Pro Bono for Patriots

My friends and family know that since coming to law school I have often struggled with the idea of becoming a lawyer. My basic perception on the matter has always been that to be a lawyer is to be part of the problem in America, not part of the solution. My way is to paint with a broad brush, be a visionary - and most of my solutions to America's problems involve human freedom and limited government. Most of the legal community is not on board with much of this approach. From the first week of law school we are taught that detail-oriented precision multiplied into unlimited drudgery is the benchmark of success in the profession. The invention of the law review responded to the basic need on the part of big law firms to find students desensitized to long hours of basically meaningless drudgery. To add to this narrowness, law professors are basically uniformly liberal (example: OSU Moritz has no conservative professors, a couple of libertarians, and 50-some liberals), and their discussions rarely allow the question of whether there is a non-government solution.

One of the most annoying things about the profession is the attitude that we take toward national security. The most frequent national security related pro bono work among top national law firms is to adopt a Gitmo detainee. For example, WilmerHale spent $17 million worth of pro bono hours getting the ridiculous SCOTUS victory in Boumediene. Now, I am a big fan of the adversarial system, the right of criminal defendants to counsel, etc. However, the fact that, given a wide range of pro bono alternatives against terrorism, the uniform urge among lawyers was to jump to protect suspected terrorists is troubling, especially since there has not seemed to be a countervailing urge to protect innocents against terrorists. There are many opportunities for creative lawyering that combats Islamic radicals and protects the innocent, but to date they are underutilized.

There are a number of reasons for this, but mostly I think it is a result of the liberal groupthink that lawyers join as soon as they go to law school - all dissenting voices are stifled, they basically never hear an intelligent conservative opinion, and they grow into the profession steeped in an outdated 1960s-era view of government. It is not post-9/11 politics that informs their views, it is Watergate, Vietnam, the Sexual Revolution, and all the other good stuff that law professors grew up steeped in. By drinking in what we are taught in law school, we generally date ourselves back to the youth of our professors. Republicans are bad because of Nixon and so we don't like George W. Bush and get hysterical about his policies and take whatever side is opposite of him, no matter how dubious.

All of this is to say, I was completely elated to discover that some lawyers are willing to break from what is popular and do some meaningful pro-bono work that is not antagonistic toward the Bush administration: helping Iraqi refugees move to the United States after helping U.S. forces there.

Mostly I recommend reading the article, although there was one point I wanted to note more thoroughly: the perverse result of requiring interviews with UNHCR officials for the process of helping refugees get away. This would not be a problem, except that many of the UNHCR interviewers are angry people from human-rights-abusing countries (like Syria!) that hate the United States and are willing to use their positions and punish refugees (rather than helping them like they're supposed to) just because those refugees have helped the U.S. One interviewer said that the refugees who have helped U.S. forces are "America's dogs" - and others are suspected of leaking the identity of refugees to Iraqi militias who then kill the refugees and their families.

I have great admiration for the lawyers who tirelessly work through this broken system to protect the lives of the Iraqi heroes that have saved lives of U.S. forces. From a public policy perspective, however, I think it demonstrates that unconditional multilateralism and U.N. involvement create more problems than they solve.

-BKW

Guantanamo and Incapacitation

Last Thursday's Supreme Court ruling (Boumediene, http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf) that the doctrine of habeas corpus applies to the detainees at Guantanamo Bay is undoubtedly going to make it harder for our armed forces to fight the GWOT and for the justices on my side of the constitutional jurisprudence discussion to roll back the excesses of the Court over the last five decades. Read Justice Scalia's dissenting opinion for a brilliant critique of the Majority's reasoning - and also a novel history of radical Islamic terrorism against Americans. (Not to spoil it, but he begins with Hizballah in 1982 instead of Al Qaeda in 1998 or 2001. A much better starting point.)

However, I'd like to at least make the argument that the real losers in this case are not our terrorist-fighters, but the detainees themselves. The biggest and best reason from a strategic perspective to keep them at Guantanamo, regardless of what anybody says, was to milk them dry of useful intelligence on global terrorist networks and personalities. Hence the interrogations that we hear so much about that involve all these horrible things like dunking people in pools and whatnot. The thing is, with most of them being at least 6 years on in their stay, they are out of actionable intelligence for us - anything they know is stale and probably completely outdated, since their host nations look radically different these days.

Now the only good reason to hold onto the detainees is the very practical one articulated by the administration in Hamdi, Hamdan, and now Boumediene: keeping them there so they can't go back home and pick up AK-47s and IEDs and get back to work. This is a very popular rationale these days for any type of incarceration: we call it incapacitation. If we keep them in prison, they can't be out there causing mischief. The incapacitation justification for punishment is the single biggest reason for our overcrowded prison systems here in the U.S. Keeping criminals off the streets does seem to work in a twisted sort of way - crime goes down because everybody who tends to commit it is forgotten in the pen, living off the government dole at about $30,000 a year. I have serious reservations about our penal system and its predominant justifications, mostly because of how dehumanizing prolonged incarceration is and the dead weight loss it imposes on the economy. Better solutions are for a longer later post.

But the critical point I wish to make here is that incapacitation is sometimes better than the alternative, which in this case is going back to the home country. Look at the Uighur Muslims, for example: a persecuted radical minority from Western China, some of whom we snapped up in Afghanistan learning useful lessons in antistate guerilla action (read: terrorism) from Al Qaeda. Now, supposing that some of them were simply tourists at the time and we send these guys back to China. Immediately they will get to join our Christian brothers and sisters in state detention facilities for their dissenting activities, or possibly get to donate their organs to foreign medical tourists, and eventually their bodies to Bodies, The Exhibition. Or they could stay in the island of Che Guevara, the People's Paradise of Cuba, getting free food and decent lodging while they wait for us to find them a more hospitable home - not in China but also not in our backyard.

After a 3-year hiatus...

.....I googled my own name and inadvertently rediscovered this forgotten blog, most of which was written while I was working at a law firm in Ohio and taking great interest in international affairs, a context that, however unlikely, has repeated itself as I am a summer associate at a law firm in Wilmington OH right now. Most of the hard work in reviving the thing consisted in rediscovering my password, so I should be able to post a couple times this summer.

-BKW