Subject:

Fwd: Speech 5.10.11

From:
"Beau" 261penn@gmail.com
To:
"Kaufman Ted" tedkaufman@comcast.net, "Snyder-Mackler Alex" smacklera@gmail.com, "Biden Hunter" hbiden@rosemontseneca.com, "Valerie Owens" valerie.o@joesladewhite.com
Date:
2011-05-10 11:22
Attachments:
syracuse.law.5.10.11.docx


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Begin forwarded message:

From: Lea Carpenter <lea.carpenter@gmail.com>
Date: May 10, 2011 10:29:30 AM EDT
To: Beau Biden <261penn@gmail.com>, Beau Biden <beaub@comcast.net>
Cc: Nina Monzack <nina.monzack@gmail.com>
Subject: Speech 5.10.11

The changes I made are subtle, but I think the Ideas now flow clearly one to
the next. The Frame remains the Law, with the Military acting as the
singular Example. I hope you like "Here are my assumptions" -- I think this
phrase is strong, and serves to ground some of the more theoretical
language. Full text below, too.

________________________

COMMENCEMENT ADDRESS BY THE DELAWARE STATE ATTORNEY GENERAL

TO GRADUATES, FAMILY MEMBERS AND FACULTY

SYRACUSE UNIVERSITY COLLEGE OF LAW



Syracuse University

Syracuse, New York



May 13| 2011



THE ENDS DO NOT ALWAYS JUSTIFY THE MEANS



Thank you. Good morning. It is so good to be back here. It is truly an
honor. [Insert specific thank you to: honored guests, Deans, family
members.] Syracuse is a uniquely meaningful place for my family and me. Our
roots here run deep. My father, mother, and I have all been Syracuse
students, but this school is more than our alma mater – it’s part of our
foundation. I am profoundly grateful for this opportunity to address you
from this side of the room. I sat in your seat, not too long ago, actually.
At least, it doesn’t feel so long. Perhaps for some of my professors it
hasn’t been long enough.



Yet because I’m not so far away from the day I graduated from Syracuse Law,
I won’t pretend to offer you the wisdom that a lifetime of experience can
provide. I would like, however, to offer you an observation about being a
lawyer. I believe the practice of law is one of the most honorable
professions in our society. Not only in how we interact with our colleagues,
but also in how our actions affect our clients, our adversaries, our
families and our world. The path is not without challenges. In the 15 years
since I graduated from this great school, I have seen that, for many of us,
it becomes increasingly easy to rationalize our actions in the name of
expediency when facing difficult decisions – to choose a path where the ends
always justify the means. I want to ask you to challenge that. I want to ask
you to be the guardians of a more complicated truth: that the means are
sometimes more important than the ends.



What does that statement, “The Ends Justify the Means” mean? Do the ends
justify the means?  I believe the question needs to be asked irrespective of
the environment: on the battlefield, in the courtroom, in our political
discourse. We have a choice as to how we utilize our skills. It’s important
to our profession, and it’s important to our selves. As human beings, our
ability to rationalize cannot be underestimated. But neither can our will.
We can choose to fight against rationalizing when considering whether the
ends always justify the means, and making this choice makes a very real
difference.



The military certainly doesn’t preach or expect that the ends justify the
means. I’ve learned a lot about this as a military lawyer in the Judge
Advocate General’s Corps. I’ve learned it not only for myself, but also for
my students: it’s what my fellow JAGs and I tell our young soldiers heading
into battle. In war, the standard is clear. It is the means of our conduct
that matter. Because guess what: when the law is bent, values bend, too.
When values bend, culture erodes. Culture, in the military, is paramount.
Lawyers, too, have a culture, and its rules are largely self-imposed. As you
enter this field, you have an opportunity and obligation to maintain a
culture – both inside yourselves and in the way you practice the law every
day.  



Culture is its own reward. It has a pervasive and resounding impact on
everything it touches. When military culture does not hold, for example, a
larger faith is at risk: not only a soldier’s faith in himself and his peers
but also the public’s faith in a strong defense.



What insures a strong defense? That question was visceral and freighted when
posed to the nation’s top attorneys ten years ago. Assistant Attorney
General John Yoo wrote a famous memo that you probably studied in your time
here. The “torture memo,” as it became known, was a defense of “enhanced
interrogation techniques.” That defense rested less on our law than it did
on a fundamental misperception: that our troops and our intelligence
community needed extra-legal latitude to pursue information. But guess what?
The lawyers who actually knew the troops, and had seen the war up close,
disagreed. Yoo’s memo cannot be considered out of context from the JAG
response. Together, they make an excellent lesson: It is exactly when the
stakes are the highest that the ends do not necessarily justify the means.



Most of you will never see a battlefield, but you live in a time of war.
 When our Senate held hearings into those proposed enhanced interrogation
techniques a few years September 11th, the JAG memos were submitted to the
record, and they said the same thing: do not put our culture at risk. Do not
confuse being tough with being expedient. The JAGs wanted what the Senators
wanted, and that was the same thing all Americans want, always: the safety
of our citizens. Yet the JAGs were the ones you might think most likely to
argue for leniency as regards the boundaries of acceptable wartime behavior.
Being representatives of the military, they were in the best position to get
it. But they did not argue for leniency. They did not rationalize. They
argued against “exceptionality.” They argued against it on the grounds that
it would change the culture.



In the hearings, Senator Graham called the JAGs words “a warning shot across
the bow of policymakers, that there are certain corners you cannot afford to
cut because you will wind up meeting yourself.”



The question of ends versus means is presented all the time in the practice
of law. We all know that when the world thinks of lawyers, not everyone
thinks of Atticus Finch. We want counselors who fight for what’s “right,”
but we live in a culture where lawyers often fight for what the client
demands, and the more powerful the client the more compelling the demand.
One reason I think it’s illustrative to consider the military as a model is
that there, the decisions are just as complex, and it is the code and the
culture that allow the process of making them to be less so. Think about a
young American stationed on a remote outpost in the Korengal Valley, in
Afghanistan. One day, that soldier is forced to make a decision. It is not
about something subtle or intellectual, like enhancing an earning, or
editing a brief. That decision is about something immediate and real, like
saving a life—or losing his own. In that moment that soldier is guided by
rules of conduct. He is guided by means. If the rules are not clear, a slope
has been oiled. And when slopes are oiled, you can only ride them in one
direction.



The decisions you’ll make as lawyers may not determine whether someone lives
or dies, but they will have an impact that reaches farther than you may
realize. You have the chance to make a difference. The way you have been
taught to think here at Syracuse will not let you off the hook easily from
seizing it. Just because it looks like the world cannot be changed, don’t be
passive. Just because it looks like your views are not reinforced by a
majority of your peers, don’t change your views. Just because you think the
path that’s right for you might be lonelier, longer, or less destined for
traditional success than paths taken by others, don’t be afraid to take it.
If you choose your means well, you’ll make peace with your endings.



A lot has been written on the subject of Means and Ends in the law. Consider
this quote, from a lawyer with whom you are all familiar:



Our government is the potent, the omnipresent teacher. For good or for ill,
it teaches the whole people by its example. Crime is contagious. If the
government becomes a lawbreaker, it breeds contempt for law; it invited
every man to become a law unto himself; it invites anarchy. To declare that
in the administration of the criminal law the end justifies the means – to
declare that the government may commit crimes in order to secure the
conviction of a private criminal—would bring terrible retribution. Against
that pernicious doctrine this court should resolutely set its face.



Brandeis said that in 1928, another time in our history when America was
poised on the edge of seismic shifts in culture, politics, and international
standing.



What Brandeis said is as applicable to individuals as it is to governments.
You will be lawyers in your profession – but now, knowing what you know, you
will also be lawyers in your communities and among your friends and
families. In those more private—yet equally challenging—“courtrooms,” you
will face similar cycles of testing and re-testing. And you will find peace
if there are certain rules that are not malleable. Your conscience, for one.
Your conscience should not be malleable. Your values, for another. These are
your “means.” Along with the learning you now possess, these are the things
that will guide you.



When you disobey your values you—to take Brandeis’s words—“breed contempt
for” values everywhere.



Four hundred years before Brandeis, another man—not a lawyer, but a
poet—wrote about ends and means. Niccolo Machiavelli was writing to his head
of state, the Prince. It is better to be feared than loved, he wrote. Well,
that concept is being proven false around the world today. The end justifies
the means, he wrote. But the Renaissance princes were not known for codes of
honor. Machiavelli lived and wrote in a different world from the one we live
in today. He wrote for career survival; he wrote what his client wanted to
hear. And he wrote to justify his own end, in doing so promoting the
opposite of what the finest lawyers and advisers I know are trying to
promote today.



When faced with the choice between the values espoused by Brandeis, or the
expediency of Machiavelli, we know what Atticus Finch would choose. We know,
too, that choosing what is right is usually not the same as choosing what is
easy. That’s why what we teach in the military is not a set of rules to be
followed if they dovetail with notions of victory. What we teach are basic,
unalterable tenets, to be followed without exception. We teach that the end
does not justify the means. We teach it as an absolute because we cannot
afford to forget it – not as individual soldiers, not as a military, and not
as a nation.  I have seen it played out as a JAG officer, as an attorney,
and as an elected official.



The culture of politics is of course different from the culture of the
military, or the culture of the law, but having been afforded the chance to
see a bit of all three, I am troubled that the message implicit in many of
our current political debates is that the ends justify the means. Many on
the right and the left have become comfortable with that concept. And if
that concept takes hold in a government, where does it take hold next? If
our politicians are focused primarily on the ultimate goal—an end—then the
importance of the path is cast aside. And whether electively, legislatively,
or financially motivated, the law is then bent under the guise of dubious
reward.



Today, this week, in the still-short wake of an historical act of heroism
and closure for Americans, it is easier than ever to put forth an argument
on Ends and Means. But when something seems easy, it is time to question our
assumptions, and to challenge our potentially misleading interpretations.



Here are a few of my assumptions: Moral codes matter. We are interdependent.
 While we cannot predict the ends—whether in an upcoming trial, an ongoing
revolution, or a NCAA game you’ll watch this weekend—we know that the means
of our conduct are driven by our conscience, our values and our knowledge. 
And, above all, by our laws.



The means of our conduct cannot not driven by predictions. The means cannot
be driven by placing politics above our beliefs, or above the safety of our
troops. And the means should not be driven by scholarly interpretation. Some
scholars might take issue with that calculus, but that is why we balance our
scholars with JAGs. That line is meant to be funny, by the way.



If the arc of history does bend toward justice, as Dr. King said, as our
President said, and as our Vice President said, too, from this stage, guess
what: you are on that arc. You are the arc. And you are in a position to
help speed the bend. Do not lose your faith in yourselves, and do not lose
your faith in our rule of law. It is there to guide us.



Thank you. God bless you. And may God bless and protect our troops. They are
fighting for your future, too, whatever that future may hold.












_________________

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