Posted by: captainfalcon | March 18, 2010

Anderson explodes the Matrix

Let’s get back to philosopho-legal twaddle. Kenneth Anderson has an excellent post about the politics and law of the War on Terror that showcases a subtle grasp of the New Class chicanery-matrix (the mouthfuls one will take for punzzz…).

He starts by responding to some left wing praise for his signing a letter condemning Liz Cheney’s “al Qaeda 7” ad. The letter makes two points. First, that “to suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.” Second, that “such attacks also undermine the Justice system more broadly” because “good defense counsel is…key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.”

Anderson reports that knee-jerk lefties – too in thrall of partisanship to ascribe any meaning to political actions other than plus one for the left or plus one for the right – have congratulated him for rejecting the war on terror tout court, or, alternatively, for acknowledging the vast moral gulf between lawyers who defend detainees and those who’d authorize their being waterboarded. Plainly, this is not what the Wittes letter does. Nor is it Anderson’s position: he thinks, which is obvious, that the war on terror requires a sui generis legal regime and, which is less obvious*, that Yoo, et. al. gave their infamous advice “in good faith under the most difficult circumstances.” So, says Anderson to his lefty admirers, “[y]ou’re not actually congratulating me, I’m afraid — you’re congratulating yourself, for holding the views you hold.” Too true.

That same self-satisfaction pops up elsewhere, too. Noticeably in the “not-small matter of the elite of the elite law firms, law schools, lawyers, the bar, undertaking to represent Guantanamo detainees — while putting out a metaphorical press release to the world, as it were, that these lawyers are somehow heroically putting themselves out there for some unpopular client.  And that they therefore deserve many moral points — which they have freely awarded themselves — for having followed in the footsteps of heroic Atticus Finch types across two centuries of lawyerly experience in America.” Anderson’s demolition of this conceit is worth quoting in full:

It is a narrative of lawyerly heroism at once so offensive and so hilariously self-deluded that “radical chic” scarcely does it justice.  Unpopular cause?  Unpopular clients?  Sure — among ordinary Americans.  Not among the lawyerly elites, however, who constitute what Andy and others accurately refer to as the Guantanamo bar.  I’m a law professor, for heaven’s sake, half of my friends and colleagues and acquaintances are all proudly part of this.  Believe me, there’s no unpopularity involved, no voices of moral censure, no sense of disapproval from anyone whose approval might matter to you.

On the contrary, in the refined and precious world of elite law schools, elite law firms, elite law students and lawyers, there is the approval of those whose approval matters — all your authority figures, pretty much.  But much more importantly, there is also the disapproval of those whom you look down upon and disdain. Their disapproval matters, because it puts the spin of small but delicious trangression on the otherwise fairly routine acts of lawyers whose small and unadventuresome lives suddenly take on the thrill of a political thriller.  Ooh.  Notice, too, that it has not escaped the calculations of lesser law schools that, in the weirdly combined world of radical chic — a kind of Veblenesque political economy of conspicuous consumption — these kinds of causes might even be a path to upward rankings mobility.

Combine the frisson of a little act of moralizing geo-politics by a lawyer who studied political science and didn’t quite anticipate ending up spending his or her life reviewing boring commercial documents, and the frisson of moral self-righteousness, but without taking any actual risks, career, legal, moral, or political. We are left with the brilliantly winning combination that the Center for Constitutional Rights has managed to leverage into its own private bar association.  Also add to that the weird class aspect that undergirds radical chic — it’s a marker in its own right of elite.  Law firms dangled the prospect of this pro bono work before the most sought after top law firm grads, who took it as a sign of moral validation in addition to the (unsustainable) $160k.  Law schools did the same.

This righteousness is especially delusional in light of the fact that these same lawyers have the opportunity, right now, to do something that is both ideologically congenial and requires a modicum of bona fide iconoclastic courage. Largely because “capture is less desirable than it was, because no one wants to mess with interrogation, drone warfare” is increasingly our tool of choice in the war on terror. There are already signs – notably “the very eminent Georgetown and former West Point law of war professor Gary Solis’s” article in the Washington Post arguing for its unlawfulness – that the question of the legality of drone warfare is “the likely next clash of legal-cultural tectonic plates.”

So why not get on with it? The obvious practical implications of Solis’s judgment – “investigations, prosecutions, career damaging or ending insinuations” – are just barely on the horizon. This despite the fact that the Obama Administration hasn’t given a legal justification for its continued use of drones: while “CIA director Panetta is admirably standing up to defend his agency’s strategic engagement with Al Qaeda through Predator strikes… no government counsel seems to have offered any public legal rationale presented for it — opinio juris of the United States, in the lingo — by CIA’s lawyers or any other counsel in government.” Panetta did observe that he was acting under orders from the President, but that is “an assertion of legality likely to impress people, to the extent it does, only so long as Barack Obama is president.”

And this explains, on Anderson’s view of things, why there’s no expeditious movement from those brave defenders of the rights of detainees to punish those responsible for drone assassinations.** (Perhaps, more troublingly, it also explains the governing left’s unwillingness to construct legal rationalizations for their drone strikes.)

Finally – although it fits inelegantly into this summary – Anderson has a good take on the “cynical, mercenary lawyer” trope: “the lawyerly ability to switch teams is as much an expression of social solidarity and the rejection of fanaticism as hypocrisy.” Seems exactly right (right down to the as much anas hypocrisy).

I commend the whole thing to you. It is trenchant in its own right, and also functions as an intuition pump / bootstraps you into reflecting on modern political sensibilities.

* Given everyone, including Anderson, thinks Yoo’s legal advice patently incorrect, it seems likely that he didn’t give it in good faith qua “thinking it was good legal advice.” He probably did give it in good faith qua “thinking it was necessary and right.” That is: he gave it in good faith in the same sense that terrorists act in good faith. Which should give Islamist-sympathizing lefties some pause – it certainly does me.

** Although, in fairness, there’s also the matter of effective legal strategy: “If you are, for example, a European human rights activist or Spanish judge or what have you, you think to yourself: Hmm, if I go after Democrats in the Obama administration, they’ll be forced to fall back upon being “Americans“ and join forces to protect themselves with Republicans.  “American” will trump “transnational progressivism” if Democrats are threatened here…On the other hand, if I (Euro-prosecutor) target only Republicans, then I can be assured that Democrats (or enough of them in the transnational, progressive wing) will ally with me against the Republicans.”

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