The perils of practicing law alone: a singular example

Frank Rich has written another superb column, this one entitled “The Real Life ’24’ Summer of 2008 ” which reminds of a question that I have asked myself over and over when I’m not feeling the certainty one can feel when one has no responsibility and is watching the fight on t.v.

At such times I wonder what I would have done had I been in charge. It is impossible to imagine feeling (being) responsible for protecting the nation from terrorism and having virtually unlimited power at one’s disposal.  The two people who seem to feel that responsibility most directly and who have access to and who seem to exercise limitless power are Vice President Cheney and his top lawyer and advisor David Addington. Surely many others are involved as enablers mostly, but Cheney and Addington in my view are alone at he top.  Perhaps theirs is a brutal isolation. On some level perhaps they have that in common with the Guantanamo detainees and with many members of the military and their families.

The difference, as I imagine it, is this:  Cheney and Addington, although they may not know it, hold the keys to their own release.  The others don’t.  What is that confines Cheney and Addington and what are the consequences of their confinement?  Who suffers for it?

I believe they are confined by their sense of responsibility and duty to protect the country from people whose willingness to kill on an unimaginable scale knows no moral or legal boundaries.  In fact, killing for them is a sacred obligation rewarded by an eternal life of, of all things, pleasure.  Slitting throats of journalists and other captives, exploding bombs in crowds of innocent men, women and children, blowing up subways, buses, trains and buildings is all in a day’s work.  There is no reason to think that if they could have exploded a dirty bomb in a major metropolitan area they would not have done so.  There is no reason to think doing exactly that is not one of their goals.

People and nations faced with threats of terrorism have a right, a natural right, to defend themselves.  People in positions of responsibility, like Cheney and Addington, have a responsibility, a duty to exercise that right on behalf of the country they serve. And therein, I think, lies the problem. I imagine that Cheney and Addington, to their credit in a way, have made that duty and that obligation personal.  They have taken it on themselves, or had it thrust upon them by circumstance, to be singularly and almost solely responsible for protecting the country.  Given the nature of the threat and the literal unmanageability of government, who can blame them for trying to do the impossible, for trying to clear away every obstacle including the rule of law to effectively preventing acts of terrorism ?  What good are legal principles to people who have died at the hands of terrorists?  Would one have a clear conscience in explaining to the families of those killed and to the nation that the attack could have been prevented if only the law had allowed this or that? I think the answer is likely to be no. Not that I necessarily think that is the right answer.

I don’t think any law trumps the right to defend oneself against a specific, imminent attack by terrorists on American soil. I haven’t thought this through but instinctively it seems that the right of self defense against a specific, imminent attack would – either as a matter of law or of prosecutorial discretion, or of jury nullification – justify actions taken in self-defense.

The same latitude does not apply to every aspect of the effort to prevent every risk of a possible act of terrorism.  But if it were my responsibility, my duty to combat terrorism, and if I took it to be a personal responsibility, I almost certainly would be resolved to “fight fire with fire,”  and to not let “some lawyer” or some “legal technicality” get in the way.   For an unimaginable responsibility to protect the country I would want and, if left to my own devices, I would exercise unimaginable power to keep the country safe.  And I would be wrong.

And I think Cheney and Addington, for the best of motives and in an admirable effort to discharge an unimaginable burden, are misguided.  I think they view themselves as personally and largely solely responsible for protecting the country.  But they are not.  They can not be personally and solely responsible.  Their obligation is to act on behalf of the country; to enable the country to defend itself.  The obligation to defend the country is and must be a shared obligation.

Much of the criticism – increasingly shrill and threatening – directed at Cheney and Addington revolves around the claim that they have acted in disregard of the law and have ordered others to do so as well.  My guess is that their view – sincerely held – is that everything they have done is justifiable.  And here, at last, is the point of this post:  it is, in my opinion and in my experience, difficult and often impossible to understand and respect what law means in any particular circumstance without talking and listening to and respecting the views of others.

This stems from the basic fact that law is a shared enterprise and a collective responsibility.  It does not belong to anyone.  No one is invariably right about law means or what law requires.  In every context, from the office of a sole practitioner to the the White House, there should be a willingness and a practice of talking about what the law requires or permits, an openness to the possibility that law requires something different than what one initially thought.

Given the nature of the responsibility Cheney and Addington believe they have, I do not blame them for being certain that their approach – that of fighting fire with fire – is justifiable.  In my view, Addington has been in a sense practicing law alone.  Sure, one can say that he hasn’t been practicing law at all; that he has been making policy and exercising power, but that begs the question.  He wouldn’t be doing what he is doing if he thought it was illegal.  He has made a judgment about the role of law in the fight against terrorism.   The problem is that his judgment seems largely impervious to other points of view and that he threatens those who openly disagree with him.

In my view, Addington, as a lawyer, has a professional obligation to listen and to take into account other points of view especially because he is exercising such vast governmental power on behalf of the country.  But under the circumstances I think the primary responsibility falls on President Bush.

When he was campaigning, Bush said that if elected he intended to govern like a CEO, that he would surround himself with the best and brightest, listen to their recommendations and make an executive decision.  He has done that repeatedly.  The problem is that while he has been decisive, he hasn’t, so far I can tell, been at all thoughtful.  He has permitted Cheney and Addington to exercise their judgment in the isolation of their unimaginable burden and of their resolute and understandable even admirable determination to fight fire with fire.  As best I can tell, President Bush has never considered the possibility that Cheney and Addington might be wrong or misguided.  Bush has asked too much of Cheney and Addington.  Cheney and Addington have taken too much responsibility for deciding what role the law should play in the fight against terrorism.

Thank goodness that military and civilian lawyers, the judiciary on occasion,  former government and military officials, some members of Congress and the media have forced their way into the conversation about what law means in the fight against terrorism.

From new lawyers on up to the most powerful lawyers practicing law alone – in isolation – is perilous.  In every context, practicing law can be and should be to some extent a shared responsibility.