I am a strong believer in human rights, particularly the right of free speech. This is why I am troubled by some of the media and Congressional response today to the release of some of the memos written for the Justice Department in 2003 by John Yoo.
Those memos are those that supported the contentions of the Bush administration on several issues, such as internment, habeas corpus, etc. The Supreme Court has kept ruling against the interpretation of those memos in the few cases involving those policies that have made it to the Court. Between October 2008 and January 2009, the Bush administration rejected the conclusion of some of the memos written during the 2003 period. In many ways, most of them are dead in the water and no longer supported by either the previous or the current administration.
So, what troubles me? The Office of Professional Responsibility of the Justice Department is investigating the lawyers. Congressmen are calling for hearings in which they want to grill those lawyers over their conclusions. The news media is intimating that “something” ought to be done to those lawyers. So, what troubles me?
What troubles me is that those men wrote an opinion. They did not implement any programs; they did not participate in any of the actions that many consider illegal; they were not in the chain of command on those issues. What did they do? They gave an opinion on the interpretation of Constitutional law. I may think that their conclusion is illogical. I may think that their conclusion will lead to inappropriate behavior by the administration, which it did. Nevertheless, if all they did was to give an uncoerced opinion which was, to the best of their knowledge, their best opinion on a point of law, we will do justice itself a real disservice should we try to either prosecute them or take them through an ethical hearing process.
I have as low an opinion of most lawyers as most in this country. I can tell lawyer jokes. But, I am a bear on free speech. And, one of the most dangerous challenges to free speech is when we begin to coerce lawyers and limit what opinions they can give on the law. Yes, many times both prosecution and defense lawyers have what I would consider to be tendentious interpretations. Guess what! That is why we have a court system! Lawyers are allowed to try to interpret the law to favor their client.
Can you imagine what miscarriages of justice would occur if lawyers were afraid to try to interpret the law to favor their client because of fear of follow-up government retribution? If you do not know what miscarriages of justice would occur, then I can put up a LONG post listing all the nations and historical events in which opinions on the law were limited by fear of retribution. The list would not be pretty and the abuses would be horrendous.
So, my new slogan? “No trial for Yoo!”
I think we’re in “fire in a crowded theater” territory here. The right to free speech is not absolute. And there is professional responsibility: lawyers are bound within guidelines about how they express their expertise and how they develop opinions. No lawyer, for instance, could tell a client he has the right to murder someone else and not be held responsible for it. No doctor could tell a patient he can cure cancer by chewing more gum and not be held liable. There is an added burden on professional opinion. Whether a trial is appropriate depends on how serious are the consequences of the unprofessional conduct. And I think these are very serious indeed.
I know of the rules about professional responsibility. And, no lawyer may tell a lie to the court. Nevertheless, I think I would rather err on the side of not prosecuting or dragging lawyers before commissions. In this I agree with President Obama.
You see, I have lived in South American countries. And, down there, when governments change, it is almost traditional that they will take members of the previous government to court on charges of corruption, or some other charges. You see, I fear that if we pursue this course of action, we could easily end up making the same mistakes that my people have made in Latin America.