Legal Commentary

The folks at the Volokh Conspiracy have had a lot of valuable things to say about the tempest-of-the-week concerning Liz Cheney et al.'s ad criticizing the DOJ for not revealing more information about the so-called "Al Qaeda Seven," and criticizing the lawyers themselves for taking on this work.  These bloggers have been quite critical of the ad and its message.  Now sometime VC blogger Stewart Baker weighs in with his own partial defense of the ad, arguing that "this seems to be . . . a much harder question than the critics make it out to be," and concluding by suggesting that the fact that these lawyers, when in private practice, "sacrificed paying work" in order to turn possibly strongly held principles into law" tells us "something about the strength and content of their principles."  "Isn't if fair for Liz Cheney to ask whether the rest of the country shares those principles?" he asks.

I agree with Baker in one limited respect: one can fairly make of the broader questions here a harder question than the more caricatured versions of the arguments against Cheney and the ad suggest.  Rule 1.2(b) of the Model Rules of Professional Conduct says that "[a] lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social or moral views or activities."  That is emphatically true, and especially important, as the rule notes, in the case of representation by appointment -- or, one might add, cases in which a lawyer believes a client lacks access to appropriate representation and steps in to fill that void.  But it is not clear that the Guantanamo cases fill that description, since many people would step in to do the work.  Surely, then, we can -- not must, but can -- say something about the intensity of preference of the lawyers who took on those cases.  (Of course, that is true whether or not the work is paying work.  Since other lawyers would step in to represent, say, polluters or tobacco companies that deliberately concealed information about the carcinogenic properties of cigarettes, I suppose we can infer something from their willingness to take that work.  Right?)  Merely calling Cheney's ad shameful -- which I happen to think it is -- doesn't really take up the deeper questions raised by these issues, and we don't have to be satisfied by that answer.

But I still think Baker gets it wrong in a variety of ways.  For one thing, as I said, his argument that we can infer more from pro bono representation than from paid representation seems deeply flawed.  For another, Baker argues that these lawyers "represented avowed enemies of the United States -- for free -- because they thought it made them look good."  The problem is that some of these individuals were not avowed enemies of the United States, but individuals identified by the United States government as enemies of the United States. They contested that identification, and the point of some of this litigation was that there should be a proper forum in which they could do so.  Even if these particular individuals were avowed enemies, it might still be right to question what legal consequences should follow from this, not only for these individuals but for others who might not be avowed enemies.  Not everyone who makes a First Amendment overbreadth argument is secretly hoping to help child pornographers rather than amateur theater companies; they may actually believe that the broader principle they are arguing is important to protect other innocents as well as the party before the court. 

Moreover, there are all kinds of reasons why a lawyer might think such a case makes him look good.  Some are ideological, but some are economic: these are high-profile cases that make the press and give plenty of lawyers experience in federal court litigation with the highest stakes.  I actually think self-image plays a large role in white-collar firm pro bono litigation, and that this is not a good thing.  But we might at least acknowledge that the same economic motives we think of as unexceptional when law firms take on cases involving drugs that end up killing children, or cars that blow up, might be at play in these cases too.

Baker also places much stock in the fact that these lawyers 'sacrificed paying work and instead went to work without charge for people they loathed."  This, he suggests, must tell us something about what they really think.  But the individual lawyers may well have sacrificed no money at all as far as they were themselves concerned; the firm took on the pro bono representation, and they were paid the same amount either way.  And the same thing could be said about government lawyers, who do not forego pay altogether but certainly make a short-term sacrifice of financial reward.  Baker himself went to work for DHS for a time.  I'm sure he was able to monetize that experience; but are we to conclude (speciously) that he, and other government lawyers, are saying something about how much they really want to see the use of torture?  Baker might respond that Cheney is entitled to suggest that many people would prefer that to the pro bono representation of detainees, and to that extent I think he is right.  But I think most government lawyers, and most lawyers in general, would say that whatever popular preference might be, neither government lawyers nor defense lawyers must necessarily be seen as serving anything other than the same rule-of-law principles.  I would be curious to learn whether he thinks those sides are in fact serving different principles.

The final problem is that Baker is, quite frankly, rewriting history more than a little.  The Cheney ad conflated -- deliberately -- the question of whether the DOJ was obliged to reveal information about these lawyers' past representations with a sidewise attack on them as being, more or less, friends of terrorism.  To judge from the VC commenters, some people, rightly or wrongly, believe that lack of disclosure is a valid ground for criticism and need say nothing about the rightness or wrongness of this representation; and the Cheney group itself, and its defenders, were able to tack back and forth between these two issues, depending on which would prove more persuasive in which context.  Some of these people surely should take no comfort from Baker's argument, which boils down precisely to the assertion that this is not at all about disclosure or non-disclosure, and all about whether these lawyers actually love America or not.

P.S.: I call them the "Constitutional Seven," in the spirit of the distinction between the "nuclear option" and the "constitutional option," because it seems to me that the rhetoric of "Al Qaeda Seven" is quite deliberative and nasty, and "Constitutional Seven" is equally accurate.  In both cases, however, I think letting anyone's conclusions rest on a label is deeply silly.