Jeremy Waldron, in his book Torture, Terror and Trade-offs: Philosophy for the White House (2010), offers another argument against the President's right to ask his or her lawyers for a precise answer to the question of what conduct the torture statute actually forbids. Actually, he does not argue against the President's seeking precision; rather he argues against the President's treating the torture statute as a problem to be maneuvered around. Asking what the statute forbids isn't necessarily part of trying to circumvent it, and I don't take Waldron to be arguing that Presidents are barred from seeking precision if that is all they are seeking.
What Waldron is arguing is that Presidents have no right to treat law as something to undercut and evade. In this, Presidents are quite unlike ordinary citizens. Because the rule of law exists to protect individual freedom, Waldron argues (at 322), "there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inapproriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear."
Why are Presidents (and governments) different, on Waldron's account? Because government does not have a right to individual freedom; in fact, absence of law binding government creates peril for individual freedom. Government exists in large part to protect its citizens' freedom, and that freedom would not exist unless it included freedom from lawless government action, otherwise known as abuse of power. (322-23) "Government lawyers," therefore, "should not be in the business of looking for pockets of unregulated discretion or loopholes in such regulations as do exist. They should not be advising their political bosses that they are entitled to avoid the impact of legal constraint where it is ambiguous or unclear." (323-24) And he applies this approach even to the realm of international law, arguing that "[g]overnments are bound in this arena, as in any arena, to show themselves devoted to the principle of legality in all their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly." (329)
Waldron implies, however, that there may be exceptions to these conclusions. He writes (323 n.6) that "[t]he Rule of Law is just one of the normative ideals that apply to government action. Others, such as efficiency or even security may sometimes pull in a different direction." If security did present a more pressing claim than the rule of law in a particular situation, presumably the duties of a lawyer asked about the law could similarly shift -- unless it is the job of lawyers always to stand for the law, even if other actors (generals, perhaps) may legitimately choose to disregard the law's demands. Whether Waldron would allow lawyers some freedom of action on these grounds isn't entirely clear; he emphasizes that while lawyers do serve multiple goals, "we pursue justice and the social good through the Rule of Law, not around it or in spite of it." (320)
So: is it inconsistent with the rule of law for a government lawyer to try
to limit the legal constraints on the government by employing the tools
of legal argument and interpretation to construe those constraints to be
as modest as possible? That's the loophole-finding, advantage-taking
role Waldron finds quite appropriate for the lawyer representing an
individual citizen, and quite inappropriate for the lawyer representing
the government. If that role is indeed inappropriate for a government lawyer, then presumably those lawyers can offer the President only such legal arguments and interpretations as support the full implementation of the law as it's written, as well as the full realization of its underlying policy goals.
There is a lot to be said for the proposition that just laws and democratic choices deserve the full support of the government and its lawyers. But not all laws are just, nor are all democratic choices, and not all laws result from untainted democratic processes. What, then, are the obligations of the government lawyer who encounters an unjust or undemocratic law?
To be sure, one person's injustice is another's categorical imperative. Who is to say what is unjust and what isn't? As a general proposition, in legal representation it is the client rather than the lawyer who says what is desirable -- as long as the bounds of the law are not breached. With a lawyer for the President, this general rule seems especially apt, because the President, not the lawyer, was elected to represent the views and needs of the people.
So let us imagine that government lawyers are asked to construe an unjust law, that is, a law viewed by the President as unjust. Just to make this hypothetical a bit more real, let's suppose it's a statute that forbids any "transactions" between government agencies and undocumented aliens. Let's suppose also that the statute could most easily be read to bar, as "transactions," even the provision of emergency medical services to an undocumented alien, but that this reading is not absolutely compelled by the available interpretive materials (such as the text or the statements of the enacting legislators). And suppose that the President (or the Governor of Alabama, since this law is not entirely unlike that state's harsh new law regulating undocumented aliens) believes the law is unjust. So the President asks, in effect, "How can we minimize the application of this law by the use of the tools of legal argument and interpretation?"
It seems to me that in this case narrow interpretation serves justice. As I've mentioned, Waldron distinguishes between the pursuit of justice and the rule of law, on the ground that lawyers "pursue justice and the social good through the Rule of Law, not around it or in spite of it." I am not as comfortable as he seems to be with the idea that the rule of law in and of itself is not partly a matter of justice. Could a society with clear and consistently applied, but deeply unjust, laws be said to enjoy the rule of law? There probably has never been such a place -- deep injustice is likely always accompanied by arbitrariness -- but in principle I'd say that that hypothetical nation (a nation that apartheid South Africa, for instance, aspired to be) was not a country governed by the Rule of Law. What anti-apartheid lawyers used to say was that such a country had rule by law instead.
But whether the pursuit of justice is integral to honoring the rule of law, or whether it is a separate value that lawyers also serve, in the end is not critically important. Either way, in the case I've described, the path to justice (or at least a path to justice) is to seek a reading of the statute that minimizes its reach, by employing the available sources of interpretive guidance to generate a narrow interpretation of its terms -- even though that interpretation isn't the one those materials most easily support. That means that in situations where governments are constrained by unjust laws, they may indeed rightly react by turning to manipulative lawyering as a response. Waldron's concerns about government's duty to the system of law itself may weigh against this course of action and sometimes, maybe even often, may weigh so heavily that this approach, even if it is a path to justice, would be the wrong path to follow. But I don't think this path could always be ruled out.
How can a government come to be "constrained" by unjust laws? Isn't the government itself the lawmaker? Yes, abstractly; but not always, concretely. Congress can pass a law over the President's veto; the President then is obliged to implement it (at least unless it is unconstitutional), but if the President believes the law is unjust, what I've argued is that it could be right for the President and the President's lawyers to use legal interpretation to minimize that injustice. Similarly, a nation may be subject to international law rules whose meaning at first blush would be unjust to that nation and its citizens; and in such situations the nation and its lawyers might be right to use legal maneuvering to avoid this reading of the law.
I want to emphasize that I do not think either the national or
international law prohibitions on torture and mistreatment of prisoners
are unjust. But suppose the President felt otherwise. A President taking
that view could legitimately say that his or her request for aggressive
lawyerly interpretation of the torture prohibitions was not a denial of
the rule of law, but an effort to seek justice within the constraints
of the law.
There is also a more prosaic reason to defend aggressive government lawyering, namely that the legal system makes meaning from argument. Suppose a statute can be read either broadly or narrowly; the underlying policies said to be embodied in the statute favor a broad reading, but the terminology used in the law seems to point to a narrower reading -- one that would constrain government freedom of action less. If government lawyers should never look for "pockets of unregulated discretion," as Waldron maintains, then it might follow that they should not argue for this narrower reading. But the legislature that enacted the law, and the citizens who read it (with the benefit of training in statutory interpretation), might believe that the narrower reading is the right one. If the interpretive arguments favaoring that view aren't pressed, and as a result are ignored by judges or other decisionmakers, then the rule of law may have been injured -- because the methods of the law's interpretation are themselves part of the body of law whose stable and predictable application the rule of law protects. I don't mean to suggest that the government's lawyers must make any and all arguments just because the arguments can be devised, and in fact there are many reasons why that shouldn't be the government's duty (the arguments may actually disserve other goals the government has; other parties may be available to press the points on their own; or other parties may not be available to refute what the government says, in which case only the points the government embraces will get serious consideration by decisionmakers). But I do want to maintain that rule of law values may favor arguing against the extension of legal controls on the government, even though other rule of law concerns may (as Waldron says) favor the extension of such controls.
All of this leads me to say that we cannot take the rule of law, by itself, as a sufficient reason to bar government lawyers from making arguments that seek to expand the government's freedom from legal restrictions. That, however, doesn't mean that limiting the reach of the torture statute was legitimate. It does suggest that the President as client could believe it was legitimate to ask for such an interpretation, and it underlines the importance of examining how lawyers should answer such a request.