Executive Branch Ethics: Lawyering for the President in the Age of Terrorism

David A. Simon*

Executive branch lawyers have a heightened responsibility to ensure that analyses of the legal parameters of presidential authority do not eclipse the ethical imperatives underlying governmental legitimacy.

Since the nihilistic events of September 11, enthusiastic deference to executive power among Office of Legal Counsel (OLC) attorneys has seen its highest tide in a generation. Important legal efforts to prevent future attacks on the American homeland have included the reorganization of dozens of federal institutions to create two new cabinet-level positions (Secretary of the Department of Homeland Security and Director of National Intelligence), a broad grant of war powers to the President,1 and an allowance of great latitude in setting new guidelines for detention and interrogation techniques.2 During emergencies, executive branch lawyers have a heightened responsibility to ensure that analyses of the legal parameters of presidential authority do not eclipse the ethical imperatives underlying governmental legitimacy.

As government lawyers in positions of great sensitivity, OLC attorneys have moral obligations to serve the best interests of the people for whose benefit the government exists. In times of crisis, this duty may supersede the general professional responsibilities owed to the President as client. Unpacking the implications of this special ethical obligation demands a consideration of the myriad roles OLC attorneys play, the importance of dialogue in executive legal decision-making, and the foundations of executive branch legitimacy.

I. Role Ethics

In the U.S. government, as in most bureaucracies, where you sit determines where you stand; that is, your position in an institution shapes your philosophical and policy views. Executive branch lawyers are encumbered by complexly overlapping roles. As human beings, they are not unlike the individuals who may be impacted by executive legal opinions. As legal (and perhaps policy) experts, they may engage in advocacy that could preclude raising compelling counterarguments against a certain action. The 2002 Memorandum Regarding Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (widely and herein referred to as the “Torture Memo”) is a striking example of this practice. OLC attorneys wrote an opinion granting the President plenary powers without reference to Justice Jackson’s oft-cited concurrence inYoungstown Sheet & Tube Co. v. Sawyer,3 which held that the President’s Commander in Chief powers are not so broad as to allow him law-making authority.4 OLC attorneys have an undeniable responsibility to serve the interests of their client; whether an OLC attorney’s client is the President or the American people is a matter of debate. If it is the former, an overzealous commitment to the concept of client autonomy may lead an attorney to push the envelope beyond the bounds of reasonable legal analysis.5 As government officials, OLC attorneys not only have a duty to serve the Attorney General and the President, but also an indirect obligation to serve the best interests of the American people.

It is critical that attorneys avoid tailoring their ethical frameworks to their particular offices. Efforts by the White House Counsel’s office to shield U.S. officials from criminal prosecution for war crimes exemplify how competition for bureaucratic supremacy and legal immunity can undermine the rule of law and foster a moral insularity among executive branch attorneys.6 In times of crisis, it is especially important that the President receive “competent, objective, and honest advice” regarding the direct and indirect legal implications of proposed decisions, because without such advice, he cannot properly formulate national and international policy.7

II. Dialogue in the Legal Process

OLC attorneys have a moral obligation to foster an institutional culture that encourages dissent, rather than one that relies on ethical blind spots. Otherwise, offices become echo chambers, and the lawyers within them fall victim to groupthink akin to the siege mentality of many attorneys in the Nixon White House. For example, in drafting the Torture Memo, the authors excluded relevant military and State Department lawyers “associated with Secretary of State Colin Powell’s more multilateral, internationalist approach”8 from the conversation about military tactics. Furthermore, the drafts were not reviewed by lawyers in the Criminal Division of the Justice Department, who “would have immediately recognized the erroneous analysis of the application of the Geneva Conventions.” Nor was the Torture Memo shown to State Department officials responsible for implementing the Convention Against Torture and the regulations involving the statutory definition of torture.9 That the authors of the Torture Memo employed such a narrow legal definition of torture is evidence that a legal process that excludes opposing assumptions can produce inhumane results.10

Law is not interpreted in a vacuum. Rather, it is embedded in terrains of meaning, interpretation, and understanding. Engaging, through legal analysis, with the historical, textual, and philosophical structures within which legal concepts are embedded is another form of dialogue that lends legitimacy to opinions and strengthens public confidence in the impartial administration of justice under the rule of law. Conversely, cherry-picking legal doctrines and definitions to fit a forward-leaning social policy without regard to context raises legitimacy concerns, even if it passes some sort of outcome-determinative test (e.g., securing intelligence from a suspected terrorist in ticking-time bomb scenario). Pioneering legal analysis should be guided by a moral compass and entail a contemplation of relevant historical contingencies, political hierarchies, and corresponding ethical consequences.

III. Foundations of Executive Legitimacy

Identifying sources of executive branch legitimacy is useful because these sources may serve as guiding principles for OLC attorneys about how to conform their actions to a greater moral consciousness. First, the principles of representative democracy – of government power held accountable to citizens through institutions – are fundamental. That the Assistant Attorney General for OLC is appointed and confirmed by officials elected by the American people is one compelling reason why government lawyers should follow a “public interest” model, which “places greater weight on fairness and justice, and requires lawyers to weigh in on the wisdom and morality of what their clients are considering.”11 Political appointees may serve at the pleasure of the President, but that does not entitle them to ignore the ethical intuitions of their fellow citizens.

In exercising the independent constitutional interpretive authority of the Executive, OLC attorneys write opinions approving actions that profoundly affect the lives of millions in the United States and abroad. Whether impacting insurgents in Qalat, Afghanistan or the NATO-led American troops who counter them, OLC opinions govern matters of life and death for individuals, regardless of gender, nationality, or geographic location. When formulating opinions, OLC attorneys should not consider the legal questions before them without considering the impact they will have.

Moreover, respect for the rule of law is itself a source of legitimacy. This claim may at first seem circular, but whether an existing law is enforced speaks to the integrity of a justice system as a whole. Some scholars contend that the authors of the Torture Memo lost sight of the rule of law while ignoring the ways in which torture erodes legal institutions.12 Enforcing a law that allows the intentional infliction of pain short of organ failure sends a message to the world about America’s respect for human dignity. It also creates a moral and legal floor in the U.S. legal system for the treatment of individuals.

Finally, it is instructive to recognize that legal justification is not itself a source of legitimacy; that is, Executive branch decisions are not legitimate simply because they are grounded in sound legal reasoning. Granted, the infamous Torture Memo is morally problematic in part because they were legally problematic.13 However, the memos are also morally flawed because of the policies they authorize: the use of “cruel, inhuman, and degrading” interrogation techniques,14 such as “waterboarding”15 and the “cold cell,”16 to secure intelligence from enemy combatants. A morally repugnant policy is no less wrongheaded when couched in expert legal analysis.

IV. Conclusion

The moral duty of OLC attorneys to serve the best interests of the American people is central to the maintenance of democracy. When faced with conflicting responsibilities and overlapping loyalties, Executive branch lawyers must safeguard against complacently wielding the tremendous influence of the government. They should embrace a process that welcomes dissenting views and uphold their professional role as public servants and their fundamental role as human beings.

* M.Phil., Oxford University, 2005; J.D. Candidate, Harvard Law School, Class of 2008. Thank you to Professor Jack Landman Goldsmith for introducing me to the ethics of executive branch lawyering. Thanks also Louis Ballezzi and Chiraag Bains for their insightful comments. And thanks also to my family and my friends, especially Keira Driansky, for their suggestions and encouragement.
[1] See Authorization for the Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224 (2001).
[2] See Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, White House Counsel, and William J. Haynes II, General Counsel, Dep’t of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf; Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, White House Counsel, Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002), available at http://news.findlaw.com/wp/docs/torture/bybee20702mem.html; Memorandum from Jay S. Bybee, Assistant Attorney General, to William J. Haynes II, General Counsel, Dep’t of Defense, Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan (Feb. 26, 2002), available athttp://www.washingtonpost.com/wp-srv/nation/documents/022602bybee.pdf; Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, White House Counsel, Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A (Aug. 1, 2002), available athttp://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf.
[3] 343 U.S. 579, 643-47 (1952) (Jackson, J., concurring) (finding that President Truman overstepped his constitutional authority in seizing steel mills during the Korean War).
[4] At the very least, OLC attorneys should have discussed why, if at all, Youngstown is inapplicable. Moreover, OLC attorneys should have engaged in more dialogue with the other relevant legal offices in the Departments of State and Defense.
[5] See Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. LEGAL ETHICS 225 (2006).
[6] Richard Bilder & Detlev Vagts, Speaking Law to Power, 98 AM. J. INT’L L. 689, 694 (2004).
[7] Id. at 693.
[8] W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67, 91 (2005).
[9] Id. at 70. See also Posting of Marty Lederman to Balkanization Blog, Understanding the OLC Torture Memos (Part I),
http://balkin.blogspot.com/2005/01/understanding-olc-torture-memos-part-i.html (Jan. 7, 2005, 9:15 EST).
[10] See Vischer, supra note 6.
[11] Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on Terrorism, 77 COLO. L. REV. 1 (2006).
[12] See, e.g., Kathleen Clark, Ethical Issues raised by the OLC Torture Memorandum, 1 J. NAT’L SEC. L. & POL’Y 455, 469-72 (2005); George C. Harris, The Rule of Law and the War on Terror: The Professional Responsibilities of Executive Branch Lawyers in the Wake of 9/11, 1 J. NAT’L SEC. L. & POL’Y 409, 450-53 (2005)
[13] See Wendel, supra note 10.
[14] Torture Memo.
[15] This method involves binding a prisoner to an inclined board, feet raised and head slightly below the feet, wrapping his face in cellophane, and pouring water over him. Inevitably, the prisoner’s gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to halt the treatment. See Brian Ross & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, Nov. 18, 2005, http://abcnews.go.com/WNT/Investigation/story?id=1322866&page=1.
[16] This technique involves leaving a prisoner to stand naked in a cell kept near 50 degrees Fahrenheit and dousing him with cold water. Id.

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