Mukasey's Defense of Professional Irresponsibility
Don't ask Attorney General Michael Mukasey to speak at a graduation ceremony if you want a milquetoast speech extolling the virtues of community service, sun screen, or calls to your mother. He came to Boston College Law School, where I teach, last Friday and offered a substantive, and deeply troubling, message to our graduates.
I was among those on the faculty who criticized Mukasey's invitation. I did not want to offer a bully pulpit to a principal defender of the Bush Administration's discredited and embarrassing views on waterboarding.
His speech was more aggressive than I had feared. He went beyond the waterboarding controversy to offer a full-throated defense of those government lawyers who "provided legal advice supporting the nation's most important counterterrorism policies" after 9/11. He clearly included in his defense those Justice Department attorneys who authored the infamous 2002 "torture memo," which told the administration it was not bound by federal or international anti-torture law and defined torture so narrowly that it justified all but the most heinous interrogation techniques.
The villains in Mukasey's speech were opinion leaders outside the government - including academics - who have offered "relentless," "hostile," and "unforgiving" criticism of the torture memo authors and others on the administration's legal team. Critics are taking advantage of "perfect hindsight" and fail to recognize the "difficulty and novelty" of the legal questions facing the government at the time. Most current criticisms are "unaccompanied by any serious legal analysis" and some are "breathtakingly casual."
With a patronizing pat on our head, he says we just don't understand.
But our problem is not that we don't understand, but that we understand all too well the illegal conduct that has been perpetrated in our name. We understand that the legal arguments advanced in the torture memo were blatantly wrong, the product of shoddy research and thin analysis that failed to grapple with relevant authorities, let alone the best underlying principles that ground law and maintain its legitimacy. Rather than being the target of only "casual" critiques, the torture memo and others like it have been subject to withering analysis from virtually every legal scholar who has looked at them. Harold Koh, the Dean of Yale Law School and a former senior State Department official, called the torture memo "perhaps the most clearly legally erroneous opinion I have ever read." It was withdrawn by the very office that issued it, and the memo's primary author, John Yoo, is under investigation by the Office of Professional Responsibility in Mukasey's own Justice Department, on grounds that his analysis on the memo may have failed the minimum "professional standards that apply to Department of Justice attorneys."
Besides defending overly aggressive DOJ attorneys, Mukasey's second lesson for our graduates was more subtle but just as distressing. The task of a government lawyer, indeed any lawyer, is to "do law." Lawyers must give a "close reading" and "critical analysis" of text, and to "tune out" the "white noise" of criticism and second-guessing. He urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."
So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.
Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.
What I wish our graduates had heard from the nation's leading attorney was the importance of personal responsibility for not only the technical part of lawyering but the moral side as well.
Yoo has defended his work on the torture memo by saying that "the lawyer's job is to say 'this is what the law says.'" Now Mukasey is defending Yoo and his cohort with the same simplistic notion.
In doing so, Mukasey implicitly holds up as an example for our graduates some of the worst instances of professional irresponsibility by government lawyers since the DOJ infamously lied to the Supreme Court about the military need for the Japanese internment during the second world war. What appears to have happened in the early years of the Bush administration was senior government lawyers taking legal questions that were fairly easy - waterboarding is torture - answering them incorrectly using political ideology as their guide, and then avoiding responsibility by saying that they were merely "doing law."
It is sad that a graduation message by our Attorney General at this stage of our national history was essentially a call to the avoidance of responsibility. I only hope our students did not take the message to heart.
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Torture is Terrorism.
Professor Greenfield's review of the Mukasey speech and the Yoo, et al. memo(s) was academically stellar and typically understated. I think that if Professor Yoo had written that memo for Professor Greenfield or any other even marginal law school professor as a final exam, Mr Yoo would have failed the course and flunked out of school. The Yoo memo is not only technically wrong, it is not even defensible in the amoral world that we lawyers work in. The conclusions of Mr. Yoo have no substantive basis in the common law or statutes and would therefore be tossed out of court by any decent judge at first blush. Then Mr. Yoo would have been referred to the office of disciplinary counsel for consideration for discipline by the governing Supreme Court. Any judge, that is, except apparently Judge Mukasey. Which immediately raises the question of how he got confirmed to a lifetime position on the Federal Bench with such patently erroneous views of the law. Thank God Judge Mukasey stepped down to take the Attorney General's job, where he can only do damage for a few more months instead of the rest of his life.
Yes, and Yoo is not even troubled about what he wrote. He pretty much said the president is above any laws and treaties. There are no moral or legal constraints on the presidency in a time of warfare. What kind of crazy idea of democracy does Yoo have? His ideas are so close to totalitarianism and it seems to completely escape him.
Please, Please don't forget FEINSTEIN AND SCHUMER are the ones responsible for the approval of this guy.
I am sure the people at Boston College who invited Mukasey to speak . . . are white haired old men, pure dinosaurs. Out of touch with reality. Thank God their time is just about OVER. It can't be too soon for me. Thanks Greenfield, for at least protesting, I wish more people had the guts to do it.
"Once the law is articulated, your job is done."
May I suggest a slight revision, as follows.
"Once the law is disarticulated, your job is done."
Mukasey would say: "Once the system is rigged so that no one can be held accountable for his actions, your job is done."
Mukasey, Yoo,Addington the traitors behind the traitors Bush and Cheney.
These men are the greatest danger to American freedom today.
What can you expevt from Republican's?
Republicans put a "man" into the White House who has said the American Constitution is "Just a Goddamn piece of paper"
How Bush was elected after he said that I don't know.
I do know that republican McCain will bring more of the same and continue to destroy Freedom if elected.
Shame on Boston College. Having now established a precedent, next year the college might
consider inviting your common garden variety criminal to speak at commencement. Maybe give him/her an honorary degree too.
A simple statement of fact. If there is doubt that a procedure is not legally tortuous, then those that say they cannot define torture be put through the procedure to give them a clearer definition of torture.
Muckasey is very dangerous because he is highly intelligent. He can couch his evasions in legal reasoning and can not be pinned down. Everyone knew former Attorney General Gonzalez was a flunky. Mukasey gives the Bush illegalities some cover with his seemingly objective legal parsing. Congress now must somehow bypass him and enforce their subpoenas on Rove, Miers, and Dan Bartlett. Otherwise, Mukasey will have played a key role in the destruction of our system of checks and balances and our tripartite system of governance. Is this role what he wants his legacy to be?
I seem to remember German lawyers on trial in Nuremburg saying that they "upheld" the Nuremburg laws, because those were the laws that were on the books. That they had no choice. The lawyers that prosecuted under the Nuremburg laws said the same. Woo reminds me of that same chilling view of practicing law without any ideology. Law has to have a human ideological element-it cannot be practiced with cold calculation and no evolution. When it is, it ceases to become law and becomes dictatorial oppression.
In other words, I agree totally with your blog. You are right on. The Mukaseys and the Woos and the Stars of the world (and the legal world in particular) terrify me. I hope they are gone. Soon.
It would be a little easier to buy his "do the law" argument if anything upheld under him could, in even the most remote and twisted way, be deemed lawful or even, more technically but less precise, "what the law says".
And to complain that we all look back and despise his actions and breaking of the law in hindsight is ridiculous, when every competent military and civilian lawyer facing these documents prior to and following their taking effect denied them as containing any legal value.
IF YOU WANT TO BREAK UP THE MAFIA GO AFTER THEIR LAWYERS THEY HIDE ALL THE ILLEGAL INFORMATION!!!!!!!
Holy crap!
I am so sick and tired of these lawless fascist bastards!
Mukasey is the walking embodiment of what is referred to as the banality of evil to explain how otherwise mild-mannered professionals enabled and contributed to the Holocaust. The bland faceless bureaucrat that hides behind interpretations of law and its purpose to permit atrocities. He advocates, not blind justice, but justice blinded by being willfully obtuse to the spirit and meaning of law. He is like a Mafia lawyer who sees it as his job to interpret law in a fashion favorable to his client, not a public servant.
Mafia lawyers may usually be a little more flamboyant, but the phrase "banality of evil" is so descriptive in this case.
The fact is that many of those graduates will end up working for in large law firms, for corporations and for the rich and may have to suspend there personal morals for money. They will have to help corporations find ways to keep out unions, ship jobs to China, deny about pollution issues, do corporate and real estate deals that hurt the common citizen and so on.
I wonder if the students had any say in their speaker. I would have preferred someone like the Professor at Seton Hall Law School who is deeply involved with the other side of Mukasey, helping those alleged terrorists under illegal detention.
I say this with over 27 years of experience as a paralegal for several large law firms.
That lawyer is Mark Denbeaux. He was brilliant in his testimony to the Senate committee investigating Gitmo.
This is why we must get a democratic president in 2008. We cant afford as a country to appoint an attorney general like this clown or the last one. The Supreme Court appointees are the key in the next few years and we are in big trouble if McCain is elected. God Forbid !!! I am shocked that the Jesuits at BC would feel the need to insult their talented law school graduates with this less than inspirational jurist.
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