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

By Andrew Cohen

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."

MORE ON JUDGES AND OUR MILITARY

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.

For example, he alleged that the legal profession's hostility toward the military is rooted in discrimination and then compared military personnel with traditional targets of official discrimination. Chief Judge Jacobs said:

To start with general tendencies, discrimination has always been most difficult to overcome for groups that are conspicuous and distinct. Color, sex, accent, dress, and culture are badges that set people apart. Those who serve in the military are distinctive by uniform, by habits of speech, by bearing, and above all by a distinctive culture and set of values... In the more materialistic environment of the legal profession, however, virtues characteristic of military service tend to be suspect; they are heavily discounted and they provoke recoil.

Do you think the military has been persecuted the way, say, blacks in America were persecuted? In Chief Judge Jacobs' view, "the cultural isolation of the military from the elite legal community can be ascribed in part to the decades-long nature of this country's military as an all-volunteer force. Among baby-boomers in the upper reaches of the legal profession, service in the military has been rare; it is rarer still among their children." Moreover, he alleges that things haven't gotten better since the end of the Vietnam War. Chief Judge Jacobs told the students:

It has been said that if you remember the Sixties, you weren't there. But I was there, and I can tell you. This aversion to the military became a strong current in liberal and academic feeling during the Vietnam War; since then it has not abated -- or even developed.

What explains the animosity the Chief Judge perceives on the part of the legal elite toward the military? He tells us. "It has a lot to do with the culture of the lawyers, their financial and political interests, and their pretensions." Chief Judge Jacobs told the students that the "competition and antipathy" the legal system feels toward the military "manifest themselves in pro bono activity." Lawyers challenge government policies, he suggested, because they are trying to act out against the military. He said:

Many inmates at the facility at Guantanamo Bay find themselves well-lawyered. Yet, in some family courts, parents are found to be unfit because they are soldiers and sailors being deployed abroad; they can look in vain for high-powered legal assistance.

And then the Chief Judge told the law students something I suspect they've never forgotten, something most sitting federal judges would be afraid to say in public for fear of running afoul of the Code of Conduct, the ethical guidelines which are designed to preclude judges from making statements that reflect adversely on the judge's ability to appear impartial. Chief Judge Jacobs said:

For lawyers, the Constitution is often a means to other ends. As I once pointed out, constitutional lawyers may know the intricate workings and mainsprings of the Constitution, but many of them use their technical skills instrumentally and regard the Constitution the way the skilled safe cracker regards the safe.

How would you like to be a pro bono defendant in a case before this judge?

POSTSCRIPT

There is no way to tell how many other federal judges feel the way Chief Judge Jacobs does about the military and the legal establishment but my sense is the number is quite low. Even though the Supreme Court currently has no war veterans on it, the lower federal courts have plenty of sitting judges with combat experience. Moreover, the "legal establishment" is sprinkled with lawyers who have military training and experience, from baby associates in law firms to the men and women who make up the Judge Advocates General offices all around the world.

It's hard to imagine that many of these smart, dedicated people, who make their livelihood traversing the gulf between civilian law and military policy, believe, as the Chief Judge does, that Americans today feel as negatively about the military as they did during the depths of the Vietnam War. At a time when the military's impact upon our lives is omnipresent, and the nation's patriotism toward its troops nearly universal, the Chief Judge laments that "civilian values are invading military precincts, discounting superior military values, and impairing the necessary services of that profession."

Loose rhetoric like that detracts greatly from the one or two legitimate points the Chief Judge made in his Cornell speech. One of these is a point I referenced in the series last week -- that as our service members find their way home from Iraq and Afghanistan, America's legal and political establishment must continue to ensure that there is a viable connection between our veterans and the legal systems with which they'll soon be interacting. On this topic, Chief Judge Jacobs said:

In order to maintain civilian control, we need civilians who understand the military -- what they do and who they are; how weapons work and which are needed; strategy, tactics, intelligence, logistics; when to check the military, when to mobilize it, and when to deploy it. It is dangerous to lodge such powers in the hands of civilian leaders who are ignorant and suspicious adversaries of the military, just as such powers should not be entrusted to ignorant cheerleaders or jingoists.

It is also dangerous, I would submit, to have a chief judge of a powerful federal circuit conflating zealous advocacy by lawyers with a systemic and coordinated attack by lawyers, law schools, and judges upon the nation's military. The former is an American tradition that predates the Constitution, going back to John Adams' representation of criminal defendants following the Boston Massacre. The latter is the expression of a paranoid delusion for which Chief Judge Jacobs should one day have to answer.

In any event, as our conversation about the courts and the military continues here at the Atlantic, I hope those of you with an interest in this topic will continue to pipe up and identify relevant speeches and writings, like this one, which help illustrate the wide range of beliefs that exist in a country that prides itself on the idea that there is civilian control over military power. Clearly, we all aren't on the same page.

This article available online at:

http://www.theatlantic.com/national/archive/2012/08/federal-judge-trashes-the-legal-profession-for-antipathy-toward-the-military/261409/