Wall Street Journal (3.10.10)

Why You Shouldn't Judge A Lawyer by His Clients

It's wrong to criticize attorneys who represent alleged terrorists.

By MICHAEL B. MUKASEY

Over the past several years lots of boiling ink and flaming breath have been expended attacking lawyers who took legal positions or represented clients that were or became unpopular. The attorney who represented Bernard Madoff, for instance, was subjected to, among other threats and condemnations, messages expressing regret that his family had not been killed in the Holocaust.

More recently, we've witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.

Most recently, lawyers now employed at the Justice Department who, while in private practice, volunteered to represent suspected terrorist detainees, or argued legal positions supporting various rights of such detainees, have been portrayed as in-house counsel to al Qaeda.

This is all of a piece, and what it is a piece of is something both shoddy and dangerous. A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe. And a lawyer who undertakes to represent someone whom his neighbors—perhaps rightly—revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil's Island for little more than being Jewish.

Political disagreements with the Bush administration fueled and still fuel much of the intensity underlying attacks on Messrs. Yoo and Bybee. Similarly, I believe the results achieved by lawyers representing Guantanamo detainees have had a good deal to do with the criticism of them.

I think the Supreme Court decided wrongly in several key cases regarding the war on terror and our national security. They include Boumediene v. Bush (2008), in which the Court found insufficient protection for Guantanamo detainees that had not yet been put to the test, and Hamdan v. Rumsfeld (2006), in which the Court applied to detainees a provision of the Geneva Conventions that was intended to apply only in civil wars on the territory of a signatory to those Conventions. While I disagree with the Court's decision in these cases, I stop well short of blaming the outcome on lawyers who argued successfully.

I agree that lawyers who, like the head of one self-described public interest organization, threaten to achieve their desired outcomes by overwhelming the courts with thousands of lawsuits in behalf of detainees, or those who adopt publicly the agendas of their clients, deserve every bit of condemnation they get.

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.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.