Fwd: Syracuse speech

From: Nina Monzack <nina.monzack@gmail.com>
Date: May 11, 2011 3:42:05 PM EDT
To: Beau <261penn@gmail.com>
Subject: Syracuse speech

With changes. Attached and copied below.

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: something I’ve experienced in private practice, as a prosecutor, and as a military lawyer in the Judge Advocate General’s Corps. 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 don’t just have a choice as to how we utilize our skills – we have a responsibility to use them justly. 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 in the JAG Corps. I’ve learned it not only for myself, but also for my students: it’s what my fellow JAGs and I tell our 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.” It was not a defense based strictly on a foundation of law, as it ideally should have been. It was instead built largely on the need to justify a premise – that our troops and our intelligence community needed extra-legal latitude to pursue information.

 

The JAG Corps lawyers who actually knew the troops, however, and had seen the war up close, disagreed. In 2003, JAG lawyers from every branch of the military wrote memoranda that repudiated Yoo’s arguments. Yoo’s memo cannot be considered out of context from the JAG response. Together, they form an excellent lesson: It is exactly when the stakes are the highest that the ends do not necessarily justify the means.

 

When our Senate held hearings into those proposed enhanced interrogation techniques a few years after September 11^th, 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, Republican Senator Lindsey Graham – himself a Colonel in the Air Force – 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.”

 

President Kennedy was fond of paraphrasing a bible verse that I think is fitting for lawyers: “To whom much is given, much is expected.” You possess excellent skill, knowledge and judgment – it’s your duty keep in mind the responsibility that comes with them.

 

·          ·          · [pause]

 

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 – just look at John Yoo. The consequences of his memo may be too far-reaching to measure, but it began with a lawyer making a choice. 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.

 

Justice 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. < u>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 many 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 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.

 

Winston Churchill once said that “the price of greatness is responsibility.” That is as true for individuals as it is for nations. You leave Syracuse today with a powerful body of knowledge and skills, but also with an obligation. You must be willing to ask yourself, time after time, if you are choosing what is right, or what is easy. And then you must be willing to face the answer.

 

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.