Will Taft on the over-lawyered Bush administration

Will Taft has an essay in the Yale Journal of International Law, here, criticizing the extent to which the Bush administration's foreign policy - and many of the most divisive parts therein - have been driven by lawyers. (Thanks, Peter Spiro at Opinio Juris, for this post on it.) Peter quotes a couple of key grafs that are worth repeating:

It was the lawyers from the Department of Justice who pressed for a determination that the Conventions and other standards of international law and practice did not govern the conflict. Bearing an abstract hostility to international law, developed in the sheltered environment of academic journals, and equally unfamiliar and unconcerned with our broader policy interests in promoting respect for the rule of law among states as well as within them, these lawyers proposed to create a regime in which detainees were deprived of all legal rights and the conditions of their treatment were a matter of unreviewable executive discretion. Why lawyers, of all people, should want to establish the point that such a lawless regime could legally exist, even as a theoretical matter, much less recommend that one actually be created, is, I confess, beyond me, and in itself it a sad commentary on the extent to which sophistry has penetrated what used to be widely regarded as an honorable and learned profession. . .

The nation’s foreign policy on which our liberty and prosperity depend, then, instead of being the product of a careful review of our national security requirements, our relations with other states, and our long-term interests, became simply the occasion for lawyers with but slightexperience in and no responsibility for these matters to obtain official endorsement of an exotic legal proposition. Even if the proposition had been correct, which the Supreme Court determined it was not, this abstract exercise would have been a mistake. Of course, it’s important to know what the law is, but it’s even more important to know what it is in your interest to do. When you know that, it is time to ask the lawyers whether it is lawful, and if it is, you go ahead with it. This is the way foreign and national security policy have generally been made and carried out in the past, and international law has developed consistent with state practice determined by policymaking officials.

Peter adds, correctly I'm certain, it's no question who Taft has located in his cross hairs - John Yoo. I have to say, though, that I think John gets unfairly caricatured in many of these discussions. In particular, his book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9-11 (University of Chicago 2005), on executive power is much more powerful than his legion critics give credit for - all you have to do to derail any of its arguments is say, "torture," and discussion is over. But I'm afraid the arguments are more powerful than that, even if you are not ultimately persuaded.

Still, I'm pleased to see this insider piece by Mr. Taft, in no small part because it gives me insider confirmation in print on something I've been writing myself, somewhat on the strength of conversations with people in the administration past and present. Here are a couple of grafs from something that will come out in Policy Review, in revised form, in another few weeks:

Yet it would be a mistake to characterize the crusade for greater executive power as merely an ideological obsession of an interior claque of administration lawyers, revolving around the relentless and, by nearly every account, genuinely obsessive David Addington. In the academic quiet of my study, I sit with John Yoo’s recent book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9-11, defending executive power; the arguments are considerably more compelling than the critics are wont to grant. At some points, despite my final conclusion that the national emergency state cannot last forever or even for a long time and that democracy requires the action of the legislature, I find his arguments for inherent presidential power very persuasive even if not finally conclusive. The force of argument with respect to the conduct of war is overwhelmingly so – the issue is not the executive’s power in that case, but instead how widely “war” can be defined so as to invoke that power. This issue was new to the post-war United States following 9-11. It was not so in many other countries, even developed, sophisticated democracies, such as Germany or Italy experiencing serious terrorism in the 1970s, which responded with draconian state powers, sometimes continuing to this day, compared to which the Patriot Act is a minor, minor inconvenience. My own experience of the national security states of Latin America in the 1970s and 80s – Chile with its permanently renewed, over decades, “state of emergency” under Pinochet, for example, or Guatemala in the early 1980s – convinces me, at least, that emergency presidential power conjoined with highly ideological, abstract notions of “war,” such as the war of anti-communism, must eventually erode democratic institutions. The United States is not exempt from that risk – American exceptionalism is real, but not that real – and ultimately the accommodations that national safety requires of civil liberties must be placed on a democratically assented-to footing as a bulwark against what our forebears would have called ‘despotism’.

Yet the drive for greater executive power is not only a function of certain right-wing lawyers in the administration and out. Significantly (and significantly overlooked), it is also driven by an equally obsessive, excessive legalism among liberals and the left, who often choose to call the president’s actions “illegal” rather than settling for calling them “wrong.” A stroll across the academic parts of the liberal-left blogosphere reveals just how widespread this tendency is even among otherwise sober-minded professors; fantastical plans for impeachment hearings, seemingly (to the outsider, anyway) far-fetched theories of criminal liability of administration insiders, dreams of payback that center on allegations of illegality. Many of the administration’s critics having lost the distinction between bad policy and illegal action, the natural result on the other side, within the administration itself, is excessive concern with protestations and formalities of lawfulness. The administration’s many, many lawyers circle the wagons, zealously protecting the administration’s legal positions far beyond the point of relevance to practical policy-making – indeed, to the detriment of sound policy-making. They believe that as advocates for their clients, the president and his administration, they have no choice, particularly given how high outside critics seek to raise the stakes – criminal penalties, civil trials, and the prospect of criminal indictment, civil suits, and personal bankruptcy defending oneself. The collapse of the Fitzgerald investigation but the unconscionable persistence of the Libby indictment are an object lesson to the administration’s lawyers that the threat is real. Both sides in this running escalation of threat and response needed, long ago, to take a deep breath and a step back – and no one did.

The administration’s lawyers should never, for example, have been issuing legal opinions ruminating on just how serious bodily damage would have to be in order the violate the torture convention, merely in order to assert the hypothetical outermost edges of presidential authority, as though in a law school classroom and not the halls of actual power, policy, and responsibility. We need instead actual policies on actual techniques of interrogation and what crosses the line into actual torture – not lawyers debating torture hypotheticals as a way of pressing a quite separate argument about executive power. While this debate over abstract hypotheticals goes on, meanwhile, CIA field officers, pressed in the period following 9-11 to come up with actionable intelligence, move interrogation techniques forward, while nervously wondering if they will be criminally indicted and, as recently reported in the press, therefore consult their own lawyers, sometimes refuse to participate in interrogations or even meetings discussing interrogations, and sign up for legal liability insurance. This lack of certainty as to legal standards is entirely unacceptable, and the maneuverings of administration lawyers to protect the outer boundaries of executive power while leaving essential national security policy dangling extraordinarily bad judgment. Yet, on the other hand, the administration’s legion critics should never have been – and should not continue to be – baiting them to do so by relentlessly dangling the threat of individual criminal liability over the heads of officials at the first breathless opportunity and as an alternative to winning the 2004 election and the opportunity to establish policy themselves.

The Bush administration thus turns out, peculiarly, to be the most over-lawyered ever seen. And yet the charge is often leveled against this administration by its critics of lawlessness. The substance of this, of course, may be debated (and I myself think not), but whether one agrees or disagrees, there can be no doubt that the administration’s quite natural response to charges of lawlessness has been otherwise excessive lawyering - lawyering that makes no sense from the standpoint of the formation of practical policy. Yet, given the extreme legal claims of its critics of impending impeachment charges, criminal liability, and civil claims, lawyerly memos, opinions, and legal documentation are unfortunately not at all imprudent. The drastic raising of the legal stakes for both institutions and individual officials in the formation of policy has been near-lethal to the ability to reasonably and practicably formulate policy – as a future Democratic administration will one day discover, to its dismay. And, as a corollary, indubitably the least helpful exercises in seeking a comprehensive counterterrorism policy are those that view any relaxation of the administration’s existing legal positions as the “gotcha” moment – necessarily a tacit admission, to be used in court if at all possible, of past illegality and possible criminality.