The Declarer (Floyd McWilliams' Blog)

Monday, February 14, 2005


Much of Slate magazine -- the part of it not yclept Shafer or Kaus -- is half-assed and smug, but even so it would be difficult to find a more incompetent and incurious piece than "Selling Indulgences" by one David Luban. Luban issues a pro-forma condemnation of Lynne Stewart, recently convicted for helping the Blind Sheik Omar Abdel Rahman carry out terrorism while serving as his attorney. This event serves as a springboard for Luban to note:


The jury concluded she was deceiving herself and that she had crossed the line from zealous advocacy to criminal conduct.

Ironically, one could offer the same assessment for the "torture lawyers"—the cabal of attorneys advising the Bush administration on the legality of U.S. interrogation policies—including former White House counsel Alberto Gonzales, vice presidential counsel David Addington, Justice Department lawyers Jay Bybee and John Yoo, and Pentagon counsel William Haynes.


Uh huh. It makes one wonder what leftists did with themselves during the decade after the Cold War when they had no moral equivalence to snivel about.

Luban's aura of moral superiority is impressive:


However, Gonzales, Bybee, and their crew crossed a different ethical line. They were not acting as courtroom advocates but as legal advisers, with a different professional standard to which they needed to adhere. Model Rule 2.1, titled "Advisor," provides that "a lawyer shall exercise independent professional judgment and render candid advice." Legal advisers must play it straight, even where the "[l]egal advice [may] involve[] unpleasant facts and alternatives that a client may be disinclined to confront." Independence means saying what the law is—as mainstream lawyers and judges understand it—regardless of what the client wishes it to be. Candor requires lawyers with eccentric theories to warn their clients whenever their legal advice veers away from the mainstream. The torture lawyers betrayed both these principles with the advice they gave the White House.

In the "Bybee Memo," for example, candid advice demands that when you discuss the "necessity defense" to the crime of torture, you mention that the defense has always been a loser in federal court. In the case of a later OLC memo by now-Harvard law professor Jack Goldsmith on the Geneva Conventions, candor means forthrightly reminding your client that Geneva forbids coercive interrogations—not burying this unwelcome point in a vaguely worded footnote.


But as for his facts ... let us follow the link to Geneva Convention Article 17, which states:


No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.


Sounds damning ... but scroll up to Article 4:


A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.


None of these categories describe terrorists who wear civilian clothes, hide amongst non-combatants, use places of worship for refuge, and feign injury or death to gain an advantage over their opponents. If the United States felt like lining terrorists up against a wall and shooting them, such an action would be perfectly legal.

The first three-quarters of Luban's article do at least represent an attempt at argumentation -- an attempt that is undermined by Luban's apparent belief that his pair of deuces is a rhetorical ace-high flush, but an attempt nonetheless. At the end of the piece Luban's train of thought jumps the tracks completely. He makes weird references to evil figures from the Renaissance in an attempt to make their slime stick to Republicans:


But what happens when the client doesn't want candid advice? When the client says, in effect, "Give me a legal opinion saying I can do what I want to do"? Lawyers confront such requests every day—but if the lawyer does the client's bidding, she has crossed the fatal line from adviser to accomplice. No longer an adviser or advocate, the lawyer now becomes an absolver or indulgence-seller. There is some historical precedent here—Martin Luther launched the Reformation because early-Renaissance popes were selling papal dispensations to sin along with indulgences sparing sinners the flames of hell or a few years of purgatory. Rodrigo Borgia once arranged a papal dispensation for a French count to sleep with his own sister. It was a good career move: Borgia later became Pope Alexander VI, while Jay Bybee merely ended up on the Ninth Circuit Court of Appeals.


Don't hold back! Tell us how you really feel!


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