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A Model of a Modern Attorney GeneralThe limitations of legal judgment in the war on terror.

By Dahlia Lithwick
Posted Wednesday, Sept. 12, 2007, at 5:47 PM ET

(Continued from page 1)

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.

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Dahlia Lithwick is a Slate senior editor.
Photograph of James Comey by Alex Wong/Getty Images.
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