At a time when conservative radio and TV pundits are pointing fingers at the Obama administration's and the media's hesitancy to label the shooting at Fort Hood a terrorist attack, a panel about the global war on terror at the Federalist Society's annual convention on Thursday avoided the issue entirely.
Instead, the panelists focused on the use of legal ethics rules to further political warfare - especially the ethical issues arising in investigations of political officials, such as the Bush administration lawyers who authored the so-called "torture memos."
Gibson, Dunn & Crutcher's Miguel Estrada said that too often ethics investigations of out-of-office officials are used to meet political ends. Estrada is representing former Office of Legal Counsel lawyer John Yoo, who wrote some of the more notorious memos.
"It is no coincidence that all of the people who find some of the conduct discussed in what are now known as the ‘torture memos’ objectionable are almost to a person – with some exceptions – members of the opposite party," Estrada said. "When we turn the rules of our profession that set us apart into instruments of political warfare, we are heading down a path that we may not be able to get off of."
Cornell University law professor W. Bradley Wendel agreed that using ethics rules as a political tool is "wrong," but said that simply launching an investigation into whether government lawyers breached their ethical obligations by knowingly pushing the limits of statutory interpretation does not have to be politically motivated. "You can have these discussions in a neutral way," he said.
Making aggressive arguments is, said Wendel, "perfectly reasonable and is in some cases necessary, but if you’re going to make a risky argument you should give your client full disclosure as to what the risks are."
Neither Wendel, Estrada, nor Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, who moderated the panel, broached the subject of last week's shooting at Fort Hood that left 13 dead and dozens more wounded. The shooting has become a flashpoint among conservative pundits after it was discovered that alleged shooter Maj. Nidal M. Hasan had come to the attention of the FBI and the Defense Department’s Criminal Investigative Services in December 2008 during an unrelated investigation. At the time, the FBI concluded that communications between Hasan and the unidentified subject of the investigation were consistent with research being conducted by Hasan as a psychiatrist at Walter Reed Army Medical Center.