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Bar News - May 17, 2013


Representations: Legal Acrobatics Don’t Defy Moral Obligations

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An independent review board concluded last month that the Bush Administration used torture to investigate and prosecute the 9/11 terrorist attacks. That torture consisted of waterboarding, the application of physical force (slamming people into walls, for instance), and chaining people into "stress positions" for hours at a time. More, too. But those were the highlights.

That panel also considered the legal arguments used to legitimate those practices. And it describes Bush’s lawyers as having resorted to "acrobatic" logic.

It was a lawyer named John Yoo who led those acrobatic exercises. He took his bachelor’s degree at Harvard and his law degree at Yale. He then clerked for Justice Thomas before taking his act to the Justice Department. He now teaches at Berkeley. And he was recently barred from entering Russia, as part of that country’s retaliation for the Magnitsky Act (a new federal law that penalizes certain Russian officials for their alleged mistreatment of prisoners). Yoo responded to Russia’s tit-for-tat with derision.

"Darn," he stated. "There goes my judo match with Putin." (I would like to discuss the use of the word "darn" by Yale-trained lawyers who sanction the practice of torture. But that would be too controversial.)

Nobody expressed any surprise, anyway, when Yoo’s efforts were described as "acrobatic." That lawyers can and will bend the law in the service of political power seems to be taken as a given.

It has certainly been a common theme in film and literature, at any rate. Many of these efforts are simplistic, or cartoonish – easy to discount as the work of malcontents. But I would note two movies that are not only well made, but also based on historical fact: Breaker Morant and Paths of Glory.

I often tell new lawyers at NH Public Defender that they need to see the first. It’s an Australian work from 1980, directed by Bruce Beresford, that documents the court martial of three Australian officers accused of murder during the Boer War in South Africa. The British brass has already determined that they must be found guilty, as a peace offering to the Boers. The men are represented by an appointed attorney, who earns their distrust by being bumbling and amateurish. He is able to trace his clients’ actions to the orders of higher-ups, though. He slowly gains their faith. And he realizes, with astonishment and despair, that his judges do not care. The fate of his clients has been preordained.

As it turned out, one of those officers (sentenced to life, later commuted) wrote a book about his ordeal, called Scapegoats of the Empire. The British banned it from publication during both world wars.

Paths of Glory is a Stanley Kubrick film from 1957. It concerns a French Army officer in World War One, who volunteers to defend his men against a charge of cowardice for their refusal to join a suicidal attack. That trial also quickly becomes a farce. It’s a brutal and sad movie, with a great lead performance by Kirk Douglas.

While those two stories concern military matters, they still keenly portray how deeply modern governments want the support of law for whatever cruel decisions they wish to make. They also flirt with cynicism and despair, as the promise of law is found hollow, to no official chagrin, and to little popular surprise. And that remains the cultural backdrop to Yoo’s acrobatic lawyering: a shrug from the right, and a smirk from the left.

I graduated from law school decades ago, and I have precious few mementos of it. I have my diploma and a Michigan sweatshirt, which I like. But I also managed to keep a hand-out from my criminal law class. I found it meaningful, so I saved it in a folder. And that folder sits in my desk, at work. So now and then I take out the official instructions to the court members, in The United States v. Lt. William Calley, and I read them through.

Calley was an American army officer charged with killing civilians in Viet Nam, and his defense was "following orders." Those deciding his case were told this: "The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."

By law, in other words, there is no escaping your own moral compass. And society scorns us when we, as lawyers, fail to apply this rule to ourselves.


Michael Davidow is a staff attorney at the NH Public Defender in Nashua. He is the author of Split Thirty, a novel about politics and advertising. For more information, visit www.facebook.com/split.thirty.

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