Legal Commentary

More on Liz Cheney

By Stewart Baker

Eugene and Jonathan and a host of others have joined in defending the pro bono work that some Justice lawyers did for Guantanamo detainees. To me, though, this seems to be a much harder question than the critics make it out to be.

To start with, some of the arguments in favor of the attorneys don?t hold water. No one had to work for free to make sure the detainees had a right to counsel. Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government. Nor did anyone have to work pro bono to even up a mismatch in power and resources. The military prosecutors are JAGs ? and pretty much indistinguishable from the military defense counsel on the other side of the courtroom. It was, by and large, a fair fight.  If you think the weight of government resources (such as they are in deficit-strained times) makes the fight less fair, I would note that, unlike practically all other criminal cases pitting government against defendant, there were government resources on both sides of the detainee fight. Kuwait, for example, reportedly funneled millions of dollars into both legal and public relations help for its detainees.

Of course, I agree completely that it?s not fair to simply conflate the views of lawyer and client. But even so, I would argue that, unlike paying clients,  pro bono work does tell you something about a lawyer?s views.

Here?s why.  As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you?ve got a wide choice of pro bono cases, it?s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You?ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you?ll take cases that make you and your firm look good.

It seems to me that this is exactly Liz Cheney?s point. These are lawyers who represented avowed enemies of the United States ? for free ? because they thought it made them look good. If you don?t share that view, she?s saying, maybe you don?t share their other views about how the justice system should handle terrorism cases.

Cutting against this analysis is the argument that lawyers often defend even unpopular and unlikeable clients in order to preserve an important principle.  In that well-worn narrative, lawyers bravely stand against the tide of popular opinion to vindicate a principle, not to help a particular client.  But does that trope really apply to these representations? How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that?s pretty much what?s at stake in the detainee cases. It?s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you?re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts. The precedents set in these cases will, as a practical matter, apply almost exclusively in a swatch of Cuban scrubland ten miles square.

But put that aside.  I don?t doubt that many of the pro bono lawyers for the detainees saw themselves in exactly that light ? they intended to vindicate principles they valued, and not to give comfort to the defendants.  We can still learn a lot about a lawyer who takes a case on that basis.  Almost by definition, issues that split the Supreme Court can be argued either way. But these lawyers felt so strongly about these arguable principles that they sacrificed paying work and instead went to work without charge for people they loathed ? just to turn their principles into law. Doesn?t this tell us something about the strength and content of their principles? And isn?t it fair for Liz Cheney to ask whether the rest of the country shares those principles?

Full post as published by The Volokh Conspiracy on March 09, 2010 (boomark / email).