Subject: Fwd: Speech 5.10.11
From: "Beau" <[email-masked]>
To: "Kaufman Ted" <[email-masked]>, "Snyder-Mackler Alex" <[email-masked]>, "Biden Hunter" <[email-masked]>, "Valerie Owens" <[email-masked]>
Date: Tue, 10 May 2011 11:22:19 -0400

Confidentiality Notice:  This electronic message and any attachment(s) are confidential and may be subject to the attorney/client privilege and/or work product immunity.  This e-mail is only for the use of the intended recipient(s).  If you have received this e-mail in error, please notify the sender immediately by replying to this e-mail, then delete this message and any attachment(s) from your system.  Any unintended transmission expressly shall not waive the attorney/client privilege or any other privilege.

Begin forwarded message:

> From: Lea Carpenter <[email-masked]>
> Date: May 10, 2011 10:29:30 AM EDT
> To: Beau Biden <[email-masked]>, Beau Biden <[email-masked]>
> Cc: Nina Monzack <[email-masked]>
> 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.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> _________________
> 
>=2