Thursday, March 11, 2010

Red Baiting

By Mike Dorf

It was refreshing to see that prominent conservative lawyers have condemned the effort by Liz Cheney's "Keep America Safe" to smear Justice Dep't lawyers who had previously represented Guantanamo Bay detainees as the "Al Qaeda Seven." As various lawyers quoted in the story noted, the legal system cannot function effectively without lawyers and there was nothing unpatriotic about the representation these lawyers formerly provided. Indeed, quite the opposite case can be made--that the lawyers who gave their time and risked their reputations did so precisely because they wanted to stop what they regarded as (and what the Supreme Court ultimately agreed was) the abandonment of cherished constitutional principles.

That said, and recognizing that Cheney's insinuations were outrageous, a prospective government lawyer's past representation of clients might raise real issues. Consider an analogy. Suppose that a President is trying to decide whom to name to run an important agency with regulatory authority over some industry and that one of the leading candidates has spent a substantial portion of her prior career working within that industry. On the one hand, this clearly has advantages; the work done within the industry gives the candidate knowledge of the business and connections that could facilitate her work for the Administration. On the other hand, even assuming that the candidate will sever ties to former firms and will work solely in the public interest, the past experience may lead the general public to worry that the candidate's world view will be too close to that of industry. Reasons of this sort are routinely advanced as objections to regulators chosen from the ranks of regulated industries.

Are lawyers very different? In part, yes. We have professional standards of zealous advocacy that make a lawyer's representation of a class of clients not especially informative of the lawyer's actual views on policy questions. We learn less about a lawyer's views on the wrongfulness of murder from the fact that he represents indigent capital defendants than we learn about a prospective regulator's views about the costs and benefits of pollution control from the fact that the prospective regulator formerly was an executive for an oil company with a history of regulatory violations. A lawyer's past jobs are a weak proxy for her present views, even with respect to the conduct of her past clients.

Federalist Society co-founder David McIntosh was thus expressing a partial truth when he asked (as quoted in the NY Times story): "Was the person acting merely as an attorney doing their best to represent a client’s case . . . or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"

That question still doesn't drill deep enough, however, because much depends on the nature of the "political or personal agenda." Representation of Gitmo detainees based on a personal agenda to advance the cause of global jihad would be a very good basis to keep someone out of the Justice Department. However, an agenda to ensure that all persons held captive by the U.S. receive due process is perfectly compatible with later government service. Indeed, it should count as a qualification. What makes the Cheney hyperbole so preposterous is that the agenda at issue for each of the "Al Qaeda Seven" was so obviously of the latter, due process sort.