The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers

When Liz Cheney released an ad charging that attorneys who had defended terrorism suspects were not fit to work in the Department of Justice, individual lawyers and the organized bar reacted with across-the-board outrage. Some, like former Attorney General Michael Mukasey, took the occasion to argue that the same protection and understanding is due the government lawyers who wrote the memos condoning torture by American agents, because the attacks on the lawyers are “all of a piece.”

In my essay, “The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers,” I discuss why the role of the defense attorney and the multifaceted role of the government lawyer are not equivalent. I also discuss the reasons why we have developed clarity about the role of defense attorneys since the dark days following 9/11: the military lawyers who led the way, the organized bar gradually stepping up to the task of defending the Guantánamo detainees, and the Supreme Court deciding a series of cases making a strong statement about the essentiality of the rule of law and lawyers, even at Guantánamo.

By way of contrast, we have little clarity about our shameful brush with torture — partly because the courts have found a dazzling array of procedural excuses for refusing to hear cases about torture and extraordinary rendition, depriving the victims of their day in court. There is a great deal we do not know about what happened and who was responsible, but there are now few voices calling for accountability. President Obama urges us to just turn the page. I argue that it is a mistake to go forward without first looking back, suggesting that the model of a truth commission might be useful to us.

(Originally posted on ACS Blog.