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.

Comments

[ssb752]

Ah those old days when government service was the high road for an attorney, for your client was the constitution and the citizens that give it life. It was those in private practice that had to balance their conscience with their law practice based upon lying, deceit and a win at all costs approach. Program! Program! You can't tell the public from private without a Program! Hey, Hans Frank! How's that AG gig going for ya?

[faust2001]

"The first thing we do, let's kill all the lawyers."---William Shakespeare

[Eoin45]

This one is always dredged up on these occasions. I hate Mukasey and his ilk but I've had at least one lawyer give me lots of valuable help pro-bono. I have a personal freind who is a judge dedicated to helping juveniles. There are plenty of good ones out there. And faust2001, if we do as you say, who will defend you if you are unjustly accused? And don't say it couldn't happen.

[Durango]

You kill all the lawyers in order to institute repression.

It is a facist statement.

[JiminNC]

Muck Fukasey!

[fourex]

Why didn't they walk out? Mukasey's job is to uphold the law not make law.

[nyboomer]

Mukasey's job is to uphold the law???? Which law?? The one that says that GW Bush is a dictator not an elected public official? Is that the law he's upholding?

Like all right wingers he believes that laws are what citizens must obey, not the power elite. The ruling class lives and acts lawlessly.

[TXfemmom]

Mukasey is the legal version of Joe Lieberman.

[steven]

So Muk boy is kissing Hagee ass too?

[naschkatze]

It's sad to see Mukasey invited to give the commencement address at Boston College. There was probably not one protester either.

[TonalCrow]

Fortunately, there was plenty of protest against the invitation prior to (and at) the speech.

http://www.eagleionline.com/news/2008/5/23/faculty-and-students-distribute-memo-on-waterboarding-at-gra.html

http://www.boston.com/news/local/articles/2008/03/23/some_at_bc_seek_to_uninvite_mukasey_from_commencement/

[HST]

The students should've brought/held up signs that said, "enforce congressional subpoenas" or "uphold the constitution" .

[Deidroni]

Mr. Greenfield,

Thank you for the good article about Mukasey.

He is like Gonzales- a lackey but an articulate lackey.

[psk]

What a pitiful excuse of a lawyer Mukasey is, and to think he is our country's top one. Sounds to me like he was not only very busy making excuses and covering up for obvious abuses of the law by this administration and its employees, but also encouraging our newest grads to do the same.

Just because everyone (so it seems at least) in this administration is doing it, does not make it right.

If everyone else on the highway is doing 75 in a 65 zone, still does not make it right even if I do it too.

[pamelagoodenough]

Throw out Feinstein and Schumer who made his succession to Alberto the pimp possible.

[zippywpinhead]

I only hope that the graduates were smart enough to recognize the speech as the load of unadulterated BS that it is...

[Fez]

It's hard to imagine that the public opinion of lawyers could drop any lower, but Mukasey is doing a "heckuva job" at making attorneys look like morons and criminals. Of course, most attorneys ARE morons and criminals so maybe we should thank Mukasey for focussing the public's gaze on what these people actually do. Until someone (not Obama or Clinton, both of whom are attorneys, married to attorneys) cleans out the Augean stable in DC that is choked and clogged with attorneys, we are unlikely to see any improvements in our political discourse.

[outnow]

The laws of physics, too, have changed since 9-11. Building just fall down and constitutional rights disappear.

[antenna123]

Mukasey is a Zionist.

[chriss0114]

To be a "government" attorney, one must sell their soul and engage in illegal and unethical activities.

MuKasey supposedly was respected. I guess he just blew that.

[PKSSK]

The bigger disappointment is the direction that catholic colleges are taking with limiting free speech to only those who believe in the political and religious ideology that serves their catholic teachings best, which is the right wing mentality that has brought us all a facist government that ignores habeas corpus and human rights for all!!!

[dadw5boys]

By suspending the 4th Admendment you get to accuse but never face a court to prove those charges. Hold and torture till your hearts desire.