Well, Nathan, I'd support the death penalty if I thought that that high ranking war criminals and corporate executives who knowingly made exploding cars would get the needle, not just lumpen-class losers with darker skin and snoozing attorneys. The point is, and this applies to your totally hypothetical remark about the rightness of locking up hypothetical lawyers who aid and abet terrorists, you know as well as I do that the death penalty is not going to be applied to the richest and most powerful elements in our society. And you know that union-busting mgt side labor lawyers who advise their corporate clients to violate the law because the NLRB is too feeble to do anything about it are not going to be jailed or indicted or even disciplined.
And you also know that the indictment and criminal prosecution of lawyers who defend politically unpopular clients (it doesn't matter whether they are despicable or not) is not going to deter the nonexistent malfeasance of lawyers who conspire with terrorists, because there aren't any. Whatever your problems with the Guild, we don't do that sort of stuff, and suggesting that we do is an Ashcroftian slander. The problem is not to deal with the sort of conduct you say that such prosecutions could legitimately punish, and I agree that they could, because it's merely hypothetical. The problem is the intended chilling effect on the willingness of lawyers to represent unpopular clients. Bear in mind that ordinary criminal defendants are now being prosecuted under USAPA for domestic terrorism. I do not see why this isn't totally obvious.
> And I see no civil liberties problem with saying
> that, if it's illegal to
> order an illegal action, it's also illegal to
> knowingly convey that order to
> a third party, knowing it will be executed by that
> third party.
>
> Frankly, I find the whole left focus on the civil
> liberties of the guilty
> misguided; we have two million people in jail, so
> all the Miranda rules and
> exclusionary rules have done nada to prevent America
> from being a gulag for
> the poor and non-white. The only limit to
> incarceration has turned out to
> be the budgets of state governments, not legal
> rights.
Yeah, who cares about civil liberties of the guilty, they're guilty, after all. That's a view I'm familiar with from the Seventh Circuit. Pay no mind to me, I'm just a bitter criminal defense lawyer when I'm not defending large and medium corporations against each other or the state.
But you still aren't getting it, and I don't know why. You're a smart guy. You have a Yale law degree and Berkeley Ph.D. You are incredibly informed about politics. So I don't see how you can miss this. We are not dealing with the usual grousing of the criminal defense bar about the disappearance of the Fourth Amendment (prohibiting unreasonable search and seizure, for nonlawyers) for its guilty clients. It's another matter entirely.
The civil libertarian concern on the "left" (is there such a thing?) around the antiterrorist legislation is about the civil liberties of the _innocent_ -- about the thousands of people who get swept up in FBI dragnets and detained indefinitely as material witnesses without legal representation, about the government's announced power, actually put into effect in at least two cases that we know of, to detain US citizens indefinitely without charges or access to legal representation, about its power to forfeit the assets of our organizations on the mere and unchallengeable listing of them "terrorist" organization by the Justice Department.
> I'd far rather see the left focus on compensation
> campaigns for innocents
> wrongly convicted and a campaign to end the drug
> war.
There are a million and two things to be done, and way too few of us to do them. Some people are working on these Quixotic projects. As you know. What I don't get is your talking in ways that suggest that the Quixotic projects of other people are a waste of time, or worse. AndI really don't understand your aggressively arguing, in a way that ignore the real world and the real world political effect of such arguments, for the rightness of hypothetical issues like the prosecution of terrorism abetting lawyers.
jks
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