I make a few points in my book.
First, the memos were requested and written before I arrived at the White House in early 2005, and furthermore this is not the type of matter that is brought to the attention of government ethics lawyers. This is part of the problem. Government ethics lawyers should be consulted in the White House and in the agencies about a wide range of matters about which they are never consulted (e.g. document retention policies, proper procedures for dismissing political appointees, etc.). Instead ethics lawyers are tied up in the infinitely complex financial disclosure system (Form 278). They are kept busy arguing with dozens of prospective nominees each year about whether all of the underlying holdings in a hedge fund need to be listed separately on Form 278 (who cares when the underlying holdings of most hedge funds change so quickly that the Form 278 will be stale in about a week).
Second, the questions answered in the memos never should have been asked. A sensible lawyer would know that.
Third, the answer given in these memos was deficient on its face. One does not have to be an expert on international law, the Constitution or the Convention Against Torture to read the memos and know that they are one-sided and rely on thin logic. The “self defense” argument justifying torture, for example, cannot be right. War, if justified at all in a civilized society, is justified principally in self defense. Torture, however, is not acceptable in war. That is the whole point of the Convention. Some of the memos argue that the Convention and other similar treaties cannot bind the President under the Constitution, but one wonders then why the United States signed them. Would the framers really want to deny to the United States the power to make binding treaties? The OLC memos at least had to recognize that there were arguments on the other side, and that the law could be different from what the OLC said it was.
Fourth, the OLC memos probably were so bad in part because the lawyers who wrote the memos, unlike lawyers who provide legal opinions to private clients, did not have to answer for them. Government lawyers don’t get sued for malpractice when they give bad advice; private practice lawyers do. OLC lawyers instead get judgeships, recommendations from political superiors for private sector jobs or they go back to tenured posts in universities. In my book I call these skewed incentives the “malpractice liability gap” between the public and private sectors. I explore ways to address the gap, but as a practical matter it would be difficult to use a malpractice liability regime to hold government lawyers accountable.
Finally, there is the argument that these are no different from the one-sided opinions that OLC has rendered in the past to stretch the law as far as it will go, and sometimes further, in favor of the President’s executive power. President Franklin Roosevelt used Justice Department lawyers to justify expanding his powers before and during World War II and many of his successors did the same. Still, as widely recognized by former OLC lawyers, there are limits to how far OLC can go. For an insightful analysis, see John McGinnis, Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 434 (1993) (pointing out a difficult balancing act because the OLC is not useful to the President unless it has credibility and a reputation for independent legal analysis).
Most important, the “torture memos” took OLC into un-chartered waters. They implicated not only the Constitution and federal statutes, but international law including treaties to which the United States was a signatory. Our adherence to widely accepted laws of war hung in the balance. Our own soldiers would probably be at greater risk as a consequence. The subject matter was grotesque. The memos authorized a violation of human rights that involved human suffering. Religious leaders of all faiths around the world condemned the policy as immoral. At least one Senator heard about the matter from the Presiding Bishop of the church in which he had been raised. See Letter dated October 16, 2005 from The Most Rev. Frank T. Griswold to Senator John McCain (R AZ) (expressing appreciation for “your efforts to preserve intact the Senate approved amendment to prohibit cruel and inhumane treatment of those held in the custody of the United States”). There are not many pastors, priests, rabbis or imams who would disagree. The topic was so inflammatory and the legal reasoning in the memos so flimsy that a successor head of OLC took the unusual step of rescinding them. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007). For all of these reasons, this was an area for OLC to tread lightly in its quest for expanded Executive power. OLC instead chose to barge ahead heedless of the consequences.
In short, there is serious doubt about whether the questions put to OLC should ever have been asked in the first place, as well as serious doubt about whether OLC was acting responsibly in the way it answered them. A government ethics lawyer might not have been able to help, but I doubt one had an opportunity to even try.
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