Tuesday, January 04, 2005

Re: Torture and Legalese

----- Original Message -----

From: "Dean Lawrence R. Velvel"
To: "Doyne Loyd"
Sent: Tuesday, January 04, 2005 2:20 PM
Subject: Re: Torture and legalese

Via Email (dloydmd@yahoo.com)

Dear Dr. Loyd:

Thanks for your email, which shall be posted, along with this response. You raise a lot of important questions, some of which have been vexing the legal profession for quite a while. To answer them fully would require much space. I shall confine myself, therefore, to two brief points.

The interrelated questions of whom a lawyer represents, and how far does his duty of fidelity to that client alone extend, has arisen with regard to corporations, governments, criminals and others. In the last 20 to 30 years it has been a regular problem, one occasionally addressed by makers of rules on ethics and/or by government agencies. All I will say about it here -- because a fuller exposition would be quite lengthy -- is that I believe most lawyers would agree that at some point other factors take precedence over loyalty to a client. The differences among lawyers reside in the question of where that point lies. My own view is probably far more toward the
"politically liberal" side of the spectrum than, I believe, the view of most lawyers. Most lawyers, I would hazard, think that loyalty to the client, and the client alone, extends to things that you or I might think quite immoral. I wish my belief about this were incorrect, but am afraid it is not.

As for the great phrases of the Declaration of Independence, Lincoln realized that they are the heart and soul of this nation, but to lawyers of the 20th and 21st Centuries they were and are generally irrelevant (although they were not irrelevant to Justice William O. Douglas). I confess that, ever since I began to realize that lawyers care not a whit about either the Declaration of Independence or the (greatly phrased) Preamble to the Constitution, I have found myself at a complete loss to sympathize with such an attitude or with the types of legal "reasoning" which foster it. Such "reasoning" strikes me as ignorant of history and uncaring of justice. Again, thanks for your email. I hope to hear from you again in the future.

Best regards.
Lawrence R. Velvel

----- Original Message -----
From: "Doyne Loyd"
Sent: Monday, January 03, 2005 8:25 PM
Subject: Torture and legalese

In your comments, Thursday, December 16, to Scott Horton, you present what is essentially an ethical as opposed to a purely legal argument. Professionals have I believe a fiduciary relationship with a client/customer/patient/etc. I believe that a fiduciary relationship always or almost always takes precedence over any other relationship. (Again I am not a lawyer. Corrective comments would be instructive to me.)

For a professional serving in the government, who is the "client?" I would argue that the people of the country is the client. If indeed that is the case, an argument that betrays the trust of the people is unprofessional or unethical regardless of the technical brilliance since it betrays the fundamental trusting relationship between the people who you represent as a professional and you, the professional.

Now the other side of the argument is that as a professional in a government capacity you represent the institution in the same way that a corporate lawyer represents the corporation.
However if this second position is correct, there is no such thing as the "public trust." I am not a lawyer as noted earlier, much less a constitutional lawyer and therefore I do not know the relevance of the Declaration of Independence to all of this in a legal sense. However, in an ethical sense, I believe that the Declaration of Independence is essentially a basic document on human rights. It is a document that precedes in time both the Constitution of the United States and the Geneva Convention. The argument is: "We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

It may be technically correct to argue that non-citizens have no rights under the US Constitution or in the case of terrorists under the Geneva Convention. However, it is unethical when the argument violates fundamental principles of human rights as defined in the UN's Universal declaration of human rights which includes this point: Article 6 Everyone has the right to recognition everywhere as a person before the law.

As the bottom line, ethically and I would suspect legally as well, everyone has a right to basic human rights, period. To set about to create a legal argument otherwise is of some theoretical interest in that it shows the need for legal reform in order for the law to be consistent with fundamental rights. However, to use such an argument as the basis for clear-cut violations of human rights is to say the least immoral. And by the way, these and related opinions have gotten me enough trouble that I have retired.

Doyne Loyd, MD
Pie Town, NM

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