Legal advice to a President is always sympathetic to his policy goals. Advisers feel political and personal loyalty to the President who selected them. Competition for influence within the administration fosters telling a President what he wants to hear. Also, the culture of the Executive Branch ensures sympathy. Given these powerful incentives to support the President's policy agenda, what can and should constrain the lawyers? First, there is the obligation of the oath to defend the Constitution that they all take. The lawyers also have a second obligation in their professional responsibility to "exercise independent professional judgment and render candid advice." As Robert Jackson said, "the value of legal counsel is in the detachment of the advisor from the advised." We expect that distance from professionals of all kinds, our doctors for example.
To buttress the duty of independent judgment, executive advisers need to accept the principle of the Steel Seizure case that Congress can lay down the law, even in time of war. Support of a broad initiative power for the executive is fully consistent with this principle. Some of President Bush's lawyers followed a theory that the executive has broad unilateral power in the foreign realm that Congress may not control, except perhaps by withholding funds or impeachment. This risks a destabilizing pursuit of executive hegemony, one very erosive of the rule of law.
President Bush absorbed an extreme view of executive power espoused by Vice President Dick Cheney, who operated through his fierce aide, David Addington. He was also helped by John Yoo, second in command in the Office of Legal Counsel. In Yoo's earlier academic career, he had developed theories of nearly unconfined executive power that fit nicely with Cheney's. White House Counsel Alberto Gonzales, who lacked experience in government, was ready to defer to the more experienced lawyers around him. The events of 9/11 soon created a perfect storm in which inclinations toward executive dominance met opportunity in the form of the worst surprise assault on America since Pearl Harbor.
President Bush immediately decided to declare a war on terror rather than to use ordinary criminal processes. This would be, though, a new kind of war because the enemy wore no uniforms, acted clandestinely, and routinely attacked civilians. It was obvious to everyone that gathering intelligence about the identity and intentions of this new enemy was absolutely crucial to preventing future 9/11's. The focus on intelligence gathering shaped all terror policy.
The advice that was given to President Bush regarding terror issues reveals that somewhere a blurring of the line between analytic advice and unrestrained advocacy occurred. The administration's lawyers repeatedly followed a four-part strategy:
- Step One: set the analytic framework. The memos always emphasize the foreign and wartime context of the situation, to invoke broad precedents there. The memos downplay any domestic effects of proposed actions, to avoid more limiting precedents there.
- Step Two: interpret the President's constitutional powers very broadly, without identifying any limits to them, while interpreting possible constitutional restrictions very narrowly.
- Step Three: take the same approach with statutes, interpreting authorizations of executive action very broadly, and limitations very narrowly.
- Step Four: invoke the canon of construction that statutes should be read to avoid constitutional difficulties. If you have broadly interpreted the executive's constitutional powers, a broad shadow falls across the meaning of statutes. Combine these elements of strategy and you can, in the words of Alberto Gonzales, "push the envelope" of legal constraint.
This strategy first led to approval of the National Security Agency's "Terrorist Surveillance Program," notwithstanding the program's inconsistency with the Foreign Intelligence Surveillance Act (FISA). It then produced policies of detaining suspected terrorists without process and subjecting them to trial by military commission, which were twice struck down by the Supreme Court. And it led to an endorsement of extremely harsh interrogation techniques in the "torture memos." The advice concerning interrogation made its way to Abu Ghraib and contributed to the scandal there.
If the President's lawyers should have given more independent advice than they did, how can we have any assurance that they actually will do so? Self-interest, both personal and institutional, should have that effect. American history confirms that if the President's lawyers fulfill their professional obligation to provide independent judgments about the law within a framework of an approach that emphasizes the shared powers of the three branches, they will act in the best interests of their President, their nation and their own selves.