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Another Internal Justice Investigation:

The Washington Post reports the Justice Department's Office of Professional Responsibility is investigating the "circumstances surrounding" the drafting of the so-called "torture memos" within the Office of Legal Counsel. According to one DoJ attorney, the investigation will consider "whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."

FC:
It's like watching pirhanas eat each other.
2.25.2008 12:05am
BruceM (mail) (www):
How about if they wait for the next, non-Bush administration to do this? Considering how the current DOJ has been politicized (e.g. US Attorney firings for not being "loyal Bushies"), this investigation seems like nothing more than a means of rubber stamping "Entirely Proper" on the torture memos. Surely the loyal Bushies in the DOJ OPR will not put a patina of impropriety on the Bush administration's beloved terrorist interrogation tactics.
2.25.2008 12:06am
OrinKerr:
Surely the loyal Bushies in the DOJ OPR will not put a patina of impropriety on the Bush administration's beloved terrorist interrogation tactics.

BruceM, have you been following the staffing at OPR, or are you just assuming this to be the case?
2.25.2008 12:33am
BruceM (mail) (www):
Orin, I'm assuming it to be the case based on the rationale that if the people at OPR heading up this investigation were not loyal Bushies, they (1) would have been fired (told to resign) and replaced with people more loyal to the administration and its methods and/or (2) they would not have been given this assignment to investigate memos which formed the foundation of years of Bush adminstration policy. It seems like a reasonable assumption based on past Bush administration actions. Additionally, any presumption that the DOJ-OPR is somehow more shielded from Bush administration partisanship than other DOJ departments seems highly unwarranted.

Even if I'm completely wrong, it's been established that the Bush administration has intentionally politicized the DOJ to further its own agenda, rather than to enforce the laws of the United States in a neutral, bipartisan manner. That being the case, any internal DOJ investigation has, at the very least, the appearance of being biased in favor of the administration's policies and practices. As such, any investigation of the "circumstances surrounding" a controversial DOJ action should be initiated by a tribunal independent of the administration. Appoint a special prosecutor, ask a retired federal judge to look into it, create a bipartisan panel to investigate it... I'm sure there are many other ways to go about such an investigation while maintaining a minimal appearance of legitimacy.

All I'm saying is since the Bush administration has politicized the DOJ by firing, hiring, and appointing DOJ employees based on loyalty to the administration, any investigation of the DOJ's politically controversial actions by the DOJ's presumptively partisan employees is inherently suspect, at best.
2.25.2008 1:21am
Dave N (mail):
Frankly, a thiry second Google search quickly demonstrates how absolutely trollish BruceM's comments were and that OK was right to call him on it.

First, I went to the linked article, then I Googled H. Marshall Jarrett, identified as counsel for the OPR. Then I Googled Mr. Jarrett's name. The very first link tells me that Mr. Jarrett was appointed to his current position by that arch-Republican and Bush loyalist, Janet Reno. He has held the position for over a decade.

I realize this conflicts with BruceM's worldview. But hey, why let facts get in your way when you want to smear career prosecutors at the Justice Department?
2.25.2008 1:31am
OrinKerr:
BruceM,

Seems like we've been disagreeing on everything these days, so this is just one more to add to our already-long list. It seems to me that your narrative is unlikely. First, in my experience at DOJ, OPR was staffed entirely with career lawyers. Second, if there were a partisan agenda, I would think it would have blocked the existence of the investigation, not allowed it and staffed it with loyalists. Third, note that there is a new AG in town. Given these three factors, I tend to think that your confidence in your view is unwarranted.
2.25.2008 1:41am
BruceM (mail) (www):
Dave, just because the Clinton administration was open to appointing people who were not "loyal Clintonies" doesn't mean the same is true about the Bush Administration. You're using the same logic you're chiding me for using by assuming someone appointed by the Clinton Administration is therefore loyal to Democrats (and thus not loyal to the Bush Administration). Maybe Janet Reno felt Jarrett was most qualified for the job, despite being a loyal life-long Republican? Who knows.

Anyway, there's certainly a compelling reason why Jarrett survived in his job as OPR counsel through both Ashcroft, Gonzalez, and now Mukasey. We're talking about an administration that fired die-hard Republican US Attorneys beacuse they were not loyal enough to the Bush Administration's policies.

And again, even if I'm completely wrong (I very well may be), it seems improper to have this DOJ investigate politically contentious decisions made by this DOJ. Have someone who doesn't answer to Bush or his AG head up the investigation. What's wrong with that?

I should note that "loyal Bushie" is a term used by the Bush Administration with respect to DOJ employees, not an epithet I'm using for purposes of being a troll.
2.25.2008 1:53am
BruceM (mail) (www):
Orin: You may be correct, but the smell of partisanship in the DOJ still lingers. I'd like to believe that whole affair was solely a product of Alberto Gonzalez's lack of leadership, and the same thing will not occur under Mukasey. But I'm skeptical. At this point, 3 years into the 2nd term of the Bush Administration, I expect the worst and hope for the best.

Even if I'm completely wrong and every last taint of partisanship has been removed from the DOJ, I still contend that an investigation of something as politically charged as the "torture memos" (which the administration relied on to support its interrogation methods) should be conducted outside of the DOJ. After all, a finding that the torture memos were improper and unethical would call into question the actions of the administration conducted in reliance on those memos. That would be a huge embarassment for Bush, who routinely cites the "torture memos" as evidence that "the United States does not torture people."
2.25.2008 2:05am
Vermando (mail) (www):
Allow me to say that, irrespective of the sad politicization of the current DOJ, the worst outcome would be to just wait until the next administration is in power - if we're worried about politicizing something and getting an investigation without legitimacy, there would be no better way to do that than to have it led by a liberal AG under a President Clinton or Obama.

That aside, does anyone have any insight into this issue? A friend of mine speculated a couple of years back when President Bush and AG Gonzales still seemed untouchable that the lawyers who had worked on some of this were in violation of ethical codes because their duty was to provide honest advice on the law, not to try to find ways to manipulate it in the President's favor. That argument, though, depends on the exact role of the lawyers who gave the President the advice, as well as where our professional standards draw the line between advising on the law and advising how to get around / use the law.

Insight from anyone with insight / expertise on this point - particularly the institutional dynamics at play - would be greatly appreciated.
2.25.2008 2:06am
Dave N (mail):
BruceM,

Did you bother to even read the press release I linked to? Your response indicates the answer is "no." As the DOJ's 1998 press release indicates, H. Marshall Jarrett is a career DOJ prosecutor. If you did the same Google search I did, you would even see that Mr. Jarrett has had other investigations he has tried to launch blocked by others within the Bush Justice Department--including trying to investigate the NSA wiretapping program. At least, that's according to the Republican house organ, CBS News.

So again, unless you have evidence of some sort that Mr. Jarrett is unethical or somehow biased, you are the one smearing a man who appears to be a career DOJ official and those who work with him at OPR.
2.25.2008 2:13am
BruceM (mail) (www):
Dave, maybe it's not a valid presumption that Jarrett will be the one doing the hands-on, day to day investigation. He's the Counsel to the OPM. I'm sure there are many other people below him who'll actually be handling the investigation (whatever form it may take).

I'm not smearing Jarrett. I only said that, based on prior practices of the Bush Administration (which hopefully ended with Gonzalez's departure), any high-ranking DOJ official is presumably very loyal to the Bush administration, otherwise he/she would have been asked to resign and would have been replaced with someone on a list compiled by Karl Rove. But I'm open to the idea that all the problems within the DOJ have been remediated. I sincerely hope that is the case.

However, all I really intended to say is this: considering how blatant the partisanship at the DOJ has been in recent years, if the OPR concludes its investigation by finding that the lawyers who authored the "torture memos" acted properly, without a scintilla of ethical impropriety, I will be, at the very least, hugely skeptical. I can't imagine I'd be the one one who'd feel that way. As such, I'm of the opinion that any investigation of the propriety of the "torture memos" should be conducted outside of the DOJ. The DOJ-OPR can abide by any of the findings for purposes of addressing ethical failures on the part of the DOJ attorneys who wrote the memos.

Orin: if you have any info about systems, policies, and procedures in place at OPR to neutralize the effects of the political pressures that other branches of the DOJ have exerted upon them, I'd be very interested if you'd elaborate.
2.25.2008 3:01am
donaldk2 (mail):
Am I mistaken (I know I'm not) that Bill Clinton fired every US Attorney his first week in office? That he chose of all people Webster Hubbell as his de facto Justice Dept. boss?

I suggest to BruceM that his predilections and forms of argument would be more constructive at KOS.
2.25.2008 7:24am
PersonFromPorlock:

Dave, just because the Clinton administration was open to appointing people who were not "loyal Clintonies"....

Had to get my wife to kick me in the chest and restart my heart after I read that! And FWIW, I'm just as cynical about this investigation as BruceM is.
2.25.2008 7:54am
PLR:
BruceM may be on to something. The Post article states that the OPR's investigation began in 2004, and it is now 2008.

Perhaps they're just being thorough.
2.25.2008 9:13am
Anderson (mail):
I think the length of time weighs against the investigation's being a whitewash. They could've accomplished that quickly enough.

So what are the possibilities? (a) A genuinely critical report that's being held up by higher-ups for political reasons. (b) Inability to complete the report due to non-cooperation from its subjects or from superiors. (c) Procedural delays, perhaps for instance due to the lack of filled leadership positions during the USA's scandal.

Anyone else got a foggy crystal ball?
2.25.2008 9:54am
Tom S (mail):
DonaldK;

To spell it out for you: Incoming adminstrations typically demand the resignations of those appointed by the previous administration. What made the Bush administration's dismissal of some US Attorneys in his second term of office peculiar was that those who were fired were 1) Bush appointees; 2) allegedly not cooperating with Republican or adminstration political goals; 3) had been given excellent performance ratings, which were contradicted by an adminstration spokesman, when he attempted to explain why they had been fired.
2.25.2008 10:05am
rarango (mail):
Anderson: I gave up my crystal ball shortly after the Iowa caucuses--I thought the election would come down to a HRC-Guiliani contest!

As to the investigation, I am not clear about precisely what this means: "Legal advice consistent with "professional standards"..... I know whose legal advice, but I am not clear on the professional standards. Are we talking about the procedure by which the memos were created? the underlying support for those memos? can someone explain this to a layperson like me?
thanks.
2.25.2008 10:13am
Anderson (mail):
Rarango, I'm just guessin' myself, but innumerable threads at this blog have explored the claim that the most notorious of the "torture memos" was egregiously bad by any professional standards, such that it seemed to be deliberately misstating the law in order to reach a desired result.

I would think that would fall below anyone's professional standards. But who knows. Maybe it was supposed to be printed in Courier, not Times Roman.
2.25.2008 10:23am
rarango (mail):
Anderson: thanks--that was my guess as well--basically, the smell test;! but for layperson like me, GOK how some legal decisions are reached.
2.25.2008 10:27am
PLR:
I think the length of time weighs against the investigation's being a whitewash. They could've accomplished that quickly enough.

I wasn't suggesting a whitewash.

When has the OPR actually issued a report on anything it claims to be investigating? How's that investigation going on domestic surveillance? Or the one looking at whether Gonzo committed perjury in his Senate testimony? Or the one looking at Goodlinggate and the politicization of U.S. attorney hirings?

Speaking of politicization, heck of a piece on 60 Minutes last night about the railroading of Alabama's former governor. What a thoroughly disgusting miscarriage of justice, with Karl Rove's fingerprints all over the crime scene.
2.25.2008 10:32am
Anderson (mail):
but for layperson like me, GOK how some legal decisions are reached.

It's iffy in many cases. One of the *most* glaring problems with the Yoo-Bybee memo was that it professed to be addressing the scope of executive wartime power vis-a-vis the Congress, while failing to even mention the leading Supreme Court decision on the subject, Youngstown Steel. You do not ignore precedents like that -- distinguish them, argue against them, whatever, but you can't do a professional job as a lawyer without mentioning them and explaining how they relate to your argument.

It would be like my giving a client a memo on federal abortion rights without mentioning Roe or Casey.
2.25.2008 10:34am
J. F. Thomas (mail):
One of the *most* glaring problems with the Yoo-Bybee memo was that it professed to be addressing the scope of executive wartime power vis-a-vis the Congress, while failing to even mention the leading Supreme Court decision on the subject, Youngstown Steel.

Not only that, but in its discussion of torture and the definition thereof, it completely ignored the International Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The U.S. is a signatory to that agreement and it is codified in U.S. law (it is a treaty signed by the president--Reagan I believe--and ratified by the Senate). As the title indicates it bans more than simply torture (which the Yoo-Bybee memo mistakenly claimed was the only thing banned under U.S. law). To claim, as the President does frequently and the memo contends, that "we don't torture" is good enough and means the administration is following the law, is simply wrong.
2.25.2008 11:06am
The Unbeliever (mail):
But who knows. Maybe it was supposed to be printed in Courier, not Times Roman.

In any government bureaucracy, egregious font violations never go unpunished.
2.25.2008 12:30pm
Bruce Hayden (mail) (www):
t's iffy in many cases. One of the *most* glaring problems with the Yoo-Bybee memo was that it professed to be addressing the scope of executive wartime power vis-a-vis the Congress, while failing to even mention the leading Supreme Court decision on the subject, Youngstown Steel.
You must be reading a different Youngstown Steel than I did. You seem to be suggesting that failing to cite a one justice concurrence is somehow negligent or worse.
2.25.2008 12:46pm
Mark Field (mail):

In any government bureaucracy, egregious font violations never go unpunished.


And courts are among the worst offenders (e.g., FRAP 32). I have this mental image that some gnome sits in the clerk's office with a magnifying glass and a ruler, determined to find a font violation and reject a brief.
2.25.2008 1:31pm
Anderson (mail):
Oh, Bruce ... still the die-hard. Because of course, that concurrence hasn't been given any special weight in subsequent cases, let alone in the con law textbooks. We've been over all this before, and those determined to be unconvinced -- or to mislead the unwary -- are not going to change their positions.

But of course, Yoo didn't just skip citing to Justice Jackson's concurrence -- he omitted any discussion of the case at all.

Bottom line: if I assigned an associate to do a memo on any topic involving the executive-legislative tension on war powers, and he brought me back something that didn't even MENTION Youngstown Steel ... I would send him back and tell him to pull that case and fit it into his analysis. I think any responsible lawyer would do the same.

And I don't think that's a remotely controversial judgment, which is one reason why an inquiry into the professionalism of the Yoo-Bybee memo is called for.
2.25.2008 2:20pm
AnonLawStudent:
Allow me to rephrase Anderson's rant so as to render a more realistic analysis of an internal memo intended for consumption by a knowledgeable audience:

Bottom line: if I assigned an associate to do a memo on any topic involving the executive-legislative tension on spending powers, and he brought me back something that didn't even MENTIONED the statement of Alexander Hamilton that "the purse is lodged in one branch, and the sword in another" ... I would send him back and tell him to cut it down by 20 pages and cite something more recent and binding.

What's that you say? The client doesn't want a discourse on how the English Civil War impacted the development of our constitution? I sure hope no one thinks we're professionally incompetent for deciding not to include it, even though we perform a very similar analysis on pages 33-39 of our report? It's not like he wanted us to give him advice on what to do, instead of a law review article listing the factors he should consider.
2.25.2008 3:26pm
Anderson (mail):
Anon, you may confuse the non-lawyers here, but the "knowledgeable" can distinguish between a speech by Hamilton and a decision by the U.S. Supreme Court. Nor is Youngstown Steel some kind of antique -- if there is a more thorough treatment of the issue by the Supreme Court since that time, feel free to cite it.

Btw, "rant"? You might want to look that word up before using it again in mixed company; it doesn't just mean "opinions with which one disagrees."
2.25.2008 4:21pm
LM (mail):

Btw, "rant"? You might want to look that word up before using it again in mixed company; it doesn't just mean "opinions with which one disagrees."

If my right wing friends could peer into the darkest recesses of my liberal, Stalinist heart, they'd find my fantasy of a blogosphere where everyone clicks through an acknowledgment of the norms of civil discourse, e.g., what "rant" does and doesn't mean, before posting their comments.

There, I said it. Go put me on a no-fly list.
2.25.2008 8:28pm
Kazinski:
Anderson,
Youngstown doesn't have much of an application to the Yoo "torture" memo, because Yoo specifically says in the memo that the enhanced techniques do not violate US law:

... interrogation methods used on captured Al Qaeda operatives which do not violate the prohibition on torture found in 18 U.S.C. 2340-2340A

If you can explain why Yoo should cite Youngstown to contradict an argument he isn't making, I'd be interested in hearing it. Even Mora seems to concede that Yoo's memo correctly interprets US law, when he says: "Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified." An agrument Yoo also addresses when he makes the says that Al Qaeda is not covered by the Geneva Convention, and that US has not signed and Congress has not ratified the ICC treaty. In a direct conversation with Yoo, Mora seems to concede that his differences with the memo were not on Yoo misapplying the law but with the policy implications:
On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora asked him, "Are you saying the President has the authority to order torture?"

"Yes," Yoo replied.

"I don't think so," Mora said.

"I'm not talking policy," Yoo said. "I'm just talking about the law."

"Well, where are we going to have the policy discussion, then?" Mora asked.


Seems to me Mora is making a mistake that is pretty endemic among lawyers (and judges); they think they should be making both the legal determinations and the policy determinations, and often can't tell the two apart. The way I understand it Yoo's job was to issue an opinion on what the law was, and leave the policy decisions to the Pentagon and the White House.
2.25.2008 11:10pm
AnonLawStudent:

[T]he "knowledgeable" can distinguish between a speech by Hamilton and a decision by the U.S. Supreme Court. Nor is Youngstown Steel some kind of antique -- if there is a more thorough treatment of the issue by the Supreme Court since that time, feel free to cite it.


(1) Without doing a comparison search, I would be willing to bet that the Hamilton quote is cited as many times, if not more, in SCOTUS opinions as is Jackson's concurrence. On that note, the relevant portion of Youngstown isn't a decision; it's a concurrence by a single - now dead - justice. At least a statement by Hamilton has significant implications for how the Constitution should be read; a couple of paragraphs by a single justice, no matter how succinctly they frame the issue, do not.
(2) Just off the top of my head... Nixon v. Admistrator (and progeny) comes to mind. Hell, that case even includes a test for separation of powers, and is an actual binding precedent. Who would have thunk?
2.26.2008 8:34am
Anderson (mail):
Youngstown doesn't have much of an application to the Yoo "torture" memo

That's funny, because the Yoo-Bybee memo that I'm familiar with includes several pages of argument that the President's Article II powers supersede any Congressional prohibition of torture, regardless of any alternative arguments for the legality of the various torture methods ratified by Yoo and Bybee. Perhaps you could post a link to this other torture memo?

Anon, give it up. The Bible is doubtless quoted in a fair number of judicial opinions, which I don't think makes it a legal authority. And really, if you missed out on taking constitutional law, or skipped class the day that Youngstown was discussed ... well, good thing you're anonymous.

For the curious: number of times that a SCOTUS opinion cites Youngstown: 66 (Westlaw search of "343 U.S. 579").

Number of times that a SCOTUS opinion quotes "the purse is lodged in one branch": zero (Westlaw search).

("Hamilton /20 sword /20 purse" gives us 6 hits in the entire Federal Cases database, including one SCOTUS op, Scalia's dissent in the McCreary County "10 Commandments" case ... speaking of non-precedential authorities.

What, then, could be the genuine "good reason" for occasionally ignoring the neutrality principle? I suggest it is the instinct for self-preservation, and the recognition that the Court, which "has no influence over either the sword or the purse," The Federalist No. 78, p. 412 (J. Pole ed. 2005), A. Hamilton, cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches.

So there you go, people.)
2.26.2008 9:21am
Anderson (mail):
In almost-unrelated news, William Haynes is pursuing other professional opportunities:

Last week, Col. Morris Davis, the former prosecutor told reporters that he'd had a conversation with the Pentagon's general counsel William Haynes, during which Haynes had said about the Gitmo tribunals that "We can't have acquittals, we've got to have convictions."

It made Haynes, already a controversial figure because of his role crafting the Pentagon's interrogation policies, even more controversial. Davis said that he resigned when he was put under Haynes' chain of command.

And now Haynes is gone.

A press release this afternoon from the Department of Defense:

The Department of Defense announced today that General Counsel of the Department of Defense William J. Haynes II is returning to private life next month.

Secretary of Defense Robert M. Gates said of Haynes, "I am sorry to see Jim leave the Pentagon. I have valued his legal advice and enjoyed working with him. Jim held this important post longer than anyone in history and he did so during one of America's most trying periods. He has served the Department of Defense and the nation with distinction." [Distinct, indeed. --A.]

Said Haynes, "I thank the President and the Secretary of Defense for their confidence and for the opportunity to serve. I leave the Pentagon humbled and inspired by the selfless sacrifices of the men and women, uniformed and civilian, who defend our country. And, I thank their families."


Haynes had already tried to move out of the Pentagon once -- the White House nominated him to be a federal appeals court judge, a nomination that ultimately failed due to Democratic opposition.


In a better country, he would be in prison, but any little glimmer of good news is welcome.
2.26.2008 9:28am
Anderson (mail):
Oh, and Kazinski, from Hilzoy's post on Haynes, here is something for you:

Haynes led the working group that wrote one of the most appalling torture memos (pdf). This memo argues that the President "enjoys complete discretion in the exercise of his Commander-in-Chief authority", and that "In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas." Also: "Any attempt by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." (p. 23)

Does that invoke the precedent of Youngstown sufficiently for you? Pages 20-24 discuss the President's alleged Article II power to disregard statutes ... somehow, Youngstown escapes mention there, too, though Anon will be pleased to see that Alexander Hamilton is cited.

(IIRC, the Working Group document was pretty much cribbed from Yoo-Bybee, so no surprise there.)
2.26.2008 9:37am
AnonLawStudent:

The Bible is doubtless quoted in a fair number of judicial opinions, which I don't think makes it a legal authority. And really, if you missed out on taking constitutional law, or skipped class the day that Youngstown was discussed ... well, good thing you're anonymous.


My point exactly. There are many teaching tools that are useful introductions to an area because they succinctly state a principle, but they aren't considered authoritative and needn't be discussed in a memo intended for expert consumption. This is particularly true when there are more on-point authorities with precedential effect. Youngstown provides a framework to which the Court occasionally cites in order to buttress a holding, but it has been integrated and subsumed by other cases. Your repeated citations to Jackson's Youngstown concurrence are telling - later holdings tilt the legal outcome away from the righteousness which you insist MUST be the law. Or did you miss that [first] day of law school when the difference between holdings, concurrences, and dissents was taught? Hop down off the horse, read a bit of history, and study the law.
2.26.2008 10:43am
Anderson (mail):
Keep on bailing, Anon.

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 n.23 (2006). 5 votes for that part of the opinion, btw. Even Rehnquist's tepid acceptance of the Jackson concurrence in Dames &Moore ended up couching its holding in conformity to that opinion.
2.26.2008 11:04am
AnonLawStudent:
This is such an easy game to play! In the course of a single paragraph, I can find citations to the Bible, The Merchant of Venice, and Horace's Odes; not only that, the Justices apparently found these sources so persuasive that it was necessary to distinguish them as part of the holding. See Tison v. Arizona, 481 U.S. 137, 184 n.20 (1987). As to the merits of your argument, Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 n.23 (2006) is inapposite. Correct me if I'm wrong, but the issue of military commissions goes to enumerated Congressional powers, i.e., the powers to "define and punish . . . Offenses against the Law of Nations" and, to a certain degree, to "make Rules for the Government and Regulation of the land and naval Forces." Art. I, Section 8. This is distinguishable from the memos in question, which argue that (1) certain acts don't fall under statutory legal definitions, and (2) even if those definitions are implicated, the statutes in question impinge on certain of the President's plenary powers.

Assuming arguendo that detainee treatment, other than trials, is an area of shared power (which at least one of the memos concludes that it is not), the appropriate test is articulated in Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 443 (1977). If "the potential for disruption is present," a reviewing court must "determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." On the other hand, if, as the memos assert, the President's plenary powers, e.g. C-in-C and foreign affairs, are implicated, Nixon doesn't apply, and Congress's words are irrelevant. As long as we're citing to concurrences, why not take a gander at Freytag v. Comm'r, 501 U.S. 868, 906 (1991) (Scalia, O'Connor, Kennedy, &Souter, J.J., concurring in part and concurring in judgment) (President is not required to obey statutes that infringe on his powers). I would also point out that one of the core differences between the concurrences in Youngstown and Freytag is that the latter was signed by three justices who are still sitting; it at least gives an indication of how they might vote. As for the subject of this post, what a client gets depends on what the client asks for: if he wants an answer to "can I do this, yes or no," he likely doesn't care about uncertainties in the law.
2.26.2008 12:39pm
Colin (mail):
As for the subject of this post, what a client gets depends on what the client asks for: if he wants an answer to "can I do this, yes or no," he likely doesn't care about uncertainties in the law.

Hopefully by the time you're an Anonymous Lawyer you'll have learned that your responsibilities to your Anonymous Clients are not always determined by their expectations. If they want an answer that doesn't fit the state of the law, you can't ignore the law to fit their expectations. If the client asks "can I do this, yes or no," and the law on the matter is uncertain, your answer should be, "the law is uncertain." You may also say "probably yes" or "probably no," but you're screwing your client and your own professional responsibilities if you ignore actual uncertainties because the client doesn't want to hear about them.

And if a single-justice concurrence is relevant, and provides guidance widely recognized as being significant to the questions being asked, a comprehensive memorandum should include it. That's true even if the justice is dead, it's not binding precedent, it's inconvenient to your conclusions, or it's not what the client wants to hear. A concurrence by a justice of the Supreme Court--even a dead one--isn't in the class as the bible, Shakespeare, or Horace. It shouldn't be ignored, especially when there is (relatively) little other precedent on point.
2.26.2008 9:20pm