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Suppose you’re the White House counsel, and the president asks you to explain the legal limits on the treatment of detainees in Afghanistan and Iraq. You get the impression that the president (like anyone else consulting a lawyer) would like to hear that his legal authority is extremely broad. And you know that no police officers will swoop down on the president if, following your advice, he treads upon or crosses a legal boundary. So it would be fairly easy to tell him what he wants to hear. As a government lawyer, what do you do? Do you develop a smart legal rationale supporting the president’s policies? Or do you try to separate your legal analysis from his wishes? TORTURE MEMOS Alberto Gonzales’ recent confirmation as attorney general brought these questions into focus. As White House counsel, Gonzales provided President George W. Bush with a memo concluding that Taliban fighters were not protected under the Geneva Conventions. Gonzales himself was sent a 2001 Justice Department memo concluding that there were effectively “no limits” on the president’s authority to wage war, as well as an August 2002 memo narrowly defining torture. Citing these memos, opponents of Gonzales’ confirmation accused him of excessive loyalty to the president. These critics believed that Gonzales had simply provided Bush with the legal opinions Bush wanted. They also said that Gonzales’ legal advice (or lack of it) had paved the way for the abuses that occurred at Guant�namo Bay and in Abu Ghraib. The critics were probably right to identify loyalty as a driving force behind Gonzales’ conduct. Responding to public criticism, in December 2004 the Justice Department repudiated the August 2002 memo’s narrow definition of torture. Apparently, once the policy was no longer politically tenable, the legal analysis was no longer correct. And Gonzales did not stand firmly behind the discarded legal rationale in his confirmation hearings. Instead, he said he could not recall the details of his involvement in the production of the August 2002 memo. He also could not remember whether he had voiced any disagreements. Perhaps Gonzales could not remember whether he voiced disagreements because he did not see disagreeing as his job. Indeed, Bush recently answered a question about Gonzales’ Senate testimony about torture by saying that “Al Gonzales reflects our policy.” So it’s easy to imagine that Gonzales was asked to craft or solicit the most plausible legal rationales for the policies that the government intended, no matter what, to implement. MISPLACED ALLEGIANCE There are different ways to understand the charge that Gonzales was overly loyal to the president. On one view, his failing was in misplacing his allegiance. Indeed, many authorities agree that a government lawyer’s client is the relevant government agency or entity, not any particular person. According to the comments to the American Bar Association’s Model Rules of Professional Conduct, “Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole.” (Recognizing the complexity of this issue, however, the Model Rules specifically decline to offer a precise definition of the government lawyer’s client.) Other authorities, including the Federal Bar Association and the U.S. Court of Appeals for the D.C. Circuit — in a 1998 opinion addressing the attorney-client privilege between Deputy White House Counsel Bruce Lindsey and President Bill Clinton — have suggested that government lawyers owe some measure of allegiance to the public interest, in addition to their agency clients. As the D.C. Circuit put it, “Unlike a private practitioner, the loyalties of a government lawyer � cannot and must not lie solely with his or her client agency.” A government lawyer’s primary obligations therefore run to entities rather than to individuals. But entities don’t talk; they have representatives. Who speaks for the executive branch, if not the president? And who acts on behalf of the public, if not its elected leaders? Similarly, lawyers cannot counsel entities; they counsel the people who act on behalf of those entities. So acknowledging that the president isn’t technically the White House counsel’s client — or at least not his primary one — doesn’t amount to a powerful criticism of Gonzales. Nor does it easily translate into practical advice for other government lawyers. EXCESSIVE ADVOCACY On another view, Gonzales’ failing was not in misplacing his allegiance but rather in engaging in the wrong kind of lawyering: too much advocacy and not enough counsel. In private practice, excessive advocacy might seem a rather bizarre charge. Lawyers often make legal arguments favorable to their clients (within certain boundaries), even when they believe that a good judge would reject those arguments. In our legal system, bad arguments are supposed to be identified by the adversary and rejected by the judge. Given the legal system’s emphasis on advocacy, some might find it difficult to blame lawyers, such as Gonzales, for justifying the government’s desire to use harsh interrogation tactics. Gonzales’ defenders might believe that the role of a “zealous advocate” in such situations is to craft smart, rhetorically powerful arguments in favor of the client’s position. But lawyers are supposed to be advisers and not merely advocates. According to the ABA’s Model Rules, lawyers should provide “independent professional judgment” and “candid advice,” including advice about “moral, economic, social and political factors” relevant to the client’s situation. In the case of government lawyers providing advice to policy-makers, the counseling model of lawyering is clearly better than the advocacy model. In other words, Gonzales’ critics were right to conclude that he was too loyal, if by that they meant that he was too much of an advocate. Several aspects of the government lawyer’s job distinguish it from settings where advocacy is ideal. LONE VOICES For starters, a government lawyer’s zealous advocacy is not necessarily counterbalanced by an adversary. Indeed, the government has attempted to limit adversarialism in the torture debate by refusing legal counsel to persons labeled “enemy combatants.” Further, political and legal realities can, as a practical matter, shield policy-makers from penalties. No American policy-maker currently faces legal sanctions relating to U.S. treatment of prisoners. The American Civil Liberties Union and Human Rights First recently filed a civil suit against Secretary of Defense Donald Rumsfeld, but this hardly means that the secretary faces imminent punishment. So far, only low-level soldiers far removed from policy making have faced serious consequences for the Abu Ghraib scandal. Because they rarely face legal consequences for possibly illegal conduct, policy-makers can be tempted to respond to constituencies whose immediate demands — like the demand for intelligence from prisoners — might be more easily met by breaking or bending the law. Government lawyers may likewise be shielded from penalties — although the torture memos have been repudiated, the Bush administration certainly won’t be suing the authors for malpractice — but they are also removed from policy making and its constituencies. This removal makes them uniquely situated to remind policy-makers of a law’s purpose or to identify policies that, while technically legal, might encourage illegal conduct. Sen. Lindsey Graham, R-S.C., who grilled Gonzales during his confirmation hearings, recently warned that when “you look at ways around the spirit of the law . . . you’re losing the moral high ground.” Realizing this, a lawyer asked to identify torture’s legal boundaries might feel obliged to explain the pitfalls of nearing these boundaries, even if her client does not intend to cross them. Further, a government lawyer who refuses to be a moral and legal compass risks becoming a rubber stamp. Because policy makers are unlikely to face criminal or civil sanction, they tend to focus on the political consequences of their decisions. Policy-makers are safer politically when they can defend their positions as the mere products of legal advice, even if that advice was preordained by the policy-makers themselves. This is simply not the case in the private context. We might feel sorry for those who follow bad legal advice, but that sympathy doesn’t shield private clients from legal sanction. Bad or controversial legal advice, however, can shield politicians from public scorn, which is often the only sanction they could ever face. TO TALK AND TO LISTEN Without a truly adversarial system, a realistic threat of legal sanction, or a public well-informed on domestic and international definitions of torture, an independent counselor — as opposed to a mere advocate — might be the only real check on a policy-maker’s desire to skirt or break the law. This check requires two things. First, government lawyers must believe it their duty to inform policy-makers, as well as to serve them. Because policy-makers often lack incentives to respect the rule of law, this is where the government lawyer’s obligation to counsel is most acute. This is where Gonzales failed. Second, the policy-makers or the public must want government lawyers to be counselors and not just advocates. Ironically, lawyers seeking to provide truly independent counsel cannot go it alone. LEARNED PUPPETS The recent experiences of military lawyers from the Judge Advocate General’s Corps prove this point. Before news of the prisoner abuse scandal broke, JAG officers repeatedly complained to Pentagon officials about the removal of safeguards on the treatment of prisoners at Guant�namo Bay. For example, interrogations were routinely conducted without JAG oversight and with unprecedented participation of civilian contractors, who are not bound by the military’s rules of conduct. Believing that the Pentagon had ignored their objections, some JAG officers arranged an off-the-record meeting in the spring of 2003 with Scott Horton, chairman of the Association of the Bar of the City of New York’s International Human Rights Committee. They reportedly told Horton that they were reluctant to speak publicly, fearing reprisal from the government. The JAG officers’ experience is the exact opposite of Gonzales’. Whereas Gonzales’ fidelity to White House policy did not derail his bid to become attorney general, the JAG officers’ infidelity to Pentagon policy has (in their view) jeopardized their careers. Unless the public, government officials, and lawyers challenge these experiences, they will send a message more powerful than anything that could be written in a legal ethics guide: When it comes to torture, government lawyers should be zealous, learned puppets, and nothing more. Clearly, this message endorses the advocacy model of lawyering at the expense of the counseling model. This endorsement is not inconsequential. It risks eroding the rule of law, including prohibitions against torture. And it leaves legal whistleblowers, like the JAG lawyers who tried to halt prisoner abuses, hanging out to dry. Matthew Segal is an associate in the D.C. office of Goodwin Procter. The opinions expressed here are his own. This commentary originally appeared in Recorder affiliate Legal Times.

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