March 10, 2010
In today’s New York Times, Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, contributed a post, “Representing the Despised,” in response to the recent release of a video by a conservative advocacy organization, Keep America Safe, which takes aim at lawyers who have represented Guantánamo detainees and are now working in the Justice Department.Dershowitz’s post is one of four commentaries that appeared as part of the Times’ Room for Debate blog post “Attacking Lawyers from the Right and Left.” Dershowitz is the author of many books, including, “Rights from Wrongs: A Secular Theory of the Origins of Rights.”
It may be good politics to attack lawyers for representing despised clients, but it is bad policy. Would anyone, including Liz Cheney, want to live in a nation where the most unpopular defendants, even those accused of terrorism, could not receive zealous representation, because lawyers were afraid their careers, including as government lawyers, would be jeopardized by their choice of clients?
Lawyers must be free to represent their clients — whether terrorists or government officials accused of torture — without fear of sanctions.
There is, however, another side to this issue. Some (but certainly not all) of the same lawyers who are rightly condemning Ms. Cheney for attacking current Justice Department attorneys for having previously defended accused terrorists are calling for the disbarment of former Justice Department attorneys who, in previously representing the government, justified controversial interrogation practices, such as waterboarding.
There are, to be sure, differences. The Constitution assures every criminal defendant the right to counsel. The government has no comparable right. But implicit in the power to govern is the need for legal counsel. Attacking lawyers who represented currently unpopular administrations that engaged in controversial practices is also bad policy that poses dangers to the administration of justice.
It is argued, however, that the charges leveled against the lawyers who drafted the so-called Bush “torture memos” go beyond merely representing a bad client for controversial policies. These lawyers are being accused of giving legal advice that went beyond the pale of acceptability.
Nonetheless, it is dangerous to seek sanctions against lawyers who believed in good faith that they were advising their clients within the bounds of law, even if it turns out, with the benefit of hindsight, that they were wrong. Unless their conduct violated specific criminal statutes, they should not be subject to disbarment or other sanctions. (Although I disagree with the reasoning and conclusion of these memos, they appear to have been written in good faith and were certainly not criminal.)
Lawyers should remain free to provide zealous representation and cutting edge advice to clients, whether their clients are terrorists who are accused of waging war against our nation, or a government that is accused of denying rights to these terrorists. That is the strength of our adversary system of justice.