Maryland Law Review Volume 68 | Issue 1 Article 3 True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers Peter Margulies Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Legal Profession Commons Recommended Citation Peter Margulies, True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers, 68 Md. L. Rev. 1 (2008) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol68/iss1/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. \\server05\productn\M\MLR\68-1\MLR101.txt unknown Seq: 1 25-NOV-08 13:14 MARYLAND LAW REVIEW VOLUME 68 2008 NUMBER 1 Copyright Maryland Law Review 2008 Articles TRUE BELIEVERS AT LAW: NATIONAL SECURITY AGENDAS, THE REGULATION OF LAWYERS, AND THE SEPARATION OF POWERS PETER MARGULIES* ABSTRACT Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as “lawfare” against American interests. The lawfare critics failed to recognize that legal constraints can empower decisionmakers by reinforcing reputational and other long-term val- ues. They also failed their history test, ignoring the lessons of presi- dents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, includ- ing the torture memos drafted by the Justice Department’s Office of Legal Counsel (“OLC”) and the destruction of CIA interrogation tapes. Unfortunately, this elevation of ideology over context has failed to yield adequate remedies. Tort litigation, exemplified by Jose Pa- dilla’s recent lawsuit against former OLC attorney John Yoo, risks Copyright 2008 by Peter Margulies. * Professor of Law, Roger Williams University School of Law B.A. Colgate, 1978, J.D. Columbia Law School, 1981; send comments to [email protected]. I thank our superb reference librarian, Emilie Benoit, for her expert assistance, and Kathleen Clark, Lawton Cummings, Hal Gerber, Bob Gordon, David Pozen, Dan Richman, Ellen Saideman, Mark Shulman, Bill Simon, and participants at a workshop at St. John’s University School of Law and a roundtable sponsored jointly by the American Association of Law Schools Profes- sional Responsibility section and Fordham Law School for comments on previous drafts. 1 \\server05\productn\M\MLR\68-1\MLR101.txt unknown Seq: 2 25-NOV-08 13:14 2MARYLAND LAW REVIEW [VOL. 68:1 personalizing the problem and neglecting systemic issues. The infor- mal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distin- guishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more plia- ble players such as White House counsel. To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailor- ing. Dialogic equipoise allows the President to take action that is consistent with the most accurate reading of sources of authority. Ac- tion, however, must be both interstitial—with a clear exit strategy— and publicly disclosed. To implement the dialogic equipoise model, this Article recommends an integrated approach, including a safe harbor for publicly disclosed legal opinions, consideration of institu- tional consequences, assertion of the least drastic rationale for execu- tive power, and an ex ante role for Inspectors General and the OLC in document preservation. This blended regime can counter ideol- ogy’s corrosive influence on legal deliberation about war, peace, and national security. Some clients love drama. Take the client who informs you that the fates of thousands of people hinge on your advice.1 For the con- scientious lawyer, a dilemma arises. In the ever-shifting context of na- tional security decisions, inflexible adherence to the letter of the law can spell disaster.2 Invidious or ill-advised responses to exigency, how- ever, can undermine the integrity of legal institutions. A lawyer with an ideological agenda to promote may not see the complexity of the situation. Indeed, the ideologically driven lawyer may have helped construct the client’s stark vision. Unfortunately, failing to see the dilemma does not make it go away. 1. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 71 (2007) (noting the displeasure of Vice President Cheney’s Counsel, David Addington, who often spoke for the Vice President, at then Office of Legal Counsel attorney Jack Goldsmith’s refusal to sign off on “an important counterterrorism initiative;” Addington told Goldsmith that “the blood of the hundred thousand people who die in the next attack will be on your hands”). 2. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring) (recommending pragmatism and cautioning against “rigidity dictated by a doctrinaire textualism” in analyzing scope of executive power); cf. David J. Barron & Mar- tin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941, 948–49 (2008) (arguing that presidents have varied in their interpreta- tion of their own authority and have often elected to work with Congress, rather than rely on stark claims of executive power). \\server05\productn\M\MLR\68-1\MLR101.txt unknown Seq: 3 25-NOV-08 13:14 2008] TRUE BELIEVERS AT LAW 3 Commentators have long argued that the lawyer is best served by a balance or equipoise between solidarity with a client and commit- ment to the abiding values of the legal system. This equipoise allows lawyers to fulfill the role identified by students of the social scene from Tocqueville3 to the present as mediators between private and public interests.4 When lawyers become issue entrepreneurs, pushing a perspective on an issue that ignores or discounts opposing views, they threaten this ideal of equipoise. For government lawyers in na- tional security matters, the stance of the issue entrepreneur is particu- larly perilous.5 National security lawyers opine about inherently dangerous or intrusive measures, including coerced interrogation, surveillance, weapons sales, and military strikes. The temptations for any lawyer to go along with the perceived wishes of a senior official are substantial. When a lawyer is an issue entrepreneur predisposed to approve violent or intrusive means, the lawyer’s ability to say “No” to the client is even more gravely compromised.6 Moreover, the lawyer’s issue entrepreneurship can create a tipping point that privileges short- term interests and legitimizes unduly risky behavior by the executive. These perils have emerged in a number of recent developments, in- 3. See ALEXIS DE TOCQUEVILLE, On That Which Tempers the Tyranny of the Majority in the United States, in DEMOCRACY IN AMERICA 301, 306 (Arthur Goldhammer trans., Library of Am. 2004) (stating that the “legal profession is the only aristocratic element that can mix readily with the natural elements of democracy” and that a republic could not survive today “unless the influence of lawyers on its affairs increases as the power of the people grows”). 4. See Peter Margulies, Lawyers’ Independence and Collective Illegality in Government and Corporate Misconduct, Terrorism, and Organized Crime, 58 RUTGERS L. REV. 939, 982 (2006) [hereinafter Margulies, Lawyers’ Independence] (explaining that the concept of equipoise requires lawyers to balance work in a manner that both serves the interests of private cli- ents and safeguards the public’s interest and democratic values). 5. On the ethics of executive branch lawyers, see generally Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559 (2007); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L REV. 375, 407–19 (1993); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective From the Office of Legal Counsel, 52 ADMIN. L. REV. 1303 (2000); Neil M. Peretz, The Limits of Outsourcing: Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT’L L.J. 23 (2006); Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676 (2005); Jesselyn Radack, Tortured Legal Ethics: The Role of the Govern- ment Advisor in the War on Terrorism, 77 U. COLO. L. REV. 1 (2006); A. John Radsan, Sed Quis Custodiet Ipsos Custodes: The CIA’s Office of General Counsel?, 2 J. NAT’L SEC. L. & POL’Y 201 (2008); cf. Nelson Lund, The President as Client and the Ethics of the President’s Lawyers, 61 L. & CONTEMP. PROBS. 65, 65–67 (1998) (arguing that government lawyers lack authority to sec- ond-guess their clients’ choices on grounds of morality or policy); Geoffrey P. Miller, Gov- ernment Lawyers’ Ethics in a System of Checks and Balances, 54 U. CHI. L. REV. 1293, 1295–97 (1987) (same). 6. Issue entrepreneurs can also be unduly predisposed toward caution. See infra notes 72–73 and accompanying text (discussing appropriate balance between caution and taking R risks). \\server05\productn\M\MLR\68-1\MLR101.txt unknown Seq: 4 25-NOV-08 13:14 4MARYLAND LAW REVIEW [VOL. 68:1 cluding the torture memos drafted by the Justice Department’s Office of Legal Counsel (“OLC”)7 and the Central Intelligence Agency (“CIA”) tape destruction affair. Issue entrepreneurship in post-September 11 legal advice arose because academic lawyers pushed the overarching idea that America was unfairly and dangerously bound by law.