Exploring the nether regions of Stewart Baker’s head is fascinating, if a bit too dark and moist for my sensibilities. Still, he offers at Volokh Conspiracy the rationale for the unthinkable, sometimes the laughable, and he does it with a straight face. And in front of Congress! Again.

Baker offered testimony before the Senate Judiciary Committee, those great buncha guys who make sure that federal judges know how to deal with bad dudes like our clients, and are also trying to figure out how to explain why FISC, the secret Foreign Intelligence Surveillance Court, doesn’t need fixing. Enter Baker:

What about appointing counsel in FISA matters?  Well, we don’t appoint counsel to protect the rights of Mafia chieftains or drug dealers.  Wiretap orders and search warrants aimed at them are reviewed by judges without any advocacy on behalf of the suspect.  Why in the world would we offer more protection to al Qaeda?

Apparently, nobody told Baker that not everybody the government goes after is a Mafia Chieftain, drug dealer or al Qaeda terrorist. It’s easy to understand his confusion, as it’s hard to see through the prism of governmental absolutism. Plus, it can get awfully dark and musty down there.

In any event, Baker seems unaware of one pretty huge difference, that drug dealers are tried in court where wiretaps are subject to challenge. FISA warrants, not so much, and certainly not when they cover the entirety of the United States population. Granted, it would take a really big courtroom to make it work, but still, it’s kind of a big difference.

I understand the argument that appointing counsel will provide a check on the government, whose orders may never see the light of day or be challenged in a criminal prosecution.  But the process is already full of such checks.  The judges of the FISA court have cleared law clerks who surely see themselves as counterweights to the government’s lawyers.

So baby lawyers, lacking anything more than law review credentials and perhaps a philosophical symmetry with their judge, are the bulwark between good law and bad? Even assuming this wasn’t laughable, it would subvert their duty to the judge for whom they work. They aren’t advocates, nor should they be. Is Baker suggesting that judges hire law clerks whose purpose is to pursue an agenda apart from their judge? Not too likely, yet close enough for Baker to say “surely?”

The government’s lawyers themselves come not from the intelligence community but from a Justice Department office that sees itself as a check on the intelligence community and feels obligated to give the FISA court facts and arguments that it would not offer in an adversary hearing.  There may be a dozen offices that think their job is to act as a check on the intelligence community’s use of FISA:  inspectors general, technical compliance officers, general counsel, intelligence community staffers, and more.  To that army of second-guessers, are we really going to add yet another lawyer, this time appointed from outside the government?

Who could possibly be more deeply concerned about the civil rights of the public, including those Mafia Chieftains and drug dealers you don’t like too much, as opposed to the need for safety from a potential terrorist threat, than someone who gets a paycheck from the Department of Justice?  After all, they work for the government, and doesn’t that make them pure as the driven snow, unlike those mean, nasty former DOJ lawyers who now get paid the big bucks to sit on the other side of the desk and drink from teacups as their clients make a proffer?

For starters, we won’t be appointing a lawyer.  There certainly are outside lawyers with clearances. I’m one. But senior partners don’t work alone, and there are very few nongovernment citecheckers and associates and typists with clearances. Either we’ll have to let intercept orders sit for months while we try to clear a law firm’s worth of staff – along with their computer systems, Blackberries, and filing systems – or we’ll end up creating an office to support the advocates.

This will no doubt come as a shock to Stewart, but not everybody has a dozen associates to carry their brief case.  No, really, Stewart. Stop laughing at me, dammit. Coming from government service, it’s completely understandable why Baker wouldn’t know anything about this.

And who will fill that office? I’ve been appointed to argue cases, even one in the Supreme Court, and I can attest that deciding what arguments to make has real policy implications. Do you swing for the fences and risk a strikeout, or do you go for a bunt single that counts as a win but might change the law only a little? These are decisions on which most lawyers must consult their clients or, if they work for governments, their political superiors.  But the lawyers we appoint in the FISA court will have no superiors and effectively no clients.

Therein lies a potential difference in arrogance, where Baker sees himself as “policy maker” while most lawyers see themselves as, well, lawyers. We argue our side and the government argues its side. It’s not our job to make policy, but to defend the mandate. Not really a tough thing, Stewart, as long as you don’t have images of yourself as having the policy of the United States of America resting on your very important shoulders. Then again, if you believe that you alone know what’s good and right for America, and are determined to make sure that a nation’s policy meets with your personal approval, your issues are a little worse than mere arrogance.

To update the old saw, a lawyer who represents himself has an ideologue for a client.  In questioning the wisdom of special prosecutors, Justice Scalia noted the risk of turning over prosecutorial authority to high-powered private lawyers willing to take a large pay cut and set aside their other work for an indeterminate time just to be able to investigate a particular President or other official.  Well, who would want to turn over the secrets of our most sensitive surveillance programs, and the ability to suggest policy for those programs, to high-powered lawyers willing to take a large pay cut and set aside their other work for an indeterminate period just to be able to argue that the programs are unreasonable, overreaching, and unconstitutional?

I hate to be the one to tell you this, Stew, but government lawyers don’t really have clients either. You do what your bossman tells you to do, and take the administration’s policies to heart. Good and evil is whatever you’re told it is, and nobody asks you to hold their hand.

As for who would want some “outsider” fighting the government that loves us dearly and knows what’s best, that would be the American public. Newsflash, pal: nobody trusts the government. Ronald Reagan didn’t, and nobody since. And if our constitutional rights rely on the goodwill of a government lawyer or apologist (sorry, Stew, but it had to be said), then they’re not worth squat.

Now for the real question: Did Baker go out for lunch with Jess Sessions (R-AL) after giving testimony? If so, who paid?