Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura Donohue, Jennifer Daskal, Jennifer Daskal & Steve Vladeck, Richard Pildes, and David Golove.
Charlie Savage was not going to settle any major disagreements with his remarkable new book on national security legal policy, Powers Wars. He stood little chance of softening the hard positions that have developed between Bush and Obama partisans, Democrats and Republicans, the left and the right, and so on. And the question on which they might have dug in most unyieldingly is whether there was really any difference between the Obama and Bush national security legal strategies.
Yet the discussion generated by Power Wars may at least help clarify the different arguments about the way law does or does not constrain policy, and about the role of the lawyer, in sensitive or critical national security matters. In his review of Savage’s book in Time, Prof. Matt Waxman, like Savage, distinguishes between law and policy and clearly appreciates that a policy we don’t like is not therefore illegal, and vice versa. An administration’s positions on civil liberties issues may be legally defensible, but still draw merited criticism.
On the question of adherence to law and legal process, Waxman’s review does not support the Time headline that the Bush and Obama administrations seem “a lot alike.” He grants that the Obama administration endeavored to “nest national security policies in legitimate and reasonable constraints.” He further credits the administration with “acknowledging legal limits, formalizing internal reviews, and bolstering oversight systems.”
This is an assessment to cheer an Obama administration lawyer. Not too bad, one might say, especially if you consider the alternative. What would we say of an administration that did not acknowledge legal limits, did not formalize internal reviews, and did not bolster oversight systems? We would surely think it made a difference which of the approaches to legal policy a government adopted. So Waxman, formerly a Bush administration legal adviser, seems to have offered some ground on which bipartisan agreement about the differences between the administrations might be possible.
Prof. Eric Posner moves in a different direction, denying that there is much to be gained by considering separately a policy, on the one hand, and the legal reasoning and process by which it is developed and implemented, on the other. He writes: “Legal support, justification, rationalization — call it what you will.” Posner seems to suggest that legal support, justification, and rationalization are all the same — that having a legal basis is identical to claiming one, and that the whole enterprise of finding a legal basis boils down to an exercise in rationalization, which in one of its definitions is “to make excuses for.” This is a starkly skeptical view of the role of lawyers and the rule of law. It is hard on lawyers in one way — their work is effectively characterized as a sham — but maybe easy on them in another, inasmuch as there is not much for them to worry about.
Posner does, however, touch on a point that is always troubling when the role of lawyers, or of law, in national security is considered. In many of the most sensitive, high-profile cases, lawyers — the very best ones, many of whom serve superbly well in the government — can find a way to support the government’s preferred policy, which is what they tend to do if the policy is compelling within the national security sphere where the Executive’s judgment carries the most weight. Robert H. Jackson did that in finding legal authority for FDR’s “destroyers-for-bases” agreement with Great Britain. President Kennedy’s legal team did the same to justify (support, rationalize — call it what you will) the defensive quarantine of Cuba in the Missile Crisis. There are other examples.
It is mistaken to shrug off these efforts as “rubberstamping.” This is a loaded term, conveying a quick, more or less automatic, but ultimately hollow gesture toward the law, lacking purpose other than to bless or give approval. As synonyms, Merriam Webster offers: “copyist, echo, follower, imitator.” Whatever Robert Jackson was, he was not any of those.
But it is not unfair to ask how we know when all the legal drafting and re-drafting, and processes to go along with them, may result in ingenious legal analysis that cannot persuade anyone not already fully committed to being convinced. There are times when lawyers perform under tremendous policy pressure, in crisis, when in good faith a government has deemed a course of action to be urgently in the national interest. Perhaps the true question is: Do we put too much on the lawyers, by assuming that there is a particular office or select number of them, engaged in acceptable lawyering by the most rigorous standards, who may set the legal parameters for policy options in these situations?
The lawyers most subject to this assumption are those in the Office of Legal Counsel. Within that office, as its statement of Best Practices provides, not just any legal analysis will do. These lawyers must render a judgment consistent with the “best understanding” of the law, one that is “honest,” “accurate,” and “principled.” They may consider the preference of the policymaker, and they have a responsibility to “facilitate” policymaking when they can. But this facilitation can take place only within a “best understanding” of what the law allows.
This requirement does not vary with the seriousness or urgency of the policy. Whatever the circumstances, it does not matter that the legal position under consideration may be good, or strong, or plausible (or, as some might say, “available,” a standard that is fatally ambiguous and that someone erroneously suggested to Charlie Savage that I had embraced). None of these standards is acceptable under the OLC-centered view: Only the “best understanding” counts, and OLC determines what that understanding is — subject only to being overridden by the Attorney General or the President, both of whom would normally be expected to follow the advice of lawyers giving their “best” view of the law. As a result, controversial legal positions taken by the Executive are routinely met with the question: “Did you ask OLC?” If the answer is yes, the OLC is presumed to have adopted the “best view,” and if not, the policymakers are assumed to have been anxious not to hear it.
OLC’s outstanding lawyers strive to adhere to this high standard. On many issues that most lend themselves to “best view” treatment, they succeed. Sometimes, on others, it has appeared that the “best view” has yielded to the policy imperative; OLC lawyers have put more weight on the responsibility to facilitate. There have been notoriously controversial instances of this sort, and also a few that have garnered less notice or caused less excitement. But it is not surprising that in exigent conditions, lawyers have worked to facilitate a policy at the expense of what might be the “best” argument, should there even be agreement about which argument is “best.”
Of course, it is not only in national security situations that lawyers have worked toward results compatible with urgent policy needs. In 1933, determined to support dangerously declining prices, President Roosevelt hit upon the notion of an Executive Order that would enable the government to fix the price at which it would buy gold. The Acting Secretary of the Treasury, Dean Acheson, was convinced that the action would be unlawful. He resisted. The President insisted. The Attorney General obliged. The President called his advisers together and told them to support the decision or leave. Not too long afterward, Acheson, whose high-mindedness infuriated the President, resigned. Later Acheson reflected that his actions “still seem to me right, although tinged with stubbornness and lack of imaginative understanding of my own proper role and of the President’s perplexities and needs.”
But then pick your poison. When the lawyers are accommodating, critics like Posner feel vindicated in the view that they have acted as rubber stamps. Maybe in the extreme case, as in the Acheson-Roosevelt drama, he has a point. More often, the process has been structured to put the lawyers in a difficult position. They can be good lawyers but wind up looking very bad — that is to say, unprincipled. It may not be a regular occurrence, but in times of crisis or high policy conflict, it will most often be noticed.
A legal advisory process vulnerable to these distortions is poorly adapted to crisis conditions. On these most pressing national security policy issues, the complex balancing of relevant considerations, including legal issues, should allow for strong, reasonable or plausible legal theories to be good enough. Yet OLC and the policymakers find themselves in a bind. This state of affairs is unsatisfactory. It is unfair to the policymaker and hardly healthy for OLC, which may be facing “decline,” in Jack Goldsmith’s words, as the office providing “relatively independent, dispositive legal advice.”
How to rethink these issues is a hard question. It is best to face it, however, and this will require, in the words of Acheson when reflecting on his bitter experience in 1933, an “imaginative understanding of [the lawyer’s] proper role and of the President’s perplexities and needs.”