Is Criminalizing Attorneys For Their Legal Advice OK If You Are Really, Really Against It?

Richard Painter has this recent post on The Volokh Conspiracy regarding the so-called "torture memos." In short, he suggests that, because John Yoo's memos did not opine on whether the arguments would prevail in court (i.e., on "the merits" of the position), that they provided "no useful advice," and were thus "inept legal advice" not meriting constitutional or free speech protection. [Update: the latter conclusion is drawn by another constitutional law professor discussing Painter's post -- Painter himself does not say this. My apologies.]

The argument derives from a clever gambit: instead of arguing the legality of the position, which is messy and political, argue the form of the legal advice, something more susceptible to legal argumentation. The argument so framed then becomes: whatever the position the memos took, they failed to analyze whether they would prevail in court, and thus were inept legal advice. Voila: we now needn't bother with any pesky free speech questions, natural law arguments, and structural constitutional questions of separations and delegations of authority.

But if we are going to confine our focus to a "client/counselor" analysis, let's take it seriously. For the president's counsel, the concern is not what the courts are going to do -- the nature of the issue means the result is going to be ends-oriented anyway. In other words, Painter's complaint is pure form over function, because, under his view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a judge's ruling would be impossible without knowing the politics of the particular judge." After all, the president has more discretion than most clients, and political capital is going to be a major component of his legal strategy. Coming up with even a colorable argument, combined with broad Article II discretion in foreign affairs and political capital, would likely be more than enough to constitute a competent legal strategy.

In this regard, one commenter hit the mark:

A memo is not the place to be spending 30 pages on some contingent analysis of all possible situations and legal theories: the memo lists the case law, some papers, and says "maybe." That's the state of the law: "maybe." More analysis is not going to change that.

And another:

These are lawyers doing research and finding conclusions about the state of the law. The president needs accurate information about the law to enable him to make appropriate decisions. Due to the near-total absence of law with respect to unlawful soldiers, the decision of how to treat them is ultimately a moral one. That's the realm of theologians and philosophers, not lawyers. I would not expect legal memoranda to contain detailed moral, philosophical, or theological discussions and conclusions. That's not what lawyers do. It would not be professional for them to do so when asked to render legal opinions. There's no reason to expect lawyers to have any particular expertise in those areas.

But clearly, moralizing is all Painter means to do, calling the arguments "specious" and "obvious[ly]" wrong without any analysis of his own. Ironic, given he has just finished suggesting that an unfinished analysis may be grounds from criminal prosecution. [Update: Ditto above. This conclusion is drawn by others, but not Painter.] Arguments such as Painter's, however cleverly conceived, still offer nothing to anyone not already converted to a particular political view. Strictly speaking, that's not argument -- it's bluster.

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The Rule of Law Does Not Lend Well to Selectivity

Brian Tamanaha’s post at Balkinization calling for criminal investigation of the Bush administration’s treatment of prisoners at Guantanamo Bay is a wonderful example of how liberals tend to flip sides in the “rule of law” rhetoric. After all, what sober-minded conservative could take issue with talking up “our commitment to the rule of law”? But it is the chosen context that betrays the underlying political bias: if Professor Tamanaha is truly concerned about the rule of law, how about condemning the national take-over of private institutions being considered by the Obama administration? How about the punitive tax targeted directly at AIG employees who received impolitic though perfectly valid bonuses? Or the out-and-out rejection of the rule of law by Obama himself? If we choose to reignite our enthusiasm for the rule of law, let’s start with domestic actions affecting citizens regarding a metaphorically explosive crisis rather than foreign military actions affecting noncitizens regarding an actually explosive crisis.

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How Many Angry Populists Does it Take to Run the Finance Industry?

My father in law asked me today what I thought about the AIG bonuses. I explained that I have no idea how things work at AIG or in the industry in general, so how could I possibly know whether they were excessive or not -- all I know is that they were paid in accordance with valid contracts. Well, yeah, he replied, but it's just ridiculous.

I went on: the finance industry is a mystery to everyone (even those in it), but there are lots of incredibly bright people there, and given the incentives they had (about which we now scream bloody murder) they were able to put untold thousands of families into homes and generally finance the lifestyle we are now upset over losing. Sure, we're disappointed and want to blame the people who made it all possible.

But would anyone have tolerated some wonk warning us, in the face of the possibility of untold egalitarian prosperity, that we could not have it all, because there's a possibility all this sophisticated financing calculus had an error in it somewhere? He would have been run out of town on a rail for trying to keep the little guy down, for trying to dam up the river of wealth at just the moment when it finally looked to make it downstream to the middle and lower classes. Of course, NOW we know that it was all too good to be true. But no one could have kept us from trying out the experiment that, for nearly a decade, gave so many so much.

We have justification to be disappointed, frustrated, and upset with the finance industry. But if we want to be the recipient of any of its future opportunities for prosperity, we can't go barrelling over the right of contract and politicizing corporate compensation structures.

All I know is, my father in law inflexibly replied, at the end of the day, I didn't get those bonuses. So screw 'em.

So, for my father in law and anyone else who is anxious to see what it looks like when a pissed off populist mob runs the finance industry, enjoy the show.

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Science and the God-Shaped Void

A friend and I were talking recently about the uneasy role our respective religions play in our secular American lives. Religious folks watch crude and profane movies and laugh along with everyone else. Atheism is just different strokes for different folks—no big deal, really, they just opted not to tick the God box. Is there any danger to religious Americans to make room in the public sphere for atheistic perspectives and values? Perhaps we can just do what we’ve done with commercialized Christmas: leave it be, just have to remember that “Jesus is the reason for the season.” Perhaps a more secular culture is ok, so long as we keep in mind what it really means to hold to a religious worldview.

Easier said than done. We are not in a worldview-neutral culture. There is currently not a lot of reason to think about worldviews because, when it comes to much of the important stuff, we happen to believe the same things: individual liberty; human dignity; love of country; etc. But as we are starting to see, in the debates on gay marriage and stem cells, for example, there is increasing pressure to abandon vestiges of our religious worldviews unless they are supported by the atheistic worldview. That is, the morality that comes from old books and stodgy preachers no longer passes muster. Insert some bar graphs and control group data and then we’ll talk. Until then, no one wants to hear about your peccadilloes.

The problem with that is, properly speaking, there is no such thing as an “atheistic worldview.” Instead, we have atheist worldviews, as many, in fact, as there are atheists. This is because science, which serves as atheists’ de facto “god,” is value neutral. It governs only process, not ends. If you want to talk about ends, about truth, about first principles, we’re talking about metaphysics, the branch of study antecedent to science on the human knowledge tree.

To even the religious among us these days, science is the gold standard of truth. Labcoats are preferred to armchairs. No one wants to hear about metaphysics—the physics part sounds good, but this “meta” must mean less good, no?—like “semi” or “pseudo”? To the contrary, the prefix means “more comprehensive; transcending,” as in, physics presupposes metaphysics. Without metaphysics, there can be no physics. Metaphysics gives us the tools we need to do science. Scientific method? Metaphysics. Induction? Metaphysics. Causation? Metaphysics. Unified theory of everything? You guessed it, metaphysics. Natural selection is a scientific theory, but the theory is so ingenious that it entices otherwise sober minded scientists to go further. It has answered so many questions and unlocked so many doors that we forget that it all comes from the same field of study that provides the foundation for both science and theology: metaphysics.

That is what the folks at the Discovery Institute have their alarm bells ringing about. Whatever you think about intelligent design (and I don’t think a whole lot of it), they are right to be bothered that science now thinks it can start injecting non-scientific fields, such as teleology, into classrooms. The notion that teachers could indoctrinate students about a “purposeless” universe is just as objectionable as if they were teaching it did have a purpose. They are two sides of the same coin, with intelligent design proponents on one side, and natural selection proponents on the other. The problem is the coin: either way, preference is given to one side or the other in a science classroom when science proper has nothing to say about it. Present both sides in a confined discussion about metaphysics, or, if that makes the scienceniks too nervous, forget the whole thing.

God should not be injected into science classrooms, but neither should science teachers extend the proper borders of their field. Science has moved beyond focusing on method and has traced its way back up to where it splits off from the rest of philosophy at the juncture of metaphysics and epistemology. Ironically, the intelligent design proponents who are holding ground at that crossroads defend not only metaphysics and religion, but science as well, refusing to let method- and certainty-oriented science trod upon the more nuanced and transcendental branches of the knowledge tree.

We all have a religion. For some, it is science. It is not yet clear whether science or the science-ists will suffer the graver effects.

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Why We Should All Want Obama's Economic Policies to Fail

I usually don't get into debates about the effectiveness of economic policies. Certainly above my payrate. So I would never say that so-and-so's economic policies will or will not work. My objections rest instead on the basic ideas of how government and economics are designed to work, and always have worked, in this country. Thus, I could care less whether Obama succeeds on some, most, or all of his ideas, because his ideas right out of the box are inapposite to our constitution and our civic way of life. It would be like cleaning your floor with a sandblaster. It will be clean, for sure, but ruined. Beyond salvage, if it's been "effective" enough.

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The Liberal/Conservative Role Reversal in Ends vs. Process in Detainee Rights

Andrew McCarthy’s debate with Katherine Darmer at Chapman Law School this week (podcast of the redux on Hugh Hewitt’s show later that day here) made me realize something. When it comes to domestic affairs, conservatives are generally preoccupied with process-oriented justice, and progressives with ends-oriented justice. However, when we start speaking of Gitmo and foreign affairs and all things constitutionally relegated to executive discretion, the roles curiously flip. All of a sudden, progressives start singing the due process tune for the benefit of enemy combatants (or whatever we are calling them these days), and bollocks to that prattling on about making sure we don’t all get blown up. On the other side, those conservatives who champion a value-free justice that guarantees a due process of law seem to care little if at all about deprivations of freedoms and dignities, and are willing to give the benefit of near unbounded doubt to our chief executive and his unseen underlings.

At the risk of appearing to rush in to defend the latter position, I think the conservative position has a ready defense rooted in basic political theory. The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process. As a political and moral matter, of course, it is always prudent to afford as much process and respect for humanity as possible and to let our leaders know that we are watching them. And, to our great credit, we do just this. But let’s not get silly and suggest that there ought to be additional legal barriers preventing our leaders from ensuring our own survival in time of war.

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The Siren Song of Ends-Oriented Justice

There is a lot of talk going on lately about the basic differences between the economics of the Right and Left: The Right thinks that things work best when you keep all your money and spend it as you see fit. The Left points to the failures of the market and the general unsympathetic characteristics of the rich and conclude that things would be best if a substantial chunk of individuals’ earnings be reappropriated. Given that I have no particular expertise in economics, I can't provide a pragmatic justification one way or the other. What I do know is that this is not merely a question about economic policy: this debate showcases the dramatic differences in theories of justice and political theory that rage just under the surface of our system of government.

On the one hand, our liberal (small “l”) system of government is founded on the recognition of rights and a process-oriented system of justice to protect those rights. In other words, we provide a basic set of laws to prevent theft and enforce contracts, and leave the "free market" to run on auto pilot. On the other hand, the progressivist/collectivist trend in our government is founded upon a basic dissatisfaction with merely protecting rights; because we are born with varying degrees of ability in order to promote our respective rights and happiness, inequities invariably result. God, it seems, has a thing for caprice. Accordingly, a system that stops merely at protecting our inherently unequal abilities to advance our own rights is a system that stops too soon. Equal in the eyes of the law? Who cares about that if justice is wearing a blindfold, after all? Equality of results, that's the ticket.

Rights, then, have been the enemy all along, in the progressivist view. Thus, they must be replaced with entitlements, which, unlike rights, are afforded by government according to perceived need. This brings about a shift to ends oriented justice, justice without the blindfold. This progressive justice cannot be meted out through an anachronistic rule of law; it must flex and bend depending on the social good, or a particular moral suasion, or the proximity of the next election.

Again, we don’t need to reach the question of whether process-oriented justice or ends-oriented justice reaches the best results. And that is because ends-oriented justice is not really a true choice for a society founded upon such basic notions of written laws, the rule of reason, and the separation of powers. That is, there is no real choice, because such a system cannot survive. As I have written before, ends-oriented justice is nothing more than vigilante-ism. In a classically liberal, process-oriented system of justice, ends are immaterial – the individual is free to craft the product of his God-given liberties provided they do not impinge upon others’. In a progressive, illiberal, ends-oriented system of justice, in which liberties are deprived in order to grant entitlements in equal share to all, there is no rule but satiation. The legitimacy of such a system depends entirely upon the quality of the ends produced. An administration that does not distribute entitlements to the liking of the majority is overthrown and wealth is redistributed in revolution – shifts of power in the tradition of the miracle of 1800 do not exist in an illiberal structure. Keep your incentives to produce, we'll just take the products outright, thank you very much.

Classical liberalism, of course, means that, to a large extent, we have to live and let live, and not conscript the coercive power of government to equalize all our differences through the manufacture of entitlements and the redistribution of wealth. It also means that the pain and consequences that are the natural result of our own choices must not be negated -- a highly unpleasant notion given present conditions. If we cannot learn to live with that, however, we will only hasten our own destruction and descent into dystopia.

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On Legalizing It

This recent story from The Economist states the familiar case for fighting the rampant abuse of drugs by legalizing them. From a strictly utilitarian standpoint, I could not hope to argue that continuing the “war on drugs” is the most productive route. However, I have always fretted about what it would mean for our society to condone and promote drug use. Our laws have always been based around promoting “good policy” and keeping clear of “bad policy.” We don’t enforce contracts against minors because, well, adults shouldn’t be contracting with minors (with certain exceptions). We don’t enforce non-compete clauses that are so broad as to threaten one’s livelihood. There are other examples of agreements freely entered into that are not enforceable on grounds of public policy.

The idea is, obviously, that our courts are meant to enforce agreements that in turn promote the public welfare. If we were to turn around our drug policy simply out of defeat, and not because we had changed our moral position on the question, seems this would be an unprecedented and backhanded use (abuse?) of our legal system to alter behavior. Clearly, the idea would be that we would legalize drugs because we hope that we could reduce their use better than by continuing to outlaw them. Somehow, that just seems very strange and wrong. Sounds like a lawyer trick to me. It would lead to either a very sneaky and Machiavellian regulatory and enforcement structure, or a triumph of moral relativism. In either case, I doubt it’s worth it.

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