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.

Staying within the limits of the law -- and what are those limits?

In a book full of startling details, one of the most striking incidents in Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration (2009, 2007), is the story of his raising the possibility that the President might simply disobey the law as part of the fight against terrorism. (80) The idea of conscientious Presidential lawbreaking is certainly troubling, but (as Goldsmith explains at 80-81) it is not necessarily disrespectful of the rule of law, if the President in effect says to the country, "Here is what I've done because I felt you needed it done. If you disagree, I stand ready to suffer the consequences."

But the reaction of Goldsmith's counterparts in the Administration was simply stunned amazement. "Gonzalez and Addington [counsel to Bush and Cheney, respectively] looked at me as if I were crazy." (80) They were not about to have President Bush deliberately violate the law. This from an administration notorious for having, as it seemed to many (including me), disregarded the bounds of law repeatedly! But that's the point -- the Bush Administration saw itself as bound by law, but (overstating a bit) declined to see any boundaries in the law.

Putting that point less pejoratively, Goldsmith writes that "Michael Hayden, former NSA Director General and now [in 2004] the Director of the CIA, would often say that he was 'troubled if [he was] not using the full authority of the law' after 9/11, and that he was 'going to live on the edge,' where his 'spikes will have chalk on them.' Hayden's view permeated the executive branch after 9/11, and in light of the clear public demand to act aggressively to stop the terrorist threat, I agreed with it. My job was to make sure the President could act right up to the chalk line of legality." (78)

Goldsmith believed that "even blurry chalk lines delineate areas that are clearly out of bounds" (78), and in his short tenure as head of the Justice Department's Office of Legal Counsel (OLC) he courageously withdrew a number of OLC opinions that he concluded had breached those bounds. But it seems fair to say that the gist of the torture opinion that John Yoo wrote and Jack Goldsmith withdrew was that in the end the various legal restraints thought to bar the President from authorizing torture were either so full of holes or so beyond constitutional authority that in fact the President's power was unlimited.

My impression is that once it is important to find an argument for a legal proposition, there is almost always an argument to be found. In fact, once money and time are applied to a legal problem, the chances are that many arguments can be found. That doesn't mean those arguments are correct, or convincing, but they are within the bounds of plausibility. Indeed, if the bounds of plausibility are simply the bounds of what conventional argument will accept as worth saying, the sheer repetition of a claim by people with prestige and influence is likely to expand the conventional bounds enough to bring the claim within them. All of which poses the question of whether Goldsmith was right that there really were chalk lines that separated what was lawful from what was unlawful. To our good fortune, Goldsmith felt there were and acted on that conviction; but was he right? That's a subject for posts to come.

Clinical Theory Workshop 25th Anniversary Conference

I can't resist reporting here that this conference -- an anniversary party for the Clinical Theory Workshops, which I've chaired for 25 years -- took place last weekend, October 1-2, 2010, at New York Law School. The theme was "Twenty-Five Years of Clinical Scholarship: What Have We Learned, and What Should We Work on Next?" Possibly that question wasn't completely resolved, but the discussions along the way were great. You can see much more information about the conference at the New York Law School conference webpages.

I'm so grateful to everyone -- planners, presenters, facilitators, attenders (not to mention actors, songwriters and other mockers who took part in a gentle roast of yours truly) -- for all the effort they put into the conference. And the workshops, 25 years old and going strong, are the work of all of us who attend and have aimed over the years to build a forum that is serious, supportive, constructive and fun all at the same time. Thank you to all! Borrowing from the song lyrics that Bob Dinerstein wrote for this weekend, don't say nothin bad about our workshop!