Two Times Editorials on Law, Two Conflicting Conclusions

Michael Kinsley sniffs out an inconsistency at The New York Times

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A righteously (and rightly) indignant editorial in Monday's New York Times savages the Republican campaign to vilify lawyers who have represented prisoners at Guantanamo. Nine of them are now apparently working for the Obama administration. Republican operatives Bill Kristol and Liz Cheney have labeled these lawyers the "Gitmo 9." A video being distributed by a front group Cheney and Kristol founded called "Keep America Safe" asks, "Whose values do they share?" The implication is that they share the values of their clients--not America's values. The Times disagrees: "It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice." That's true. Everyone, even a terrorist, is entitled to a lawyer, when accused of a crime.

But this wasn't the only recent Times editorial on the subject of the legal profession and its standards. On February 25, another stemwinder began, "Is this really the state of ethics in the American legal profession?" The headline was "The Torture Lawyers," and the subject was an Obama Justice Department decision not to ask the bar association to discipline John Yoo and Jay Bybee--potentially wrecking their careers. These are the two members of the George W. Bush Justice Department who produced memos arguing that the Bush administration's torture policy was legal.

It would be way too much to say that Yoo and Bybee did nothing wrong. Even the Justice Department official who overruled an internal investigation and let them off the hook said that they had shown "poor judgment." Most people who have read the memos say a lot worse. But isn't the president, contemplating a response to 9/11, also entitled to a lawyer? And shouldn't that lawyer be able to advise his or her client without fear that the advice itself could lead to punishment? Even if that advice is wrong?

Well, not quite. Lawyers are disciplined all the time (though probably not often enough) for bad advice that harms their client. And if a lawyer were to advise a client that it's OK to shoot trespassers on sight--knowing that this is not true--the lawyer might be in trouble. But in this case the accusation is that lawyers were overly solicitous of their client, and there is no evidence that Yoo and Bybee thought the advice they were giving was incorrect.

The Times says what Yoo and Bybee offered the president was not "legal advice" (in skeptical quotation marks) anyway. "The White House decision to brutalize detainees had already been made. Mr. Yoo and Mr. Bybee provided legal cover." If that is true, if the decision had already been made when they produced their memos, then punishing them for writing those memos starts to look like thought crime. And if legal advice becomes mere "legal advice" when it occurs after the fact, and therefore doesn't need to be taken seriously as a right, then all the advice given by American volunteer lawyers to the prisoners at Guantanamo deserves the same dismissive quotation marks.

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