Friday, August 31, 2007
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?
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