“Tyrant! You are a tyrant!”
Washington State Justice Richard B. Sanders to Attorney General Michael Mukasey at the annual Federalist Society dinner, 2008
I don’t normally find myself in much agreement with Justice Richard Sanders of our State’s Supreme Court. He is as conservative as I am liberal, and we share little in common other than our age. I believe that he and I took the bar examination together those many years ago.
Justice Sanders has always been outspoken in his beliefs, leaving little for anyone to guess at in terms of his meaning. While I haven’t often agreed with his beliefs, I have always admired his forthrightness. One need not often guess at the meaning of his words, since if you find any ambiguity in them he will promptly clarify his meaning for you.
During the annual Federalist Society dinner this year, Justice Sanders engaged in the above spontaneous outburst several minutes in advance of Attorney General Mukasey’s subsequent physical collapse. The outburst was in response to the Attorney General’s remarks defending the Bush administrations interrogation techniques used in the so-called “War on Terror.” The news media has been fond of playing the outburst in counterpart to the Attorney General’s collapse as if one was the cause of the other, but the two events would appear to have little in common other than in the media’s salacious dreams. Justice Sanders has indicated that the outburst was truly spontaneous and, in fact, has come to regret his specific choice of words. With reflection, he now believes that if he had used the word “tyranny,” instead, he would have properly indicated his dissent from the policies of the Bush administration and not evidenced what appeared to some to be a personal animosity toward the Attorney General.
For once I am in complete agreement with Justice Sander’s remarks (revised version 1.1). Were he to know much about me, he might be as surprised as I am. However, I suspect we both have an abiding belief in the Bill of Rights regardless of our respective political affiliations. This is just one more example of how we should ignore the usual political labels when discussing matters of fundamental right and wrong. Political labels are meaningless in such situations.
The primary definition of “tyranny” is the use of oppressive power by a government. By any stretch of the imagination, the government’s actions at Guantanamo and in secret renditions constitute the use of oppressive power. The government seeks to justify the use of acts that are an anathema to the Bill of Rights on the basis that those suffering the interrogation techniques are not American citizens. They are, however, human beings and the United States is a signatory to the Universal Declaration of Human Rights adopted by the United Nations in 1948. Among its other declarations, Article 5 of the Universal Declaration of Human Rights states:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
This language is reasonably clear and unambiguous, but I am certain that Attorney General Mukasey has several dozen reasons for its inapplicability to those held at Guantanamo. After all, he is a lawyer, and that’s what lawyers often do. As I have previously noted, I am not always proud of my profession when it comes to situations of this kind. Too many of us forget and/or set aside our basic moral codes in our zeal to represent our clients.
There are times when a client should be told that he or she is just plain wrong, and this is clearly one of them. I suspect that Justice Sander’s reaction was initially personal to Attorney General Mukasey based upon his understanding of this dichotomy – a lawyer needs to have a moral base from which he or she will not deviate and, when appropriate, should be prepared to tell his or her client that they are full of beans (as my grandmother used to say) if the client is about to engage in something that violates the attorney’s basic moral code. And, if corrective action from the client is not immediately forthcoming, an attorney should fire the client without regard to the loss of income that will result.
None of us can control much of what happens around us, since we are always subject to outside influences, pressures, events and matters over which we have no control whatsoever. However, there is one single thing that each of us has in his or her absolute control – our personal integrity. No client is worth the sacrifice of my integrity. Whether other lawyers can say the same is up to them to decide, but if they feel to the contrary, they will eventually find themselves in an ethical bind from which there is no escape.
While I have always believed this way, it was, curiously enough, a client that brought the point home to me in the most meaningful way. Many years ago I was involved in helping the client acquire a business in another state. I was a little startled when the opposing attorney called to ask if we would send more than the purchase price to his client at closing. When I asked why we should do that, he indicated that they were deeper in debt than anticipated and needed the excess funds to clear title to the assets we were purchasing. I told the attorney that we might not have a deal and, upon informing the client of the problem, immediately found myself going to a meeting involving my client, the seller and his attorney. The meeting was very difficult as it became clear the seller was in a bad way and about to lose his business if my client did not complete the sale. At the midpoint of the meeting, my client called me into his private office for a one-on-one conference during which the client told me that he was going ahead with the transaction and wanted to explain to me why he was about to do so. Despite my protest that it was his money at stake and that if he wanted to do proceed with the deal I would certainly act on those instructions without further explanation, he insisted that it was critical that I understand his motives for proceeding. After I indicated a willingness to listen, he said 5 words to me that I have never forgotten. They were: “I shook this man’s hand.”
We ultimately consummated that deal because my client had a moral base from which he never deviated in a multi-decade business career. His word was always his bond. At the time when my client died last Winter, he was equally respected for his morality as he was for his business acumen. His was a life well and truly lived.
The sense of self evidenced by my client is what each of us must maintain in order to manage our way through this life. That sense of self is what our government must have in order to maintain legitimacy at home and in the world. The Bush administration’s greatest single failing and its worst fault is that it simply forgot the most basic principles of what it means to be an American. All of its myriad deficiencies seem to arise in some fashion from this fault. It’s as if we have been governed for the last 8 years not by the idiots that we can see, but by aliens who cannot relate to our culture, mores and beliefs.
OK, OK, they are idiots as well as aliens.
So, I can not only relate to Justice Sander’s outburst, I can also, and do, applaud him for having the guts to say what he thought and to leave the room in disgust. If more of us had had the gumption to do so with other government officials in other venues at other times, perhaps these aliens would have returned to the planet from whence they came with their tails between their legs and perhaps our country would not now find itself an international laughingstock and the object of disgust and/or dismay in the eyes of many of those abroad.
The Chief Justice of our Supreme Court has publicly indicated his displeasure at Justice Sanders’ remarks and has said he would speak with Justice Sanders privately about the behavior the Chief Justice would like to see judges on his court display. I would urge the Chief Justice to rethink that statement. Rather than chastising Justice Sanders, the Chief Justice should be congratulating him for having the courage to tell one of the most powerful men in America to his face that he is engaged in the exercise of tyranny. To do so is the essence of patriotism.
I only regret that Justice Sanders didn’t take the next step and remind the Attorney General that, as a lawyer, he is entitled to his own moral code and that it is long past time for him to fire his client and walk away from the evil that the Bush administration has perpetrated.
So from one ardent liberal to one ardent conservative: Justice Sanders, I congratulate you on a job exceedingly well done. Thank you for remembering the importance of personal liberties and holding that importance as a part of your personal moral code.
