Saturday, November 19, 2011

Is it legitimate for a President to ask exactly what conduct the torture statute forbids?

In a piece I've been working on for some time, on how to correctly interpret the United States' "torture statute," I've argued that it is legitimate for a President to ask his or her lawyers to explain precisely what conduct the statute does and does not cover. But one might well respond that really the right approach to this statute is to avoid coming anywhere near it. Or, less sweepingly but to the same effect, one might argue, with Jeremy Waldron, that society has provided as much precision as it should when it communicates that it prohibits "the deliberate infliction of severe pain"; he urges that no one "has a legitimate reason for demanding that the prohibition be . . . 'drawn closer' than that." Jeremy Waldron, Torture, Suicide, and Determinatio, 55 American Journal of Jurisprudence 1, 24 (2010).

Does that mean that it is really not legitimate for the President to ask the lawyers for a precise reading of the statute's terms? Not necessarily. Waldron's point, as he phrases it, is that the President could not rightly demand more precise meaning. To demand more precise meaning, however, may be to insist upon a binding determination in advance: so much is legal, so much is not. There are many circumstances in which the exact application of the law to actual conduct is not certain in advance, or even after the fact; those many areas of uncertainty are much of what lawsuits are made of. But we do not tell people, usually, that in those areas of uncertainty they must just do the best they can on their own. Instead, normally, we say that they can ask their lawyer, if they're fortunate enough to have one, for an expert opinion on what the law really does mean.

Why? Because in a society governed by the rule of law, the laws must be knowable. Secret law, at least as a general matter, can't be permitted. Since the written law is always at least somewhat in need of interpretation, it must be permissible for anyone, including the President, to ask a lawyer to interpret it -- otherwise its true meaning would remain hidden. Such questions are legal, and legitimate.

Is it ever illegal to ask what the law is? Surprisingly, the answer to this question is probably yes. A client might very well want to know what the law is in order to carry out some illegal scheme -- a classic example would be the client who inquires, "What countries don't extradite people charged with murder?" The client who asks about the law as part of a criminal enterprise may well be acting illegally even in asking the question, and evidence of that question might someday be offered as part of the proof of the client's guilt. On the other hand, a client who asks what the law is, so that he or she can come as close to violating it as possible -- but not violate it -- is acting legally, even if such a client deserves to be called a "bad man [or woman]," as Oliver Wendell Holmes, Jr., famously did.

So it might be argued, to make all this concrete, that when President Bush asked his lawyers to interpret the torture statute, he did so as part of an illegal scheme to covertly violate that very statute. Therefore the question itself was illegal.

That might be argued, but it's not at all clear that the argument would be correct. It seems, in fact, that while President Bush was eager to circumvent various legal restrictions, he did not want -- or his advisers on his behalf did not want -- to do so by directly violating the law. Jack Goldsmith, in his book The Terror Presidency: Law and Judgment Inside the Bush Administration (2009), reports that when he told Alberto Gonzales and David Addington, top Administration lawyers, that "[t]he President can also ignore the law, and act extralegally," they "looked at me as if I were crazy." (At 80.)

If, then, Bush wanted to take the "bad man" view of the torture statute -- to come as close to violating it as possible, but not violate it -- then his question was legal, even if his approach was repellent.

If, on the other hand, Bush wanted to arrange an escape from liability akin to flight to a country from which extradition would be impossible, that context would make his question part of an illegal scheme. Suppose, for instance, that he consciously engineered knowingly false advice from counsel, advice that could be transmitted through the executive branch, and then secured passage of legislation making reliance on advice of counsel a defense against criminal liability -- that might be the equivalent of planning one's flight from prosecution. But if, on the other hand, President Bush sought and obtained good faith advice, and then obtained legislative support for a defense of good faith reliance on this advice, all that would likely be entirely legal. 

There is also a third possibility. Waldron describes it in his book, Torture, Terror and Trade-offs: Philosophy for the White House (2010). There he says that "[w]e know, for a fact, that administration lawyers strove mightily in 2002 and 2003 to undermine the clarity of the legal framework relating to torture. . . . The aim was to create an atmosphere in which honorable people, inside and outside the armed forces, would come to think of the rule against torture as a muddled and difficult technical issue rather than a clear and uncompromising prohibition." (At 266.) The point, to quote Goldsmith again, was that "[t]he President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did legal." (Goldsmith, at 81.)

Let us assume that these descriptions are accurate, and furthermore that what the lawyers did was what the President asked them to do (though exactly what the President himself asked may be quite uncertain). In that case, his question was not "what precisely does the torture statute prohibit?" but rather something like "Please devise a plausible argument that the torture statute does not prohibit very much."

It seems to me that even this question is not forbidden by Waldron's initial injunction that no one has the right to demand specificity concerning the statute. The President, on this account, was not demanding that the law be acknowledged to be X. Rather, he was asking his lawyers to argue that the law is X. Argument that the law is X, or Y, however, is an absolutely standard part of the process of determining what the law actually is. Lawyers routinely say things to the effect that "under the law, rightly interpreted, my client has acted lawfully." Then they support that claim with elaborate interpretive arguments. In doing so, the lawyers are bound by good faith, but they are not actually required to believe their own contentions. If the net result is to persuade others -- "honorable people" -- of the correctness of the view they've asserted, all that is just part of our society's process of lawmaking.

That would not be so, however, if the President's question was something like "Please devise some argument, no matter how preposterous and unreasonable, that the torture statute does not prohibit very much." If that was the President's question, then he might well have been asking the lawyers to violate their duty of good faith -- and then we would be approaching the "illegal scheme" zone again.

I asked near the beginning of this post whether it was "legitimate" for a President to ask for a precise interpretation of the torture statute. What I've answered is that in general -- not always, but in general -- it is perfectly legal and legitimate for clients to ask their lawyers for as much precision as can be discerned, and even to ask their lawyers for advocacy of particular interpretations on their behalf. This is important, because if the President can legitimately ask this question, then we need to consider how it should legitimately be answered (and this is what I've been trying to do in the essay I mentioned).

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I have left one possibility unexplored till now, and want to briefly consider it: namely, that the President's questions might be legal, but still illegitimate. Broadly we can imagine two different kinds of illegitimacy, which we might call "procedural" and "substantive."

What would procedural illegitimacy be? Here's one possible answer: perhaps the President does not have the same prerogative to ask lawyers to concoct arguments on his or her behalf as ordinary clients do. Much of the work of interpreting the torture statute and other laws that constrained the Bush Administration's response to 9/11 was done by the Justice Department's Office of Legal Counsel, and it is quite possible that that office has acquired special duties of dispassionate analysis that were violated by the legal work done in the Bush era. Especially because the Office of Legal Counsel's opinions evidently are often treated within the Executive Branch as authoritative rather than just more or less persuasive, it is also quite possible to argue that if the President deliberately sought opinions that required the lawyers giving them to violate those duties of dispassion, then his requests were illegitimate. They would have been all the more illegitimate if the President then relied on the reputation of the office as a basis for "selling" its opinions to soldiers and investigators and interrogators; and they would also have been all the more illegitimate if those lower-level officials who wanted to escape the prohibition on torture understood and embraced the President's maneuver. But it should be acknowledged that exactly how dispassionate the office must be is a contested matter. Perhaps the point is most contestable in the field of war and foreign policy, where it is possible to argue that the President's interpretations of our legal duties are constitutionally entitled to some measure of deference; arguably, the President is entitled to endorse interpretations that legal reasoning alone would not support.

And what about substantive illegitimacy? Waldron argues in his book that the prohibition on torture is a key, fundamental part of our legal order. It would follow that deliberately seeking to undercut its force would damage not just the strength of this prohibition but other integral components of the rule of law. This is damage not to how the law is arrived at (procedure), but what the law is (substance). Waldron's argument is important, though I hope to return to the issue it raises, of just when a challenge to some part of our present law should be deemed illegitimate rather than seen as part of the ongoing process of argument through which our law lives.

For now, I'll just say that if the President's questions are legal, then even if they are illegitimate they may deserve an answer -- but the lawyers giving the answer may be able to do so in ways that resist the illegitimacy.

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