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A Long Consideration of the Role of Government Lawyers

As part of my professional responsibility seminar in law school, which is specifically focused on government practice, we're talking about confidentiality rules, attorney client-privilege and government transparency, particularly the interaction of confidentiality/privilege and whistle-blowing. My professor worked in intelligence and national security before he started teaching, so a great deal of our outside the casebook reading comes from that angle. This week we have a number of articles about government leaks and internal dissenting memos regarding torture, extra-legal interrogation and, of course, the NSA's surveillance programs. All of this reading presents a lot of fodder for discussion, but there about a couple of things I keep coming back to – personal morality/integrity and ideas of "American values".

I'm in the middle right now of an article about Alberto Mora from a 2006 issue of the New Yorker. And the most striking quote from Mora for me is this:

"Mora was a well-liked and successful figure at the Pentagon. Born in Boston in 1952, he is the son of a Hungarian mother, Klara, and a Cuban father, Lidio, both of whom left behind Communist regimes for America. Klara's father, who had been a lawyer in Hungary, joined her in exile just before the Soviet Union took control. From the time Alberto was a small boy, Klara Mora told me, he heard from his grandfather the message that "the law is sacred." For the Moras, injustice and abuse were not merely theoretical concepts. One of Mora's great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Mora's first memory, as a young child, is of playing on the floor in his mother's bedroom, and watching her crying as she listened to a report on the radio declaring that the 1956 anti-Communist uprising in Hungary had been crushed. "People who went through things like this tend to have very strong views about the rule of law, totalitarianism, and America," Mora said."


I wrote my college capstone paper on the construction of national narratives and their shifting over time (essentially, we get the same basic facts in each iteration of the national history, but the particular version of it that you construct is highly dependent on the context in which it is taught and you learn it, to the point that the history you learned in school is not the history your mother or grandfather or great-great grandfather learned. But we still manage to have a central story that doesn't change.), and I come from a family that has both been here at the founding of the first cities in New England and arrived in the early 1900s as immigrants fleeing political strife. I know I am supposed to be focused on the intersections of transparency, confidentiality and privilege, but what's most intriguing for me so far is the differences in how people conceive of American values. We're living in an era that's increasingly focused on what the rule of law actually means and on applying the thinking of the founding fathers to modern problems. I've often in law school noticed the urge of certain areas of the law to tie their foundations back to the Constitution, and by virtue of that to the founding values of our country. In both this story, of Alberto Mora, and in another story we are reading about Jesselyn Radack, who leaked internal DOJ emails concerning the legality of John Walker Lindh's interrogation by the FBI in Afghanistan, there seems to be this focus on connecting what was done to a perception of the values of the United States set-up at the Revolution and in the Constitution.

It seems like when we are faced with issue of such high salience – torture, extra-legal interrogation – we fall back on ideas of what the government should and should not do that are rooted in the nation's founding and in a somewhat romanticized view of a country founded on ideals of the relationship of man to government. I'm drawn to that because of the effect I can see from immigration history on the form a citizen's patriotism and nationalism take. Mora and his family came to the United States because they saw it is as place without the governmental abuse of power they experience in their home countries. Living in a regime that casts aside human rights of its own citizens and hearing stories of that from his parents and grandparents gave Mora a perspective not as easily come to by a long-time citizen family. When you've had for such a long history a government that treats its own citizens well and respects that conduct in its actions toward others, the danger doesn't seem as close, it seems easier to toe the line in the name of national defense. It is an easier leap of thinking, when you have American exceptionalism at your back, to condone torture and extra-legal interrogation as a means to protect your country because you are able to say to yourself that we are different somehow, because we are the United States, defenders of the free world.

I don't mean to imply that everyone who recently came from a history of abusive and oppressive government, and everyone who comes from a stable, human rights record respecting country history falls into these buckets. Not at all. I just find Mora's distinction between protecting the country and protecting our values to be one I can anecdotally tie to those things. People who come here seeking out a place of fundamental values of inherent rights of man that include personal dignity and freedom from cruelty are about protecting those values, not the country they came from. When you grow up here, I think that our core values and our countryhood are often conflated – you end up supporting the country as a way of supporting the values. And that breaks down when the defense of the country conflicts with the values of the country.

Both Radack and Mora present their actions as in part questions of personal morality and how to align that with the disclosure rules and and questions of who your client is as a government lawyer. Last week in class, a girl said she didn't think she had been trained to answer questions of integrity, and I put forth the idea that it doesn't take special training to consider the ideas of personal integrity and appropriate action as some one's agent. But, thinking back it seems in some ways like law school is in fact training us to do the opposite of come to an answer about the "right" choices. The cliche of law school is of "getting to maybe", and the notion that you should be able to argue any side of an issue is drilled into your head. There are no "correct" answers, only "defensible" ones. When one of the authors of the Torture Memos was asked about the policy side of those memos, he answered to the effect that the policy decision wasn't up to him, he was there as a lawyer to give the correct legal reading of the limits of the law. Is that really all lawyers are there to do?


Chevron deference provides that courts defer to an agency's interpretation of its guiding statute where the meaning is ambiguous and the interpretation reasonable. E. Donald Elliot has argued that this allows lawyers to set the reasonable range of what the law means and policy-makers to choose among those (and consequentially allows for policy to be more flexible, since there is no set meaning to the statute). In an agency or military context, should we expect our lawyers to do more than simply set the goalposts for what is legally defensible? Lawyers take an oath to protect and defend the Constitution. Under that standard should part of a government lawyer's job be to interpret the law in a ways that accord with our founding principles of the relationship between man and government?

Still parsing through my thoughts and forming the right words for them. This is just some of my first reaction thoughts. Would love to hear any ideas and criticisms or further questions to consider. Plus, there are lots of non-lawyers and non-United States based folks here and it is good to talk about this stuff outside my law school bubble.

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