Federal Judge Trashes the Legal Profession for 'Antipathy' Toward the Military

He thinks lawyers take pro bono work and challenge government policy as ways to act out against the armed services. How many other judges share his extreme views?

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Library of Congress

It wasn't just what 2nd U.S. Circuit Court of Appeals Chief Judge Dennis Jacobs said last September, but how he said it.

Angry that his colleagues on the federal court had refused to overturn a controversial procedural ruling in an important terror law case, the Chief Judge railed instead in dissent at the men and women, the lawyers and clients, who had brought the closely watched civil rights lawsuit in the first place. In Amnesty International v. Clapper, a case about the power and authority of the government to spy on its own citizens, a case now on review at the United States Supreme Court, Judge Jacobs wrote:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable.

As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, Counsel's and Plaintiffs' only perceptible interest is to carve out for themselves an influence over government policy -- an interest that the law of standing forecloses.

Fighting words! What in the world had the lawyers and clients done to earn the wrath of the decorated appointee of George H.W. Bush? What in the world was the case about? Treason and treachery, no doubt. Alas, no. The case was (and is) about something very sober and important. Here's how 2nd Circuit Judge Gerald Lynch put it in the first paragraph of his opinion, explaining why the federal appeals court would permit the lawsuit to proceed, for now, because the plaintiffs had, indeed, established their "standing" -- the legal right to sue. For the appellate panel, Judge Lynch wrote:

Attorneys, journalists, and labor, legal, media, and human rights organizations brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008... Section 702 creates new procedures for authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence.

The plaintiffs complain that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers because they "allow[] the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents (some internal citations omitted).

Chief Judge Jacobs' visceral anger -- over a case raising profound constitutional issues brought by some of the nation's most influential civil rights attorneys -- mirrored the most disgraceful Bush-era attacks on the tradition of pro bono work. And it immediately generated a response from civil libertarians. Jonathan Turley, the law professor, called Judge Jacobs' rant "inflammatory and unprofessional." Glenn Greenwald, the fearless analyst formerly of Salon, called it "one of the most intemperate, childish, nakedly ideological, and just plain obnoxious judicial outbursts you will ever encounter in writing."

THE ANGRY DISSENT

As I mentioned on Friday, one of the unintended consequences of last week's series on the Supreme Court and the military is that it has brought me in touch with lawyers, military officials, advocates, and others who pay a great deal more attention than I do to the relationship between the military and the legal establishment. On Tuesday, one of these new contacts, Gregory Wilbur, graciously clued me in to a 2009 speech by Judge Jacobs, one which he gave at Cornell Law School long before he was asked to rule on the constitutionality of the latest iteration of the Foreign Intelligence Surveillance Act.

Here is the link to the Cornell Law speech. It's a reckless bit of writing -- and beyond the mainstream of judicial thought. On the other hand, it surely explains everything we've read from Chief Judge Jacobs in the subsequent surveillance lawsuit. Indeed, the Chief Judge delivered a very similar speech one year later, in November 2010, at a Federalist Society function -- a captive audience, you might say. But I wonder instead what those Cornell Law School students were thinking when they sat there that day, wet behind the ears and eager for some inspiration, only to hear Chief Judge Jacobs deliver his screed.

From the very first paragraph, the Chief Judge bore in with his grim perceptions about the relationship between the legal system and the military. He wrote:

The legal community has worked to overcome many raw prejudices and has cultivated respect for many groups of people who were excluded, distrusted, or otherwise treated with disdain. There is a stark, stubborn omission: animus against persons in military service and veterans.

In the elite legal communities of the American coasts, there is an open and concerted refusal to acknowledge and value their contributions. The gap between the legal elite and the military is wide, bad for legal education, dangerous for the country, and ungenerous to people serving this country in uniform.

Was the Chief Judge of the 2nd Circuit arguing that America's legal establishment is prejudiced against the military? Yes. "I believe it is easier for a law school applicant to claim the credential of public service for having done voter registration in a cemetery than for a stint in the Navy," Chief Judge Jacobs told the students. Does Chief Judge Jacobs have any military experience which might enlighten him about the disconnect? No. At the end of his speech, he confessed:

What is my interest in this and why do I care? I have no military credentials. Like many judges, I know nothing about the military. I make no bones about these things. But I owe gratitude to the people who are protecting me and my country, my city, and the liberal democratic republic that is the only environment in which I could live. Gratitude is the least powerful human emotion, and the one that passes most quickly; but I think that the alienation I am talking about -- which I too experience -- is a moral failing.

Now, you don't need to know anything about the military to be grateful for the sacrifice our service personnel make on behalf of our country. And I'm not sure what qualifies the Chief Judge as an expert in evaluating which human emotions are the least and most powerful. But what is so striking about the speech is the intensity of the accusations the Chief Justice levels against the legal establishment -- accusations which involve grand conspiracies reaching across all levels of law and policy.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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