A CHILLING EFFECT:
The Justice Department has announced that the former Justice Department lawyers who authored legal memos justifying the use of coercive (read, torture) tactics against Al Queda prisoners, will not be subject to legal prosecution. The title of the post links to the article.
Huh?
Lets, break it down to its simplest elements.
The United States Justice Department will NOT prosecute attorneys who rendered a legal opinion that we now believe to be both wrong, and odious to the principles upon which this country was founded.
Since when was it a crime to author a legal opinion?
Many of us are called from time to time to interpret statutes and case law for our clients. Those who have a modicum of talent for it command a high fee for their abilities. (The others are mostly likely to don a black robe at some point, but that's another subject for another day.)
Many times the legal opinion is correct. Sometimes it is not. Under what theory can having the wrong view of a law render the attorney subject to criminal prosecution?
Can you imagine the chilling effect prosecuting lawyers for having the wrong opinion about a law would create?
Lawyers who have been "house counsel" for criminal organizations have been subject to prosecution. But in those cases the prosecution was able to prove that the attorneys entered into a conspiracy to assist their clients in breaking the law.
In the "torture memo" case, the issue is whether Justice Department attorneys committed a crime by giving a legal opinion endorsing as legal the methods the CIA wanted to use to extract information?
In our opinion the authors of the "torture memos" were dead wrong. Their view of the Constitution was antithetical to all that we believe the Constitution stands for. However, the operative phrases there are "in our opinion" and "we believe."
Can you prosecute attorneys for having the "wrong" opinion? Who decides what is right and what is wrong?
In the 1950s the government prosecuted attorneys for being communists. Do we want to go back to those days?
According to the NY Times article, the Justice Department is not ruling out seeking action against the attorneys by their respective state bar associations. This is just as bad. "We may not throw you in prison for having the wrong views, but we might just take away your ability to practice law."
Nothing about this is good.
The issue of torture has fallen before the crucible of American opinion, American elections, and the debate among Americans. Hopefully future presidents and future generations will learn from Bush's folly. But we gain nothing, and we lose our ideals and our identity when we prosecute thought and opinion, no matter how wrong, no matter how "Anti-American" the opinions are.
See you in court, wearing a coat, because it's getting a bit chilly out there.
The answer is simple, Rumpole.
ReplyDeleteIf a lawyer gives intentionally false information, they are merely wrong.
If they knew that the false information suggested that an unlawful act was actually lawful - they are also morally wrong.
If they knew that the person who was receiving the information was going to use it to justify the unlawful act - they are legally wrong. They acted with a mens rea to assist a criminal plan.
Simply put, they facilitated the commission of the violation of the law. That is called a CRIME.
prosecuting a lawyer for a legal opinion. Why, why I've never heard of such a thing! Can anyone, anyone cite to a case where the justice department prosecuted a lawyer for a legal opinion? Anyone, anyone?????????
ReplyDeleteSure, simple. Although most people think the interpretation of the laws wre wrong, I haven't heard anything about "false information". What does that mean? They made up laws? They added or subtracted words? The memos detailed what the attorneys thought they could do and how long to the second they can do it to make it NOT be torture. We might disagree, but it isn't a crime.
ReplyDeleteTam Wilson is a good man.
ReplyDeleteRump, Circuit Judges DO NOT get paid more than 150k a year. In fact the legislature just cut the salary by 2%. Considering no pay raises for judiciary in last 6 years and no COLA in the last 4, the payscale has really retreated.
ReplyDeleteBen Kuehne is being prosecuted for his legal opinion about the cleanliness of the money used to pay Roy Black's fee.
ReplyDeleteI must also disagree.
ReplyDeleteThought is often prosecuted. It's prosecuted when the factfinder determines intent and it's prosecuted when the charge is conspiracy.
I do not have access to the facts so I cannot say whether the generation of these memos was a conspiracy. It certainly has the smell of bad faith about it.
Lawyers have the privilege of self-regulation because they are understood to prosecute their own if they go beyond the bounds of approved conduct. Failure to regulate those who abuse their office may result in cancellation of that privilege.
Abe is right. The CIA sought the legal opinion from the Justice Department in order to cover their butts for doing something they knew was illegal, but that they felt was necessary to save the country from terrorist plots under an "good-ends-justify-the-bad-means". This was a time where the government was desperately trying to protect its political butt from accusations of not doing enough to prevent another attack.
ReplyDeleteThis was the equivalent of a client seeking a legal opinion to justify a fraudulent business practice.
I have to agree with Abe on this.
ReplyDeleteIn particular the August 2002 Bybee memo makes clear that he viewed his job merely as "papering over" conduct that already occurred and that he probably knew was illegal under both anti-torture legislation signed by Reagan and existing international law to which the United States was a signatory.
Lawyers and judges who stood silent or acquiesced to then-legal Nazi "forced emigration" policies were prosecuted by the international community and for good reason. Indeed, that is the entire focus of the great film Judgment at Nuremberg.
Like Spidey's uncle says, with great power comes great responsibility.
Well, we prosecuted 2LiveCrew for the words in a song...
ReplyDeleteFormer Judge Pedro Dejoles was toe Broward prosecutor.
This IS America, isn't it?
touche 6:22!
ReplyDeleteBen.
ReplyDeleteRump, you are wrong on this one. If somebody issued a legal opinion saying it is lawful to go into a bank with a gun and "withdraw" a million dollars because the bank committed a fraud against that individual, knowing that the person was going to rely upon the opinion to commit the act, the lawyer is guilty of something.
But, this is much worse....these fuckers essentially authorized torture...through the most tortured reasoning possible. They did it intending that people would be tortured and intending to give the torturers cover. That is conspiracy and aiding and abetting.
Everybody wish Judge Izzie Reyes a Happy 50th Birthday tomorrow.
ReplyDeleterump - jq c says disgraced broward judge aleman should pay cost of jqc investigating her - dig it.
ReplyDeleteand, as cheryle would say, God Bless you and and God Bless this Blog
Rump, can you please change the background screen on this blog? I am sick of looking at green and yellow polka dots.
ReplyDeleteThings are getting quiet in the building.........
ReplyDeleteSay it aint so Tam. please reconsider you are one of the best judges we have left. Dont leave the bench, we need you..
ReplyDeleteThere will be more resignations of those who were sticking out their terms until 2011. The reason is the 2% cut has a substantial effect on their retirement and drop. Anticipate more resignations by January, but more probably October 1 when the new budget takes effect.
ReplyDeleteI can not wish Izzy a happy birthday tomorrow because I don't have his cell number, so I will say it today. Happy Birthday Izzy, tomorrow.
ReplyDeleteAbe gives another well-reasoned, well thought out post. It is one thing to give a legal opinion that turns out to be wrong. Many of us--mostly unwittingly--have done this during our careers. It is quite another thing to author (create would be a better term) a legal opinion that will be used to legitimize conduct that is clearly illegal.
ReplyDeletehey rump - why don't you sponser a "RUMPOLE" charity golf or fishing tournament each year to raise money for a charity of your choice. all of the judges and lawyers would play and we can raise some good money for a worthy cause. everyone is intrigued by you and would follow you for any good cause...
ReplyDeleteHopefully this manner of thinking will lead the government to dismiss the charges against Ben Kuehne.
ReplyDeleteWhen the US occupied Haiti between 1915 and 1934, the international community cried foul. FDR rewrote the Haitian constitution.
ReplyDeleteIt caused embarassment to Woodrow Wilson at a peace conference at 1919 that we, such an enlightened nation would engage in an occupation which was brutal and infected with racism.
Did we ever go back and prosecute all those involved in such an affair for these international rights violations which were justified by our legal and policy experts?
The damage done would affect Haitian politics for half a century as each dictatorship that rose after the occupation ended, was usually from the remaining American-trained Haitian military officers who usually rose to power with the blessings of the American patronage.
It seems off point, but rather it shows that when the henchmen of the previous administrations have engaged in "illegal" practices, do we really go back and prosecute them all?
Rumpule
ReplyDeleteThe Lawyers who gave the opinions that led to Mr. Laeser's parents and my step-mom's parents being placed in camp were wrong, also. Torture, by treaty - and therefore the supreme law of the land- is illegal. Those that engage in torture and assist those who engage in torture need to be held to bar - or pardoned.
D. Sisselman
D. Sisselman
Sorry to rain on your parade but, Tam Wilson was rather rude to me in court and I will not miss him.
ReplyDeleteIf any of you old farts are interested, there is a softball tournament going on this weekend on Key Biscayne. Corrections and the Baliffs each have a team and we are trying to get a least two attorney teams as well. See fliers up around building and show up for some beers and fun if you want.....
ReplyDeleteis abe laeser taking any private cases? please let me know, I
ReplyDeleteActually, while I normally agree with Abe, his answer is NOT complete.
ReplyDelete"If a lawyer gives intentionally false information, they are merely wrong." This answer is incomplete at best....the lawyer also is guilty of violating the Rules of Professional Conduct. The nature of the violation and penalty would depend on who he or she provided the information to.
Regardless, many of you appear to be misusing his statement regarding what is or isn't a crime. What the DOJ prosecutors did would only be a crime if they intentionally provided false information. An error in legal judgment would not give rise to a crime. Insofar as there is significant controversy over the legality of what happened, I'd be surprised if they were indicted.
(that said, I'm not condoning or agreeing with their opinions)
10:16 Tam was always rude to lawyers who acted like idiots in court. Is that you Larry?
ReplyDeleteShumie history
ReplyDeleteShumie history
ReplyDeletezzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
ReplyDelete10:16pm-------you probably deserved a tongue lashing from Tam. I have known him 30 yrs and have never seen him mistreat a lawyer or a client.
ReplyDeleteTam Wilson is a great judge. Wait until you get another Maria Espinosa Dennis and you will wish him back.
ReplyDeleteUnfortunately, in this very buidling there is at least one robed one who belives that a lawyer who argues both sides of the same issue on behalf of different clients, is "intellectually dishonest." When an issue is settled and clear, if there IS an argument to be made, should the lawyer make it, knowing that they are probably wrong (but may have a small chance of being right?)? In my case, the issue is unsettled. I can argue both sides unless and until the supremes settle the matter. This judge's position, in my opinion, displays an inherent bias on his part, by expecting defense attorneys to forego an ardent defense of their client, to avoid being labeld disingenious. Prosecuted for an opinion? It happens every day. What do you think?
ReplyDeleteEven Supreme Court decisions of settled law are overturned. A lawyer has an obligation to zealously defend the client. The lawyer also has an obligation to truthfully inform the court of relevant case law, including adverse opinions. But then there is nothing to prevent the lawyer from arguing why the decision is either not controlling on the facts, or should be overturned- at which point the lawyer is clear he or she is laying a record for a future appeal.
ReplyDelete