Realism and the Right to an Attorney: Lessons from Iraq
I realize that I have not written in some time, perhaps my longest respite from the blog since it began. But Thanksgiving came and went, and then we were thrown into an election law crisis and my is there much to discuss there, but virtually none of it can I talk about right now (it's coming, it's coming) and beyond that I had almost no time to think about anything, hence the delay. Starting in the New Year, I will be returning to the US after my many months in Baghdad, and will of course be much more assiduous about keeping current the blog.
For today's post, I did want to raise an issue I have been thinking about for some time now, which is Realism and the right to an attorney, spurred by a conference I attended some time ago here in Iraq, where as I've noted Realism has no purchase in the slightest and the strictest forms of formalism reigns, where basically legal interpretation is akin to a mathematical formula that leads one clearly to a right answer, or a wrong one.
At this conference, held some time ago, and I don't want to go into more detail about it at this point, but let's say it was some pretty significant personalities in the world of Iraqi law, and it became clear to me that these fellows had a pretty hard time in justifying the point of an attorney in a criminal trial, and their strict formalism had something of a role.
In the United States, the right to an attorney in criminal cases was established as Realism began to creep into the legal academy, and the processes I submit were related. When one believes, as I do, and as we in the US came to believe, that under just about any given set of facts, there are several equally plausible doctrinal arguments (and we don't have to go to the reverse extreme of Iraq's formalism and say under ANY set of facts, ANY argument can be made to make the point here, the softer one, which I think the huge majority of lawyers in the US would accept as true, will do), then it is rather important to have a lawyer. He is going to know where the strengths of the case are, where its weaknesses are, what arguments can be presented, what cannot, and without this, the defendant is at a tremendous disadvantage.
But if you posit two things--first, a nonadversarial system where the determination of the facts is not done by the attorneys (prosecution or defense) in the first instance, but by an investigative judge (because plainly factfinding is the most important function of any attorney at an adversarial trial), and second, you presume that law is a mathematical formula, the purpose of a lawyer is I will certainly not say nonexistent (that would be plainly untrue) but a little less obvious. That is, if it's a formula, why can't the judge just apply the formula and get to a right answer? Why in the world would you need a lawyer? Or that might be a first instinct at least.
And indeed, you had some pretty senior Iraqi legal personalities saying some rather horrifying things, stuff you'd expect maybe at these tea party rallies or whatever they seem to be having in the US or did at some point anyway (I'm out of the loop, I didn't even realize Tiger Woods was a "moral authority" before this stuff. I thought he was a golfer), but not by important figures. The role of the lawyer is not to defend criminals, but to defend the nation, one guy said. (So my lawyer should take the other side if he thinks it's in the national interest? Seriously?) Or quite commonly it was said that lawyers often don't follow the law, they just say something that helps their clients, they're more interested in getting money from their clients and serving their interests than in serving the law. Of course where we come from if a lawyer isn't zealously advocating for his client by making the best arguments available he's engaging in malpractice. Yet if legal interpretation is a mathematical formula, making good arguments that are "wrong" is clouding analysis, not supporting a fundamental right. This I heard often enough to be rather depressed by it.
To be absolutely clear, the Iraqi constitution does contain an absolute right to an attorney in criminal matters. And the argument for it can be made, and indeed was made quite eloquently by the head of the Iraqi Bar Association at the conference, even in the ultra formalist mindset. Simply, the judge can err in his mathematical derivation. We know, the IBA head said, that this happens, we've seen reversals at cassation of convictions made at trial and sustained on the first appeal. So the lawyer is a defender then not of the nation, but, in his words, of truth, of making sure the derivation is right and if not right to the derogation of the client, to fix it. That certainly does restrict the lawyer's role in a manner that would pretty clearly be unethical in the US context (I can make it an argument, I think it will work, it is nonfrivlous and legitimate, it's entirely unethical in our context not to present it because the lawyer happens not to like it or find it "true" whatever that means in legal argumentation) but it certainly points to why a lawyer might be necessary. And certainly the man has a point. If it is a mathematical formula, clearly it's not an easy one if there are reversals at cassation.
Still, given this cultural difference alone, it shouldn't be hard to imagine the daunting task any group of American lawyers would have advising Iraqis on much of anything in a manner that is likely to succeed. And I haven't even touched forensics, or the role of confessions, or much of anything else.
HAH
For today's post, I did want to raise an issue I have been thinking about for some time now, which is Realism and the right to an attorney, spurred by a conference I attended some time ago here in Iraq, where as I've noted Realism has no purchase in the slightest and the strictest forms of formalism reigns, where basically legal interpretation is akin to a mathematical formula that leads one clearly to a right answer, or a wrong one.
At this conference, held some time ago, and I don't want to go into more detail about it at this point, but let's say it was some pretty significant personalities in the world of Iraqi law, and it became clear to me that these fellows had a pretty hard time in justifying the point of an attorney in a criminal trial, and their strict formalism had something of a role.
In the United States, the right to an attorney in criminal cases was established as Realism began to creep into the legal academy, and the processes I submit were related. When one believes, as I do, and as we in the US came to believe, that under just about any given set of facts, there are several equally plausible doctrinal arguments (and we don't have to go to the reverse extreme of Iraq's formalism and say under ANY set of facts, ANY argument can be made to make the point here, the softer one, which I think the huge majority of lawyers in the US would accept as true, will do), then it is rather important to have a lawyer. He is going to know where the strengths of the case are, where its weaknesses are, what arguments can be presented, what cannot, and without this, the defendant is at a tremendous disadvantage.
But if you posit two things--first, a nonadversarial system where the determination of the facts is not done by the attorneys (prosecution or defense) in the first instance, but by an investigative judge (because plainly factfinding is the most important function of any attorney at an adversarial trial), and second, you presume that law is a mathematical formula, the purpose of a lawyer is I will certainly not say nonexistent (that would be plainly untrue) but a little less obvious. That is, if it's a formula, why can't the judge just apply the formula and get to a right answer? Why in the world would you need a lawyer? Or that might be a first instinct at least.
And indeed, you had some pretty senior Iraqi legal personalities saying some rather horrifying things, stuff you'd expect maybe at these tea party rallies or whatever they seem to be having in the US or did at some point anyway (I'm out of the loop, I didn't even realize Tiger Woods was a "moral authority" before this stuff. I thought he was a golfer), but not by important figures. The role of the lawyer is not to defend criminals, but to defend the nation, one guy said. (So my lawyer should take the other side if he thinks it's in the national interest? Seriously?) Or quite commonly it was said that lawyers often don't follow the law, they just say something that helps their clients, they're more interested in getting money from their clients and serving their interests than in serving the law. Of course where we come from if a lawyer isn't zealously advocating for his client by making the best arguments available he's engaging in malpractice. Yet if legal interpretation is a mathematical formula, making good arguments that are "wrong" is clouding analysis, not supporting a fundamental right. This I heard often enough to be rather depressed by it.
To be absolutely clear, the Iraqi constitution does contain an absolute right to an attorney in criminal matters. And the argument for it can be made, and indeed was made quite eloquently by the head of the Iraqi Bar Association at the conference, even in the ultra formalist mindset. Simply, the judge can err in his mathematical derivation. We know, the IBA head said, that this happens, we've seen reversals at cassation of convictions made at trial and sustained on the first appeal. So the lawyer is a defender then not of the nation, but, in his words, of truth, of making sure the derivation is right and if not right to the derogation of the client, to fix it. That certainly does restrict the lawyer's role in a manner that would pretty clearly be unethical in the US context (I can make it an argument, I think it will work, it is nonfrivlous and legitimate, it's entirely unethical in our context not to present it because the lawyer happens not to like it or find it "true" whatever that means in legal argumentation) but it certainly points to why a lawyer might be necessary. And certainly the man has a point. If it is a mathematical formula, clearly it's not an easy one if there are reversals at cassation.
Still, given this cultural difference alone, it shouldn't be hard to imagine the daunting task any group of American lawyers would have advising Iraqis on much of anything in a manner that is likely to succeed. And I haven't even touched forensics, or the role of confessions, or much of anything else.
HAH
I don't know how you do it. I became tense just reading your basic overview.
All I can say is keep soldiering on, soldier, and Iraq is lucky to have your input.
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HAH
Could you please discusses the recent saga of Al-Fakah oil field which Iran had occupied some news telling they back off some saying they occupying more, the main point here is it SOFA have something US should reacts with Iraqi or support Iraqis even in UN and other international bodies in this matter, what you take in legal terms.
Thanks
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The interesting thing about SOFA is that the US isn't permitted to leave the bases without an official Iraqi request, and I'm not sure this government wants to ask the Americans to remove the Iranians, it's sort of humiliating and an admission of weakness.
I do agree with your broader point that one would think that if the US was going to station troops in Iraq, it should be extremely protective of Iraq's sovereignty, and it's hard to imagine a more obvious violation of national sovereignty than just taking over territory you decide is yours on the basis of a 1975 treaty.
HAH
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