Does Law Have a Double Standard
panelist seek balance between security and liberty
At an October symposium born of the controversy surrounding last year’s selection of US Attorney General Michael Mukasey as BC Law’s commencement speaker, panelists examined the competing imperatives of national security and civil liberties and the lawyer’s role in creating the balance between them. The subtext of the event, provocatively titled “The Pen, the Sword, and the Waterboard: Ethical Lawyering in the Global War on Terrorism,” was even weightier: whether lawyers have a responsibility to provide the moral underpinnings in our society.
The ten judges, scholars, veterans, and military and government lawyers who spoke during the three-hour session in the Law School’s East Wing wove together Shakespearean quotes and historical references to make their various cases. The Honorable William Young of the US District Court of Massachusetts took the lectern with a dramatic flourish:
At what point shall we expect the approach of danger? By what means shall we fortify against it?—Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never!—….At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher.
Judge Young used Lincoln’s words to underscore the challenges facing the American legal system since September 11, 2001. He expressed regret and anger that important civil liberties have been marginalized as a result of the nation’s war on terror.
Many of the panelists took exception to the Attorney General’s assertion that the government lawyer’s role, indeed any lawyer’s role, is simply to advise the client on the parameters of the law. At commencement, Mukasey told the graduates that they should “do law” even at times “when you will have to advise clients that the law permits them to take actions that you may find imprudent, or even wrong.”
Most of the participants could not divorce Mukasey’s statement from his context. He has been criticized for refusing to answer the question posed at his confirmation hearings: Is waterboarding considered torture and therefore illegal? In condoning waterboarding, the Bush Administration had relied on a Department of Justice legal memorandum that has since been discredited. Critics argue that the so-called “torture memo” relied on faulty legal analysis to reach a politically motivated conclusion.
At the symposium, which was organized by the Boston College International & Comparative Law Review with the help of Dean John Garvey, speaker after speaker emphasized that the law is not a mere tool to obtain desired political results and that lawyers are not mere technocrats. BC Law Professor Kent Greenfield argued that it is necessary for moral reasoning to accompany legal reasoning. “We are not plumbers or bookkeepers,” he said, making the point that good lawyering requires more than the technical application of learned skills. Andrew Tarsy, who was fired, re-hired, and ultimately resigned last year as New England Regional Director of the Anti- Defamation League because of his opposition to the ADL’s refusal to recognize the Armenian genocide, asked the audience to consider the greatest judicial opinions. Each one, he said, “could not have come from ‘doing law.’”
Professor Gabriella Blum of Harvard Law School and a former military advocate in the Israeli Defense Forces, changed the tenor of the debate and came closest to agreeing with Mukasey when she asserted that lawyers are not policymakers, nor should they be. She thus seemed to support the idea that lawyers should stick to doing law.
Declaring that “it’s only legal advice,” Blum suggested that lawyers offer blueprints for decision makers to use in considering the courses of action available to them, not shields to hide behind in creating governmental policy. Just because something is legal, she said, does not mean it should be adopted as policy. Conversely, there are times when leaders may feel compelled to take action that may be unlawful in order to protect the national interest. Her implied criticism of the Bush administration was not that it may have broken the law in the midst of a national security crisis but that it refused to stand squarely behind its decisions, preferring instead to hide behind questionable legal opinions.
Many of the panelists were dismayed that the legal analysis that resulted in the use of interrogation techniques proscribed by US and international law lacked intellectual rigor and sound scholarship. Some expressed anger that the rule of law was not respected and blamed lawyers themselves for subverting it. Dean John Huston of Franklin Pierce University Law Center railed against lawyers “too clever by half [who] have pulled us down.” Unlike other wars in our history, he said, this war on terror is against enemies who don’t want the war to end.
As if echoing the fear expressed in Abraham Lincoln’s speech, Huston added, “What we’re doing to ourselves is a victory for them.”
—Marlissa Briggett ’91