitutional right to it. (Actually, even the constitutional point is wrong: the Supreme Court has held that in some circumstances, the Due Process clause guarantees counsel to people in non-criminal matters. Those circumstances are that the person's legal interest is a vital one, the risk of error without counsel is high, and the government interest in denying counsel is small. That pretty much describes the situation of the detainees.)

Posted 8:55 PM by David Luban [link]