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Sometimes it’s a lawyer’s job to say no. But in the Bush administration’s war on terror, it has been more about getting to yes. In the year following the Sept. 11, 2001, terrorist attacks, senior administration lawyers said yes to the mass roundup of Middle Eastern men on routine immigration violations. Lawyers said yes to the incarceration and interrogation of foreign fighters outside the constraints of the Geneva Conventions. They said yes to the indefinite detention of U.S. citizens with minimal judicial supervision and without access to legal counsel. And with last week’s disclosure of two secret legal reports from the Justice and Defense Departments, it appears that senior administration attorneys also said yes to the use of torture against suspected al Qaeda operatives held by the United States on foreign soil. While it is unclear how the legal advice was implemented, the content of the memos speaks to a culture of aggressive lawyering in which attorneys acted not as sober naysayers, but as the bricklayers of the administration’s counterterror tactics — often endorsing flat-out noncompliance with international treaties and federal statutes under the auspices of national security. Guided by a determination to prevent another terrorist attack on U.S. soil, strong loyalty to the president, and in some cases an ideological disdain for international law, government attorneys sought ways to justify White House policies in the war on terror, much as a corporate lawyer might exploit loopholes in the tax code. The administration’s defenders say such steps are necessary and are not without precedent. But the approach has its critics. Roger Pilon, a constitutional scholar with the libertarian Cato Institute, says government lawyers have obligations beyond those they owe to a particular administration. “A corporate general counsel seeks ways to advance interests of a corporation within parameters set by the law,” Pilon says. “[For a government lawyer,] the client is not simply the Justice Department or the administration more generally or the government most generally, but the nation itself and the law under which the nation lives.” UNBOUND The March 2003 report on interrogation tactics, written by Pentagon lawyers, became public in The Wall Street Journal on June 7, and the first 56 pages are now posted on the Internet. The report’s conclusion that government agents interrogating al Qaeda suspects are not bound by international prohibitions on torture was based largely on legal opinions issued by the Justice Department’s Office of Legal Counsel, including an August 2002 OLC memo detailed in The Washington Post. At a June 8 hearing before the Senate Judiciary Committee, Sen. Edward Kennedy (D-Mass.) accused the Justice Department of setting a tone that led to the abuse of detainees at Abu Ghraib prison in Iraq. “We know when we have these kinds of orders what happens. We get the stress test. We get the use of dogs. We get the forced nakedness,” Kennedy said as he held up now-famous photographs of prisoners taken at Abu Ghraib. Bush administration supporters say the rhetoric is overblown. “I don’t think legal opinions have ever caused anyone any injury,” says White & Case partner George Terwilliger, who served as deputy attorney general in the first Bush administration. “People should take a deep breath and draw a distinction between finding out what the law allows and implementing a policy.” Still, within the executive branch, what the OLC says does matter. Indeed, the Office of Legal Counsel often has the last word on gray areas of the law. D.C. lawyer Bruce Fein, who spent 11 years in the Justice Department during the Nixon, Ford, and Reagan administrations, calls the apparent involvement of the OLC in mapping out defenses to the legal prohibitions on torture “unprecedented.” “OLC is supposed to be a check on overzealousness,” says Fein. “The reason why you have OLC is to say, ‘Here we draw the line.’ “ According to The Washington Post, the August 2002 Justice Department memo was signed by former OLC chief Jay Bybee, who is now a judge on the U.S. Court of Appeals for the 9th Circuit. Current OLC chief Jack Goldsmith, who took over in May 2003, was an adviser to Defense Department General Counsel William Haynes II on foreign policy issues at the time that the Defense Department memo was drafted. Goldsmith, a former law professor at the University of Chicago, is known for his contention that the United States need not follow customary international law. Goldsmith did not respond to requests for comment. Elisa Massimino, director of the D.C. office of Human Rights First, says the Defense Department memo authorizing torture “reads like a lawyer trying to get his client off.” ” ‘Can you beat the rap?’ That’s what this memo is about,” she says. “ The lawyers are saying, ‘Let me find a way for you to dance along the edge of this cliff.’ “ STORM CENTER The OLC memo on torture made public last week is part of a series of decisions that laid the legal foundation for U.S. officials to circumvent many international and domestic laws in the fight against terrorism. In November 2001, DOJ lawyers drafted a presidential order authorizing trials of alleged al Qaeda members before military tribunals rather than regularly constituted courts, as required by the Geneva Conventions. In January 2002, the OLC concluded that laws of armed conflict regulating the treatment of civilians and prisoners of war, including the four Geneva Conventions and the federal War Crimes Act, do not apply to al Qaeda and Taliban fighters. In June 2002, administration lawyers consented to the detention and interrogation of U.S. citizen Jose Padilla as an enemy combatant and allowed him to be held for nearly two years without access to a lawyer. In each case, the administration’s legal position relies on the constitutional authority of the president as commander in chief to overcome competing legal requirements. The March 2003 Pentagon memo on torture states, “In order to respect the President’s inherent constitutional authority to manage a military campaign [the prohibition against torture] must be construed as inapplicable to interrogations pursuant to his Commander-in-Chief authority.” Jones Day partner Michael Carvin, who served as a Justice Department official during the first Bush administration, says the current OLC posture is consistent with the office’s holdings in earlier conflicts. “There have been many instances OLC has opined that laws restricting the president impermissibly infringe on his powers,” Carvin says. “During World War II, the commander in chief ordered bombing which killed many thousands of civilians. I don’t think anyone thought in Dresden or Hiroshima that the application of some domestic statute or treaty was appropriate in those circumstances.” He asks, “Would critics rather that the Defense Department act without legal guidance on these issues?” But Randolph Moss, who served as the head of the OLC during the Clinton administration, says that lawyers must be careful not to hold the president above the law on national security matters. “There is a risk of always falling back on the platitude that the president’s authority as commander in chief can trump any dictate,” says Moss, now a partner in the D.C. office of Wilmer Cutler Pickering Hale and Dorr. “If one takes that too far, it essentially means there are no limits on the president’s power.” Since revelations of the abuse at Abu Ghraib, new details about the role of Justice and Defense Department lawyers in setting the framework for interrogations continue to emerge. For instance, last week the Los Angeles Times reported that a lawyer for Defense Secretary Donald Rumsfeld authorized military intelligence officers to “take the gloves off” in their interrogation of American Taliban fighter John Walker Lindh, even after he had requested counsel. Former DOJ lawyer Jesselyn Radack says she was forced from her job in the Professional Responsibility Advisory Office after raising concerns about the government’s interrogation of Lindh. “Before 9/11, I sometimes thought people were being too risk-averse. After 9/11, it was almost an attitude that anything can be done in the name of fighting terrorism,” says Radack, who left the department in April 2002 and is represented by Fein pro bono. Justice Department spokesman Mark Corallo declined to comment on Radack’s allegations. FRONT-LINERS The accommodating role of lawyers in the Bush administration runs counter to the view held by some senior administration leaders, most notably Rumsfeld, that lawyers are bureaucrats and nit-pickers. “Reduce the number of lawyers,” states one of Rumsfeld’s famous leadership mantras. “They are like beavers — they get in the middle of the stream and dam it up.” Even Attorney General John Ashcroft all but blamed the Sept. 11 attacks on cautious lawyering that led to a wall separating law enforcement and intelligence operations. At last week’s Senate hearing, Ashcroft refused to turn over the OLC memo on torture but maintained that the White House has not directed or ordered any conduct that would violate relevant domestic or international law. Ashcroft cautioned senators not to forget the continuing threat of terrorist attacks. “The networks of terror continue their search for any opportunity to turn quiet, calm mornings into scenes of carnage and death,” he said. Since the Sept. 11 attacks, top administration lawyers have taken the responsibility to prevent future attacks to heart. In public and private remarks, they often describe themselves both as legal advisers and front-line warriors in the fight against terror. “There was a tension after 9/11, and as a country we’re still learning how to deal with it,” says one former administration lawyer who is no longer in government. “If you believe that we are at war, then you have to believe that our legal system now operates in a really, really different world. You start having a tension between things like treaties and our system of justice and what it stands for and the demands of that war.” Even so, Fein, a Republican who served in the OLC under two presidents, says he believes some of the Justice Department’s post-Sept. 11 legal advice pushes the legal envelope. “Executive branch activism is to be deplored as much as judicial activism,” Fein says. “The major problem with both is that you start out with a conclusion and then go put together the jigsaw puzzle that makes it legal instead of looking for the most persuasive answer under the law.”

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