Mukasey's Defense of Professional Irresponsibility

Att. Gen. Michael Mukasey came to Boston College Law School last Friday and offered a substantive, and deeply troubling, message to our graduates.
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Don't ask Attorney General Michael Mukasey to speak at a graduation ceremony if you want a milquetoast speech extolling the virtues of community service, sun screen, or calls to your mother. He came to Boston College Law School, where I teach, last Friday and offered a substantive, and deeply troubling, message to our graduates.

I was among those on the faculty who criticized Mukasey's invitation. I did not want to offer a bully pulpit to a principal defender of the Bush Administration's discredited and embarrassing views on waterboarding.

His speech was more aggressive than I had feared. He went beyond the waterboarding controversy to offer a full-throated defense of those government lawyers who "provided legal advice supporting the nation's most important counterterrorism policies" after 9/11. He clearly included in his defense those Justice Department attorneys who authored the infamous 2002 "torture memo," which told the administration it was not bound by federal or international anti-torture law and defined torture so narrowly that it justified all but the most heinous interrogation techniques.

The villains in Mukasey's speech were opinion leaders outside the government - including academics - who have offered "relentless," "hostile," and "unforgiving" criticism of the torture memo authors and others on the administration's legal team. Critics are taking advantage of "perfect hindsight" and fail to recognize the "difficulty and novelty" of the legal questions facing the government at the time. Most current criticisms are "unaccompanied by any serious legal analysis" and some are "breathtakingly casual."

With a patronizing pat on our head, he says we just don't understand.

But our problem is not that we don't understand, but that we understand all too well the illegal conduct that has been perpetrated in our name. We understand that the legal arguments advanced in the torture memo were blatantly wrong, the product of shoddy research and thin analysis that failed to grapple with relevant authorities, let alone the best underlying principles that ground law and maintain its legitimacy. Rather than being the target of only "casual" critiques, the torture memo and others like it have been subject to withering analysis from virtually every legal scholar who has looked at them. Harold Koh, the Dean of Yale Law School and a former senior State Department official, called the torture memo "perhaps the most clearly legally erroneous opinion I have ever read." It was withdrawn by the very office that issued it, and the memo's primary author, John Yoo, is under investigation by the Office of Professional Responsibility in Mukasey's own Justice Department, on grounds that his analysis on the memo may have failed the minimum "professional standards that apply to Department of Justice attorneys."

Besides defending overly aggressive DOJ attorneys, Mukasey's second lesson for our graduates was more subtle but just as distressing. The task of a government lawyer, indeed any lawyer, is to "do law." Lawyers must give a "close reading" and "critical analysis" of text, and to "tune out" the "white noise" of criticism and second-guessing. He urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."

So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.

Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.

What I wish our graduates had heard from the nation's leading attorney was the importance of personal responsibility for not only the technical part of lawyering but the moral side as well.

Yoo has defended his work on the torture memo by saying that "the lawyer's job is to say 'this is what the law says.'" Now Mukasey is defending Yoo and his cohort with the same simplistic notion.

In doing so, Mukasey implicitly holds up as an example for our graduates some of the worst instances of professional irresponsibility by government lawyers since the DOJ infamously lied to the Supreme Court about the military need for the Japanese internment during the second world war. What appears to have happened in the early years of the Bush administration was senior government lawyers taking legal questions that were fairly easy - waterboarding is torture - answering them incorrectly using political ideology as their guide, and then avoiding responsibility by saying that they were merely "doing law."

It is sad that a graduation message by our Attorney General at this stage of our national history was essentially a call to the avoidance of responsibility. I only hope our students did not take the message to heart.

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