Like a spoiled and petulant child who has tattled on a sibling to Daddy to no effect, angry liberals who are mad that Bush Administration lawyers suggested it was legal to put a terrorist in a box with a caterpillar have decided to try the other parent to see if they get a more satisfactory response. By way of reminder, the DoJ cleared Yoo and Bybee last week of professional misconduct in connection with the issuance of the infamous “torture” memos which suggested that throwing neck-braced terrorists against fake walls might not be illegal. Ever content to parody themselves, outraged liberals offended at our very uncouth treatment of people who plot our national destruction have been busy demanding the heads of current law professor John Yoo and current federal appeals judge Jay Bybee ever since. Apparently, they now want the DC Bar and Pennsylvania Bar to take some sort of action against Yoo and Bybee:
The Justice Department may have concluded its ethical proceedings, but professional disciplinary authority over lawyers rests not with the Justice Department but with the state bodies that license lawyers to practice law.
Mr. Margolis acknowledged in his decision that “the bar associations in the District of Columbia (where Mr. Bybee is licensed) or Pennsylvania (where Mr. Yoo is licensed) can choose to take up this matter.”
Both should commence investigations without delay.
Of course, as everyone (most especially the Obama Administration) realizes, this course of action is preposterous and dangerous for the future of our country.
In the first place, as outlined by this excellent article by Chris Badeaux, it’s preposterous to go on a witch hunt against lawyers for the crime of rendering a legal opinion, simply because that legal opinion proves to be politically unpopular with certain sets of the population.
I’m going to talk about the obscenity of charging a lawyer with war crimes for doing research and writing.
Attorneys who work for the government — city, county, parish, State, Federal — are, aside from lower pay and the invective hurled at them by a broader range of society than the rest of us experience, no different from other attorneys. In their roles as counselors, they must advise their employer — the state — of the implications of its acts (whether current, past, or planned) so that the state may know its legal options going forward. The nature of writing a memorandum for a President or governor is no different than writing for a corporation or individual. It goes like this:
The client — President or CEO — asks for the lawyer’s opinion on a subject. Just for giggles, let’s say the subject is Can the Executive use extraordinary force on unlawful combatants captured during military conflict in order to extract information that could or would be useful to prevent mass-murder of American civilians? If so, (1) what is “extraordinary force” and (2) under what circumstances may it be used? It could just as easily be I wish to hire the following contractors, but the city for whom I’m working requires that a certain percentage of my work be done by minority contractors. Can I resolve this conflict by having minority contractors do a certain dollar amount of work, or must they do a certain amount of substantive work? In each case, the client has posed a question with a suspicion of the answer, a hope for an answer, but undeniably a need for the answer. The lawyer’s job, as counselor, is to answer that question honestly and to the best of his abilities objectively and accurately. Again, that is the core of his job.
His job is assuredly not to cry, Stop! Your question is beyond all bounds! I will have no part in it! A lawyer may not scheme with his client to help the client commit a crime. He may outline to a client what is legal and what is not. His job is to research the law, take the facts as known, apply the law to the facts, and then reach conclusions so that his client can act.
Lawyers advise. Clients act. In other words, a lawyer’s advice can only be part of the act if the client wills it — that is, the attorney’s liability is entirely out of his own hands. A soldier must disobey an order to commit a war crime because he acts; a lawyer is under no obligation to throw aside his laptop for fear that his boss will decide to ignore, or, worse, follow the arguments made in his memorandum.
Indeed. More to the point, the ridiculous hyperventilation directed at Messrs. Yoo and Bybee by people who haven’t the foggiest clue of these basic principles – and the politically-motivated witch hunt that has followed, will lead inexorably to the practice of defensive (read: bad) law. The Obama administration has (belatedly) realized this fact, and that is why any observer with half a brain can see that they are doing everything in their power to make this issue go away. In a rare exercise of foresight, it appears that someone in the Administration has posed the question, “Say, what’s to prevent people from going after our license if we, say, opine that it’s legal for the EPA to enact cap-and-trade without legislative authorization?”
This, however, is a point that is lost on the bungling left, who seemingly have no guiding star or principle other than being nice to people who want to kill Americans and destroy this country. And so, the witch hunt continues. The next move is in the hands of the state bar associations in question. As noted by Mr. Badeaux:
It’s a critical distinction, and one at the heart of why this obscenity should take the forefront in the collective mind of every State Bar association, and certainly in that of the otherwise toothless ABA. Here, it can make a difference, and should.
The Spanish government is about to charge five men with crimes against humanity for performing their duties as lawyers in the American legal tradition. Regardless of one’s position on the merits of the arguments, analysis, or memoranda created by the Bush administration officials at issue, the vast majority of the complaint appears to take issue with five of the six in their roles as counselors for the government (Mr. Feith was not employed as an attorney in the Bush administration). If the American Bar Association exists for anything, it exists to see to it that our elected leadership treats this as the insult that it is, as the direct assault on the practice of American law that it is. Its close association with the Democratic Party — whether its leadership likes to admit it or not — puts it in a perfect place to lobby the current President (a Democrat and lawyer), Secretary of State (a Democrat and lawyer), and Congressional leadership (Democrats and a lot of lawyers) to put aside partisan wrangling and protect American attorneys’ abilities to give good-faith opinions to their clients without fear of imprisonment.