Sunday, October 10, 2010

Clear and unclear laws, and lawyers' role in interpreting them

How should the government's lawyers interpret the law?

The more the government's officials and actors feel bound to stay within the law, the more important this question of interpretation becomes. As I mentioned in a post yesterday, Jack Goldsmith saw the Bush Administration's most senior lawyers as appalled at the idea of the President engaging in deliberate violation of the law. Jane Mayer's account of these years, which I discussed in an earlier post, suggests that some weren't quite so anxious on this score. But Goldsmith adds an important institutional point: the sheer number of lawyers contributes to the momentum of legal compliance. He notes that "[i]n the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists." (The Terror Presidency, at 91).

So, then, how should these lawyers interpret the law? It is hard to disagree as a general matter with Goldsmith's evident view that we do not want our government caught in "a paralyzing culture of risk-averse legalism." (94) But consider, for instance, the possibility that the government's use of lethal force in a particular situation (say, in controlling crime on a New York street) might amount to murder. If there is doubt about whether particular acts might constitute murder, we might say, we want the government to stay clear of them altogether. We routinely say, similarly, that it is better to let 10 guilty people escape conviction than to wrongly convict a single innocent defendant.

It is true that even in the context of criminal justice (even the ideal version of criminal justice, let alone the gritty reality playing out every day in streets and jails and courtrooms), we do not want "a paralyzing culture of risk-averse legalism." No one could want that, as such. What we want are protections that effectively prohibit wrongful acts while effectively permitting lawful ones. But in fact the law may not provide clear and unambiguous rules, and sometimes it arguably shouldn't -- when vaguer and more contextual "standards" better implement the law's purposes. In any event, when the law isn't clear and unambiguous, lawyers can't say that it is.

This point cuts both ways. Just as there may not be clear authorization in the law for acts that soldiers or intelligence agents believe are necessary, so there may not be clear prohibition in the law for acts that defenders of human rights say are abhorrent. Even saying we should be risk-averse about murder is not such a simple matter, because what is murder in times of peace may well be lawful killing in times of war, and whether we are in times of peace or war may well be a cloudy question. Questions like these in fact plagued the Clinton Administration, as it contemplated trying to kill or capture Osama bin Laden. Goldsmith appears to criticize "the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must pose before the CIA operation could commence." (95) But these were actually hard questions, and clarity about them may have been unattainable.

Goldsmith, I think, believes that government should be prepared to take risks and to protect the individual risk-takers -- rather than, for example, encouraging CIA agents "to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations." (95) But he also surely favors clarity where clarity is achievable, and believes that some clarity can be found in the law. Moreover, he is well aware that the agency he briefly led, the Office of Legal Counsel, has a special role here: if it says that some action is legal, then it is just about inconceivable that someone who acts on the basis of that advice can be successfully prosecuted for what he or she has done. OLC has "the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws .... the power to dispense get-out-of-jail-free cards." (97)

So, then, what interpretive approach should those who can dispense get-out-of-jail-free cards follow? More on that in coming posts.

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