Andrew Taslitz has a comment on Concurring Opinions today: Government Lawyers’ Ethical Obligations and the War on Terror. This piece could apply equally to trial counsel and staff judge advocates, as well as defense counsel. The comment is about the current call(s) for action against the Bush administration lawyers and torture memos.
These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.
The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent.
I well remember the day I told the CO something about a case he didn’t want to hear. He was taking his jacket off at the time. I felt the wind of it as the jacket passed my face; he’d thrown it at me and I was able to move backwards. He did say thank-you when I picked it up and gave it back. We had other interesting times, but I obviously chose the moment differently.