The limitations of legal judgment in the war on terror.

The limitations of legal judgment in the war on terror.

The limitations of legal judgment in the war on terror.

The law, lawyers, and the court.
Sept. 12 2007 5:47 PM

A Model of a Modern Attorney General

The limitations of legal judgment in the war on terror.

James Comey. Click image to expand.
James Comey

The looming announcement of the president's pick to replace Alberto Gonzales as attorney general has occasioned speculation about which prominent attorney on President Bush's short list could easily be confirmed. Michael Chertoff is out. Ted Olson is a front-runner. This makes for some fascinating inside-baseball chatter—how much of a fight is the president looking for, and how much will Olson have to account for his alleged ties to the Arkansas Project? But the chatter misses an important opportunity for an overdue public conversation about the role of the president's lawyers, be it White House counsel, the attorney general, or elsewhere in the Justice Department.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

A confirmation fight in a vacuum—one that does not include a good, hard look at what happened to the Justice Department under Gonzales, how to fix it, and the proper role of attorneys and attorneys general in a national security crisis—is a lost chance. Nobody believes the cancer at Justice is gone with Gonzales' departure, so now is the time to reflect soberly on what kind of lawyering at the top will cure what ails DoJ.

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Whole books have been and will be written about what's gone wrong at this Justice Department, ranging from partisan political criteria used in hiring to pressing federal prosecutors into service as Karl Rove's personal vote-fraud vigilantes. It's increasingly tempting to lionize John Ashcroft as the consummate conservative attorney general based on the two simple facts that: 1) He once told the president "no"; and 2) he isn't Alberto Gonzales. Those two criteria are necessary but not sufficient in selecting the next attorney general.

Perhaps the best way to diagnose the pathology of Bush's highest-ranking lawyers is in the observations of some of those lawyers themselves. This morning, Marty Lederman links to a 2005 speech by former Deputy Attorney General James Comey reprinted in the Green Bag. The speech was delivered at the NSA in Maryland, just months before Comey left the department. It's worth reading in its entirety as a thoughtful meditation on what lawyers do, and what they do best. But knowing what we now know about Comey's role in resisting Bush administration programs he believed illegal, the most revealing part of his speech is the section titled "Intelligence Under the Law—The Value of No."

Comey notes that it can be nearly impossible for lawyers working in the intelligence community to say no, because in response they tend to hear the words: "If we don't do this, people will die." (The this in question ranges from approving new data collection methods, to interrogation techniques, to expanding executive authority.) For Comey, when there's a collision between the duty to protect life and the duty to protect the Constitution, the tie cannot always go to preserving life. Some people may call this empty legalism. Comey sees it as promoting the rule of law.

He notes that the legality of hasty choices made in the heat of battle will not be weighed in the heat of battle, but "in a quiet, dignified, well-lit room, where they can be viewed with the perfect, and brutally unfair vision of hindsight." But that same "unfair" hindsight isn't just a pesky inconvenience. It preserves something larger: "The reputations of our great institutions." Comey testified this summer that "I don't know any way you can get the department's reputation back" if allegations about its recent politicization proved true; in his speech, we see that for him, the reputation of the DoJ is not just an abstraction.

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Comey concludes that "it takes far more than a sharp legal mind to say 'no' when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified 'yes.' "

Former head of the Office of Legal Counsel Jack Goldsmith, whose new book, The Terror Presidency, was excerpted in Slate this week, sounds several of the same notes. Certainly, his was also an uneasy exercise in saying "no" to the Bush administration, during his brief tenure there from 2003-04. Yet one maddening aspect of his book is that while it freely and justifiably takes aim at various models of bad government lawyers, it doesn't offer many insights into what a good one might look like. Goldsmith splays out the gallery of lawyers-we-hate: the sanctimonious practitioners of "lawfare" who have effectively "judicialized" war, and the risk-averse worrywarts, so terrified of future criminal liability that they consistently opt to "play it safe." We meet the nodding yes men, and the hired-gun government lawyer who happily drafts interrogation opinions that are "more an exercise of sheer power than reasoned analysis." Let's agree that when the president's lawyers either ignore or misrepresent the law, they're bad lawyers. But the question Goldsmith leaves mostly unanswered is, where are the good government attorneys, and what the heck should guide them?

Here at Slate, we've logged some mileage fretting about these same questions. Here's a little from Dawn Johnsen, Phillip Carter, and me, for instance. For Goldsmith and Comey, the answer has less to do with lofty first principles and more with the pragmatic recognition that lawyering in a time of national crisis is hard, if not impossible. The rules of the game have changed too fast. It's not just that today's government lawyers will be judged someday in the light of unfair hindsight, while Jack Nicholson, in A Few Good Men, hollers, "You want me on that wall! You need me on that wall!" And it's not just that today's government lawyers have to pick their way through a minefield of civil and criminal liability that would have had FDR's attorneys wetting their pants. It's that the president's lawyers have been given too much responsibility for the ultimate decisions in the war on terror. Because of the consummate authority of the Office of Legal Counsel, which is virtually a Supreme Court for the executive branch and whose decisions face no external review, their best guesses about law have morphed into ultimate policy conclusions.

Last April, in another important speech about lawyers, Philip Zelikow, executive director of the 9/11 commission and formerly a close adviser to Secretary of State Condoleezza Rice, deplored how the debate about the war on terror after 9/11 consisted of "lawyers arguing with other lawyers." As a consequence, Zelikow observed, the debate rapidly devolved from "what should we do" into "what can we do." By letting lawyers dominate the conversation about how to fight terror, we lost, according to Zelikow, a sense of scope. Legal answers became the final answers, rather than merely informing what should have been broader, more nuanced conclusions.

One of the most telling lines in Goldsmith's book comes with his revelation that someday his own legal conclusions will be judged largely based on whether he could "predict the future correctly." But, of course, that's not a legal conclusion. It's the confession of someone who was asked to be a wizard or a prophet. Comey too talks about the intelligence lawyer's need "to see the future" —a skill not taught in any ABA accredited law schools last time I checked. The latest admissions of all the president's lawyers reveal that there is nothing magical about what they do. They offer their best guesses as to what the law will permit, then hope to be vindicated in those quiet bright rooms someday in the distant future.

It requires more humility than many lawyers possess to say either "no" or "I don't know" in the face of unknowable future events. Perhaps it takes even more humility for the president's lawyers to suggest that those guesses are a necessary component of a larger war on terror, but cannot be the whole story.