Tuesday, July 04, 2006

Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers, Anyway?

Marty Lederman

Well, Sandy's provocative challenge certainly deserves a response. Unfortunately, I don't have time for a full retort right now, because I'm consumed with other projects. Fortunately for me, I've already drafted or signed a couple of things that are a partial response, at least. One is this memo that I drafted along with 18 of my former OLC colleagues, articulating what we think are some of the "best practices" of that office. It is concedely aspirational: Although it describes, I think, the way the office usually operates, at least at its best, obviously it is not hard to find counterexamples, from any and all Administrations.

Also, my very first post to this blog identified some of the process-based ways in which OLC opinion-writing can go astray, with reference to the contrast between the two OLC torture memos.

Finally, last New Year's Eve, Jack published a post raising questions about government lawyering very similar to those that Sandy raises. In response, I drafted the following post that evening. (I'm not big on New Year's Eve celebrations.) Because I didn't have time to work on it, it never got to the point where I was satisfied with it. I'm still not satisfied. But I'm not going to work further on it anytime soon, so I thought it might be worth publishing now, at least as a rough first cut at some of the questions Jack and Sandy raise. And since its subject is, in some sense, constitutional "faith" -- namely, what it means for the President to "faithfully" execute the law -- perhaps it's appropriate to publish it now, in response to my far-too-generous-with-praise friend Sandy. All caveats relating to such a rough draft apply, of course:

Jack's post on lawyering raises some very interesting questions. Surely he's right that lawyers -- really good, respected lawyers -- have always been available to defend the indefensible. (By "indefensible" here, I am not referring, as Jack principally is, only to that which is morally indefensible, such as waterboarding; I'm also referring to conduct that might be perfectly acceptable from a policy perspective but that doesn't have a legal leg to stand on, such as the NSA wiretapping program.)

One minor observation: Although Jack is surely correct that some such lawyers are "rhetorical whores," willing to justify whatever their clients wish, or whatever will support their preferred political or policy objectives, that doesn't describe all that's occurring in these cases. I assume that Cass Sunstein, for instance, truly believes that the AUMF may have superseded FISA. I think that conclusion is egregiously, indefensibly wrong -- but Sunstein is not arguing it because a client has asked him to push the envelope or because he'll reflexively defend whatever the Bush Administration does: He's speaking his mind. Similarly, although many lawyers who tried to defend Bush v. Gore (including the writers of the per curiam) almost certainly did not believe what they were arguing, there are those (Nelson Lund, for example) who are, from all that appears, sincere defenders.

But I'd like to focus here on a more fundamental question that Jack's post raises but doesn't discuss in detail: whether lawyers -- especially government lawyers -- should be so "creative," at least in cases (unlike torture or slavery) where the legal judgments are not in the service of moral evil. "Is" doesn't equal "ought," of course, and so the question arises: Is it acceptable for government lawyers to (in Jack's words) "push the envelope on behalf of their client," where they believe that the policy being supported is morally defenisble? And, if so, to what degree?

The question is much, much harder than most people think -- and it's very different from the same question as applied to lawyers in private practice. If a private client asks a lawyer to push the legal envelope, client and lawyer both understand that there's a risk that the advice will turn out to be wrong in the eyes of the authorities, with possible legal consequences for the client. If the lawyer is any good, the advice will reflect such risks. In other words, the lawyer's job is to tell the client both what the "best" view of the law is, and what is at the outer bounds of legal arguments that might (but probably won't) carry the day.

The Executive, however, is the prosecuting entity. Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

Given this lawmaking function of DOJ advice, is the DOJ lawyer obliged to provide the best view of the law, or is pushing the envelope, within the outer bounds of the "reasonable," acceptable? I start from the proposition that I hope all will share that it is the role of Executive lawyers -- the AG and OLC lawyers, in particular -- to assist the President in his constitutional obligation to faithfully execute the law. OK, but how broad is the range of faithfulness, or fidelity? And "faithful" to . . . what, exactly?

As a general matter, OLC attempts to give the President the "best" view of what the law allows, where "best" is generally understood to mean the answer to which the governing legal doctrines would most likely point (more or less akin to what a lower court does when it's trying to follow the "rules laid down" by the Supreme Court). If that view means that the President cannot undertake his preferred course of action, then in that case OLC has performed its proper role -- it's really the only entity within the Executive branch that is in place to impose such legal limits -- and OLC ought then to work with the White House to see if there is some other, lawful way to accomplish the President's ends, at least in part.

But let's be honest -- such a typical "neutral expositor" model does not invariably describe the advice that OLC and DOJ give the President, especially in matters related to war and national security. Historically there have been clear cases in which what the AG or OLC has done is to try to come up with a justification for Executive conduct that lies at one extreme of the range of possible "reasonable" legal answers, but that is fairly clearly not the "best" view of the law.

Perhaps the most notorious example was Attorney General Robert Jackson's opinion (prior to the Lend-Lease Act) that existing statutes gave the President the authority to acquire from the British Government rights for the establishment of naval and air bases in exchange for over-age destroyers and obsolescent military material. See 39 Op. A.G. 484 (1940). This opinion was roundly (but not uniformly) criticized as being an extremely tendentious, that is to say, mistaken, reading of the relevant statutes -- but obviously, Jackson was comfortable that it was within the bounds of what the legal culture would allow, even if he did not think that it represented the "best" legal answer to the important question that was posed to him.

Another, more modern example occurred in 1986, when Samuel Alito was one of the Deputy Assistant Attorneys General at OLC. A statute required the Executive to give prior notice of covert intelligence activities to eight members of Congress, and post-conduct notice to the intelligence committees "in a timely fashion." President Reagan did not give prior notice of the Iran-Contra affair to anyone in Congress, and delayed the post-conduct disclosure on a completely discretionary basis. OLC wrote an opinion concluding that this failure to provide notice satisfied the statutory mandate, see 10 Op. O.L.C. 159 -- what Professor Jeff Powell described as "the bizarre outcome . . . that a statute meant to limit the President's discretion places no practical limits on that discretion." The President's Authority Over Foreign Affairs at 13 (2002). As Powell rightly explains, the OLC opinion "is an exercise in statutory construction only in the Pickwickain sense that it assigns meanings to the words Congress enacted. If, as is generally assumed, the purpose of statutory construction has something to do with identifying and applying what presumable was the will of the legislating body--however difficult that may be in practice and even in theory--the opinion is a simple and indeed unembarrassed failure as a reading of section 501." (This is basically my view of DOJ's current reading of FISA and the AUMF -- but obviously others disagree.)

The key word here is "unembarrassed." OLC was more than willing to offer what was very plainly not the best reading of the statute, but a reading that OLC thought was at the far edge of the plausible and that least impinged on what OLC viewed as the President's constitutional prerogatives. (The statutory construction in the 1986 Timely Notification opinion was actually not the most outrageous thing about it -- that honor is reserved for the opinion's understanding of Congress's authority in the fields of foreign affairs and national security. But that's a subject for another day . . . .)

From everything I know, this is the model of legal advice that President Bush has expected of his lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priest's remarkable story the other day about the aggressive legal interpretations in this Administration in support of CIA covert action, there's this wonderful quotation from Deputy Director of National Intelligence Michael Hayden about their approach to the law:

"We're going to live on the edge. . . . My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

This confirms what I've read in several places and what I've heard from numerous lawyers in the Executive branch: What the White House has asked of them is not to provide the "best," or most objective, view of the law, but instead to read the law as aggressively as humanly possible so as to give the President the broadest possible discretion in preventing another domestic attack: Don't worry so much about exactly where the line is -- it's ok to get chalk on your spikes. Lives are at stake. [UPDATE: Confirmation from Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it."]

They are completely unapologetic about this. And I don't think it is obviously the wrong perspective to be using (even if it is very troubling if all the lawyers in the Executive Branch are using this standard, and no one is advising the President of what the best view of the law is). Of course, some of their legal advice -- the August 2002 Torture Memo, in particular -- has been far, far outside even the most extreme bounds of what's reasonable: The chalk is but a distant memory there. And I'm not defending that. But I think it is a very hard question whether Executive branch lawyers ought to "push the envelope," within the bounds of what the legal culture views as "reasonable," in order to enhance presidential authority in matters of national security.

I'm curious to hear what others think of this difficult question. But this much, I think, should be clear: If the Executive Branch is going to adopt such extreme legal views, it must do so publicly, in a way that allows for critique and democratic accountability. If it is acting on idiosyncratic, and extreme, readings of the law, it is wrong to hide that fact from the public -- to pretend as if it's business as usual. Justice Jackson's view of the legality of the destroyers deal might have been wrong, but he and the President announced the sale to the Congress and had the courage to provide the legal analysis supporting it -- thus giving Congress and the public the opportunity to apply checks and balances.

The practice in this Administration has been the polar opposite.

It is not acceptable to announce repeatedly to the world that we don't torture, that we abide by all our treaty obligations, and that we treat detainees "humanely" -- only to engage in secret waterboarding and hypothermia, based on equally secret legal determinations that construe the words "torture" and "humane" in an Orwellian fashion, that diminish treaty obligations down to nothing, and that assert a right of the President to ignore all statutory limits.

It's not ok to give the world the impression that we are staying true to our 50-year-old tradition of compliance with the minimum protections of Common Article 3 of the Geneva Conventions, whilst secretly trampling all over those protections.

It's not proper to give the public and the Congress and the FISA Court the impression that the Administration is in perfect compliance with FISA, all the while secretly approving a massive surveillance program that flatly violates FISA -- and that is based on a secret conclusion that Congress unknowingly approved such a program when it authorized the use of force against Al Qaeda.

We can argue about the virtues, the propriety, of unorthodox readings of the law by the Executive -- of going right up to the line and getting chalk all over one's spikes. But even if unorthodox, and pro-Executive, and aggressive, readings of the law are in some cases permissible, what should be beyond the pale is acting in accord with a body of secret law.


Prof. Lederman said:

Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

nonliquet said:

X, executive branch official tells Y, executive branch lawyer to create a policy that may violate the law. Both X and Y are insulated. The policy works its way down the executive branch and then Z, an ordinary soldier commits a crime in part because of these policy changes and gets prosecuted, convicted and sent to jail by the very same Executive Branch asking for the boundaries to be pushed.

These comments raise for me a critical question: to what extent does "advice of counsel" provide a defense to members of the Executive Branch who act on that advice?

It seems to me that if it is a defense, that raises serious policy implications about the staffing of and advice given by OLC. It makes no sense to allow the Executive to immunize itself in this fashion.

If OLC advice does not create any legal defense, then the behavior of OLC at least remains subject to political control by the public/Congress and judicial oversight. In this case, Prof. Lederman's and Katherine's point about public disclosure of the advice becomes crucial.

On the more general issue whether lawyers should "confess" to being creative, I can only answer from my own practice. Only once or twice have I told a court that I wanted it to make new law. The response was discouraging -- the court had no interest in doing that. The legal fiction that "the law was ever thus" seems ingrained in judges and constrains the attorneys. It's more practical to assert a general principle which is broad enough to cover the case and then argue that said principle always was the law.

This is a great discussion.

Why is advice of counsel ever a defense for anyone?

I'm simplifying, but in general advice of counsel can be a defense to certain mental states. For example, under CA law (where I practice) advice of counsel can be used as a defense against a claim of bad faith.

This does not mean that the judge or jury must accept the defense, it just means that it can be offered. However, if someone does seek legal advice, and the advice IS given in good faith, then it would surely be wrong to find the client acted in bad faith.

Note that in this situation there's a control on the attorney and client -- the judge or jury must accept that the attorney gave advice which may have been wrong but was nonetheless within the "ballpark".

I'm not sure what the law is with respect to advice by OLC. Prof. Lederman seems to be suggesting a greater impact for advice of counsel than I understand, but I could be wrong. However, at he says (in an excellent post):

"But in my view (for reasons I don't have time or space here to elaborate), due process would almost certainly prevent prosecution for any conduct undertaken in reliance upon reasonable OLC advice; and before last Thursday, the conclusion that CA3 did not apply to the conflict with Al Qaeda, although perhaps wrong, was certainly reasonable (indeed, it was accepted by the now-Chief Justice of the United States). I know others will disagree with me on this. But I think it's safe to say, at the very least, that neither this Administration nor any future Administration will prosecute U.S. officials under the War Crimes Act for violations CA3 against Al Qaeda that occurred prior to June 29, 2006."

Hence my question above.

Basically lawyers feel free to skate on the ragged edge because they see no consequences. So the question is should people such as Yoo be disbarred, tried for the consequences of their opinions and imprisioned or perhaps more.

Jack's column a few weeks ago attained the same view, though the title on his post made it look like it discussed only fourth amendment concerns; rather, it seemed like the article itself described fairly well the slippery slope now nearly four years in building.

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