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.


Hashim said...

I think you're drawing a false dichotomy -- why is the only motive that can be criticized a naked desire to aid al Qaeda? Why isn't an ideological predisposition among DOJ attys in favor of what other citizens view as *excessive* DP rights permissible cause for concern among those citizens about how DOJ will be run in the future?

Consider the ideologically converse situation. Let's say the next Republican president staffs the Civil Rights division w/ numerous attys who took pro bono cases designed to gut civil rights laws. Under your dichotomy, liberals could only legitimately complain if those attys took their prior position because of animus against minorities, rather than based upon what liberals view as an *excessively* narrow ideological view of the proper scope of federal civil rights power and the rights of non-minorities. I highly doubt you actually believe this -- would you really not criticize the President for nominating a Civil Rights head who'd argued in a pro bono case that Section 5 was unconstitutional (and, further, would you really criticize liberals who did criticize the President in this way)?

In my opinion, just as liberals can be concerned that conservative lawyers' past pro bono cases reveal an excessive regard for the rights of non-minorities in civil rights cases, so too can conservatives be concerned that liberal lawyers' past pro bono cases reveal an excessive regard for the rights of suspected terrorists.

Michael C. Dorf said...

Hashim, you misapprehend the point of my dichotomy. I was not saying that ALL commitments to as much due process as one can possibly imagine are problematic. I acknowledge that I am tacitly accepting that the level of due process favored by these particular attorneys is not excessive, or is at least within the bounds of reasonable disagreement. I would say the same thing about some more restrictive views with which I disagree, though not about all such extreme views that you posit.

The reason I drew the distinction I did is that McIntosh's use of the phrase "political or personal agenda" is ambiguous.

Charles T. Wolverton said...

Hassim purports to be making a reasonable point about consistency of principle, and IMO reasonable people should concur. Unfortunately, the point is effectively lost in a dishonest presentation.

"why is the only motive that can be criticized a naked desire to aid al Qaeda?"

There are two separable issues entwined in the present exchange: the despicable video from KeepAmericaSafe (sic) and how past involvement with issues relevant to a proposed government appointment should be weighed. Hassim purports to be addressing the latter - the issue treated in the bulk of Prof Dorf's post - but this quote injects an irrelevant reference to the former, suggesting thereby that critics of the KAS video have expressed the ridiculous position stated. None I have heard/read have done so.

"attys who took pro bono cases designed to gut civil rights laws"

Agreed that to be real, "principles" must be consistently applied. However, the implicit comparison is between attorneys about whom, as far as I know, little more has been publicly revealed than that they had some roles in representing Gitmo detainees, and attorneys described as having taken "cases designed to gut" civil rights laws. In the abstract, the latter attorneys should be accorded the same presumption of objectivity as the former. However, the inflammatory "cases designed to gut" civil rights laws, instead of, say, "cases challenging" those laws suggests to me some fairly transparent psychological gamesmanship - an insult to readers' intelligence. And to follow by questioning Prof Dorf's consistency in the face of the stacked comparison IMO adds "injury to insult".

"conservative lawyers' ... excessive regard for the rights of non-minorities in civil rights cases" and "liberal lawyers' ... excessive regard for the rights of suspected terrorists"

In one sense (presumably unintended), there is a notable equivalence - both involve prejudice against minorities. But to see if there's a true analogy, it is important to compare "excesses" in the two situations against a common baseline. In the former situation, the hypothesized complaint is that "conservative" lawyers want to lower an arguably already relatively low baseline; in the latter, the hypothesized complaint is that "liberal" lawyers want to raise an even lower - arguably nonexistent - baseline. Hence, even ignoring the imprecision of any term like "excessive", the symmetry implied in the comparison seems patently false.

If one wants to highlight inconsistency of principle by "liberals", I suggest simply pointing to Glen Greenwald's blog (at He is a "liberal" who routinely castigates Obama supporters for precisely that behavior - only he has done it honestly and knowledgably, and therefore credibly.

Hashim said...


I'm not sure why it matters whether the DOJ attorneys' prior pro bono positions were within the "bounds of reasonable disagreement." If Liz Cheney believes that policy-wielding Govt lawyers hold reasonable, but legally erroneous, positions that she believes endanger American citizens, why can't she criticize the Administration for hiring such people? The mere fact that a position is "reasonable" doesn't mean that opponents of that position can't bemoan the fact that policy-wielding officials hold that position and can't try to pressure the Administration to hire different officials. Surely you don't think that that mere fact that it's "reasonable" to oppose cap-and-trade should bar proponents of cap-and-trade from objecting if it turned out that the current policy-makers in DOE had vigorously advocated against cap-and-trade in their past jobs.

It seems to me that the only way DOJ attys are any different is if one believes that a credible inference about personal policy preferences can't be drawn from pro bono representation. Regardless of whether that's even true as a general matter, I think it's obviously ridiculous w/r/t representation of Guantanamo detainees -- do you really believe that even a single one of those attys didn't believe in the underlying correctness, widom, and justice of the legal positions they were advocating, at least as a matter of first principles? And, if they did, I think that citizens have every right to be concerned that people holding such beliefs are now wielding policy-making power in the DOJ, whether or not their beliefs are "reasonable."

Michael C. Dorf said...

Hashim: The reason it matters whether the views are within reasonable bounds is that, as members of both major parties have long recognized, Presidents may legitimately staff the executive branch with people who broadly share their ideological dispositions. John Yoo, quoted in the Times story on Liz Cheney, put it this way: “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor. He can and should put people into office who share his views.” Exactly. If the views of the staffers--as directly revealed or inferred from their past positions--go well beyond those of the President into the realm of the unreasonable (or simply well beyond the President's), then it's fair to complain about the views of the staff. Otherwise, one is simply confusing the issue and should instead say that he or she disagrees with the President's policy.

Hashim said...

Mike: That's a fair point, but I still disagree. Whether the President actually exercises his undoubted prerogative to appoint like-minded officials is itself a matter of public concern: it alerts the public as to whether the President's positions might be moderated in part by officials holding at least some diverging views shared by the dissenting portion of the public. Especially when it's incredibly difficult to know the actual policy positions taken by the Administration -- since so much terrorism policy is classified or undisclosed -- whether or not the President has chosen fellow travelers is one way for non-Obama supporters to determine just how bad the Administration's policies likely are in practice.

In addition, although you quickly slipped in a parenthetical that, on your view, the question is whether the officials are unreasonable *or* well beyond the President's position, the latter, in my opinion, is a significant flaw with your theory. Under your view, if one thinks the policy-making officials actually implementing the law are way in left-field, but potentially in the ballpark of the President on at least some issues, one has to go through the President's public positions and only criticize the officials for the positions that go well beyond the President's, and instead criticize the President for the remainder. That seems rather convoluted, when the actual concern is about the official's implementation of policy, not the President per se.

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