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The DOJ Seven

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Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions:  Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism.  Initially, it is my understanding, the Department refused, but since has provided seven names.  Keep America Safe now designates these as "the al Qaeda Seven."  For the reasons that follow, I think that designation is unfair on the present record  --  but that doesn't mean raising the issue was unfair.

In the Wall Street Journal op-ed to which Kent refers, former Attorney General Michael Mukasey, a man of uncommon decency and honor, says this:

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility--whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior.

My friend Paul Mirengoff on Powerline observes:

The Keep America Safe ad provided a service by pressing the administration to identify the DOJ lawyers who performed legal services for those detained as terrorists. Doing so served the objective, endorsed by Mukasey, of assuring that government lawyers don't bring to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility.

But the ad went too far because, by calling the DOJ lawyers "the al Qaeda Seven" (among other statements), it automatically identifed the attorneys with their former clients and suggested that the attorneys can be regarded as a fifth column for al Qaeda within the Justice Department.

I agree with that, but I don't view it as the end of the story. Prosecutors, like other professionals, are more likely to do a good job when they enthusiastically believe in what they're doing.  Lawyers who have defended  al Qaeda members and supporters inevitably have filed, and signed their names to, briefs that claimed, falsely yet indignantly, that the system is rigged to convict people who are merely "in dissent."  Personally, I would not write or sign a brief containing what I thought were false assertions, and the notion that al Qaeda is merely "in dissent" is as false as they come.  The real test for professional ethics, in my view, is not how much you can get away with under the rules.  The test is whether you would be proud to tell your children about what you did that day.

So there are two possibilities. The first is that the DOJ Seven actually, personally believed what they were writing, in which case they shouldn't be anywhere near DOJ (one Van Jones per administration is enough).  But that possibility has not been proved, and cannot be accepted unless it is.  The second is that they didn't believe it, in which case they are engaged in a moral disconnect which is accepted by standard canons of ethics, but which I view as somewhere between schizophrenic and less than fully straightforward.

Adults cannot just blandly walk away from responsibility for what they spend their waking hours seeking.  This is so even if they are only seeking it in a representative capacity.  The canons properly insulate you, as the attorney, from blame for what your client does, wants and believes.  Whether they insulate you, as a human being, from the result you strive to bring about, is a different question.   


 

2 Comments

These were not criminal defendants with defined and accepted rights. They were enemy combatants being held in a time of war. These activist lawyers used the federal courts as a tool to brake new legal ground on behalf of our enemies. In so doing, they undermined our military's ability to keep our nation safe.

A far cry from representing a single, unpopular defendant who posed no risk to the country at large.

As usual, mjs makes a good point. Members of al Qaeda are far from just the next entry on the police blotter. They are, as mjs states, less criminals than jihadists (although they are, in my view, criminals of a sort, namely, war criminals for intentionally targeting the civilian population).

However ill-advisedly, the Supreme Court has ruled that they are entitled to challenge their designation in civilian court via habeas corpus.

I am among those who believe that the rights designed for American criminal defendants ought never to have been extended to jihadists -- rights starting with Miranda. But since the Court has permitted these habeas challenges, the road was paved for pro bono counsel to appear. It is tempting, and probably inevitable, to wonder why volunteer counsel have chosen these clients in particular, as opposed to dozens or hundreds of other clients and causes where civil rights are at stake.

That said, I think it misguided to assume, in the absence of concrete evidence, that counsel volunteering to assist in these habeas cases share the aims of al Qaeda. But they would do well, as I suggested in my entry, carefully to consider what result would ensue if they were to succeed in their litigation. Returning al Qaeda terrorists to the field of battle (which could be your next flight, or mine, or anyone's) will undermine our ability to, as mjs says, "keep our nation safe."

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