Government Lawyers’ Ethical Obligations and the War on Terror

Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore “legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

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5 Responses

  1. John Steele says:

    Interesting post. I wanted to comment on just one part, near the end, where you wrote: “To avoid such ‘ethically blinkered’ results, insists Shane, government lawyers ‘must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.’”

    The notion that the client of a government lawyer is the American people has some intuitive appeal. but there’s a lot of problems with it. First, to my knowledge the cases run the other way. The Model Rules, 1.13[9] run the other way. Second, defining the client that way throws the normal law of lawyering into confusion. For example, the client chooses the lawful objectives of the representation and the lawyer must consult with the client about the tactics (or means). Well, those rules and lots of others suddenly don’t make sense. Third, it runs counter to standard practices that no one has found problematic. There are lawyers in all three federal branches who spend much of their day figuring out how to stick it to the other two branches. That’s to be expected. But if the client is the “people,” then the lawyers have been hijacked by non-clients and put to personal purposes.

    The better approach, it seems to me, is to treat the government lawyer as a lawyer who represents an entity that has fiduciary duties to others.

  2. Jake says:

    As part of the justification for punishing government lawyers who wrote legal memos that some now find objectionable, it is stated that “there are widely understood standards for what is ‘good lawyering,’ including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.”

    If these standards of “good lawyering” are so widely understood, then why do law schools routinely turn out graduates who have no clue whatsoever about these matters?

    Stated another way, if violations of these “good lawyering” standards were enough to support professional sanctions, about 90% of the bar would be in deep trouble.

  3. Andrew Taslitz says:

    John: I think you’re very likely right. I have to admit that I paused about including the “American people” quote for similar reasons. On the other hand, prosecutors, one kind of government lawyer, though perhaps a unique kind, are often said to be obligated to “do justice.” That phrase itself is ambiguous and certainly doesn’t spell out who is the prosecutors’ client, but your approach might work for that situation as well. Taz

  4. Andrew Taslitz says:

    Jake: In my experience anyway, new lawyers working at well-respected institutions are quickly socialized into these standards. And Shane himself talks about how they were widely embraced when he worked in the Justice Dept. under another administration. On the other hand, knowing standards and complying with them are two different things. Perhaps more importantly, I have to admit, even though I teach law students for a living, that I think that law schools generally do a poor job of teaching students the full range of what a professional culture requires and of putting them in situations where they really have to grapple with client and political pressures. I think the reasons for this are complex, but certainly many professors know what the culture requires. Their choice not to teach it or incorporate it into the curriculum for others to teach is not, I think, evidence that they don’t share the standards. They just see their roles as teaching something different and, when it includes lawyering standards, something narrower than practice actually requires. Now I’ll await the assault of my colleagues. Thanks for the post. Taz

  5. John Steele says:

    Andrew,

    As I understand it the Hofstra conference this fall will focus on this issue of government lawyers. And I often turn to the work of Kathleen Clark when these issues arise.

    I often hear that the government lawyer has a “higher calling” or “higher duty.” Again, it’s intuitively appealing to me. When I hear that I often ask this hypo. Suppose we had identical twins with identical legal educations. One takes a first job with the State Dept, the other with Halliburton. On their first day of work, each is asked to write a legal memo that defines torture under US law. Would the memos be identical? If not, why not? The proponents of the “higher duty” thesis have a hard time answering those questions. I think it’s a difficulty issue.

    A different, less problematic issue is whether government lawyers defending ordinary tort claims ought to employ the same bag of rhetorical and negotiating tricks that private practice lawyers do. Someone wrote an interesting law review article about that, but the author escapes me at the moment.