John W. Dean

Q & A Session on Bad Advice: Bush's Lawyers In The War On Terror

By JOHN W. DEAN
Friday, May 1, 2009

Harold Bruff is a former U.S. Department of Justice Office of Legal Counsel (OLC) attorney; currently, he is a professor of law (and former Dean) at the University of Colorado (Boulder) Law School. In his new book, Bad Advice: Bush's Lawyers In The War On Terror, Bruff has taken a critical look at the legal advice provided to President Bush and Vice President Cheney to deal with their "war on terror." His findings, as reported in the book, are not pretty. (I discovered Professor Bruff's book when browsing the University of Kansas Press catalogue. The Press is the future publisher of a work-in-progress that I am co-authoring with a young historian about the Watergate cover-up trial.)

Part I of Bad Advice examines the role of lawyers who are advising presidents. This material is timeless. Part II looks at the post-9/11 legal advice Bush was given regarding dealing with terrorists and terrorism. In particular, it addresses advice on matters such as the legality of warrantless surveillance by the National Security Agency, the indefinite detention of enemy combatants, evading the Geneva Conventions, conducting military (not civilian) trials of detainees, and employing aggressive interrogation techniques. This material could not be timelier.

Given Harold Bruff's considerable experience and professional credentials, not to mention the objectivity and candor of his analysis, his findings are disquieting to say the least. Rather than review his book, however, I thought it might be more interesting to seek answers from him to a few of the questions that had occurred to me when I was reading the book. The University of Kansas Press arranged for me to contact Professor Bruff, and our exchange went as follows:

QUESTION: At the outset of your book, after noting its timeless nature of problems in advising the powerful, you raise the question regarding what behaviors – and you use the plural – should be expected, if not demanded, of lawyers serving an "insistent" client, and in the context of your study, a client who is a head of state?

ANSWER: The most important behavior is adherence to the simple ethical rule that governs all American lawyers. They must "exercise independent professional judgment and render candid advice" to the client. Important and insistent clients, such as Presidents, may put heavy pressure on their lawyers to provide advice that serves policy goals, whatever the law might be. Accordingly, the lawyer really has two quite difficult tasks. First, he or she must have the courage, and the detachment from policy agendas, to say what the law requires, even if that advice is unwelcome. Second, the lawyer needs to have the skill to persuade a powerful client that this advice should be received and considered, even if the client is under no obligation to seek or follow the lawyer's advice.

QUESTION: Let's turn to Part II of your book, where you address the "bad advice" Bush received from his lawyers. Appropriately, much of your attention focuses on the post-9/11 "War Council," which was made up of White House Counsel Alberto Gonzales and his deputy Tim Flanigan, Dick Cheney's counsel David Addington, Defense Department General Counsel Jim Haynes, and John Yoo from OLC. Tell me about the War Council. Was it really giving legal advice, or was it, more often, advocating? If the latter, what happened to OLC that it would join in advocacy, rather than following its long tradition of offering the most solid legal advice that might be found within the Executive Branch government? Did fear cause this, meaning did the terrorists manage to terrorize these key government lawyers, causing them to overreact? Or was it OLC pleasing the White House, giving them whatever they wanted? What do you mean by saying it gave "bad" advice? It strikes me that you could mean inadequate, if not wicked or evil – or all of them. Would you explain what you mean by bad advice?

ANSWER: The War Council's role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt throughout the administration to do anything that might prevent one. The bad advice did not result from bad or evil intentions. Instead, these were patriotic lawyers striving in good faith to help win the terror war. But they lost sight of the essential nature of the lawyer's role. Another reason the War Council became so extreme was that it short-circuited normal bureaucratic checks that subject proposed legal advice to review by senior officials, such as the Attorney General, who can be expected to display good judgment. Instead, a group of junior lawyers, headed by a White House Counsel who was new to these issues, formed advice in a hothouse environment that excluded external influences.

QUESTION: Is there a common thread that runs through the bad advice that Bush's lawyers provided him for dealing with terrorists?

ANSWER: Yes, many of the memos followed the same four-part strategy. First, they used only legal precedents relating to war and foreign policy, because those precedents support broad executive power, although the terror war has domestic aspects as well. Second, they read constitutional provisions that empower the President extremely broadly, and provisions that might constrain him very narrowly. Third, they used the same approach to statutes, reading those authorizing executive action very broadly and those constraining the executive very narrowly. And fourth, they invoked legal canons of construction in ways that supported the preceding two parts of the strategy. The overall effect was to claim almost unlimited executive power, and to minimize the potential role of the other two constitutional branches of government.

QUESTION: As you note in the book, the envelope was pushed – and then pushed some more – regarding warrantless electronic surveillance after 9/11 with the Bush Administration all but ignoring the Foreign Intelligence Surveillance Act. In this situation, however, the bad advice that the government lawyers were giving was accepted by several legal departments of telecommunications companies, who actually did the dirty work. How do you explain the willingness of non-government lawyers to join government lawyers in acting outside the law?

ANSWER: The Administration put the lawyers for the companies in a very difficult position. The companies were told that the President considered this operation vital to national security, that the reasons for this judgment were state secrets and could not be revealed, and that the program had been determined to be legal by the Administration's lawyers. Lawyers for the companies had little choice other than to accept these assertions.

QUESTION: As you know, John Yoo had written a number of law journal articles about the very subject he would find himself writing legal opinions on after 9/11 when he happened to have returned to government service. Per chance did you look at his law journal articles to see how much cut-and-pasting he did, taking material from his journal articles and inserting them into his opinions?

ANSWER: John Yoo has held his extreme theories of executive power since he was a law professor before joining OLC, and has never recanted. Comparison of his OLC memos with the position he took in his academic book, The Powers of War and Peace (which summarizes his earlier articles) and his revealingly titled memoir, War by Other Means, shows complete consistency of viewpoint. What he did not reveal to his government clients, however, is that his positions enjoy little support from other scholars, and that there is a great weight of authority against them. Within OLC, Yoo seems to have received little supervision from Jay Bybee, his nominal superior. Yoo had been working at OLC for months when Bybee arrived, and had already written some important memos. Although some memos show editing that was presumably from Bybee, John Yoo's influence remained dominant throughout his time at OLC.

QUESTION: Did you read anything in the U.S. Supreme Court's decisions dealing with the efforts of the Bush government to keep detainees out of the reach of American courts, more specifically Hamdi v. Rumsfelf, Rasul v. Bush and Rumsfeld v. Padilla, that suggested the Court was sending a message to government lawyers that they had crossed the line?

ANSWER: An early OLC memo concluded that American courts could not issue writs of habeas corpus to the base at Guantanamo, Cuba, because it was outside the jurisdiction of the federal courts. The Supreme Court rejected this position in Rasul, but the question was not an easy one and this OLC advice was a competent and balanced treatment of the issue. Hamdi rebuked the Administration for arguing that the detainees were not entitled to any process at all to determine whether they were actually enemy combatants or innocent civilians. The OLC memos never directly grappled with the question of minimal process for the detainees, and they should have done so.

QUESTION: Not all government lawyers were giving bad advice. What should – or could -- those lawyers who knew that the War Council team was giving bad advice do that they did not do? Or did they do all they could?

ANSWER: Government lawyers who knew the advice was bad resisted as best they could. Uniformed lawyers in the military were especially brave and forthright in their resistance. The War Council either excluded them or steamrolled them. It got the power to do so from the support of Vice President Cheney.

QUESTION: Of late, the bad legal advice that has been getting the most attention has been contained in newly-released OLC opinions regarding "alternative interrogation techniques" – sometimes better known as torture. These documents were released after your book was published, although you discuss the legal advice regarding interrogation at some length. Was there anything in these new memos that changed your views, by which I mean was the advice better or worse or more of the same?

ANSWER: I had some of the memos giving general legal advice about interrogation, such as the notorious "torture memo" of August, 2002. I did not have the memos giving detailed and dismaying advice about particular techniques, such as waterboarding. The general conclusions of the detail memos could be inferred, however, from what happened to the detainees. What makes these newly released memos even worse than the others is that the lawyers were clearly letting their advice be driven by techniques interrogators asked to use. There is no sign of lawyerly restraint.

QUESTION: Do you believe any of these lawyers should be prosecuted, either here or abroad, for war crimes?

ANSWER: The recently-disclosed memos suggest that the lawyers were accomplices in actions that they knew were illegal. Nevertheless, when prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future. Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. For many of the issues, there are few clear precedents to guide the lawyers. Also, the lawyers know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President's lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty.

QUESTION: Based on your detailed review of the legal advice given Bush to deal with terrorists, if you were the head of the Office of Professional Responsibility at the Department of Justice (which is, in fact, about to issue a report) what would you recommend, if anything, regarding the conduct of the lawyers involved in all this bad advice?

ANSWER: The Office is authorized to refer its recommendations to state bar associations, which have jurisdiction to impose sanctions on lawyers who fail to give candid and independent legal advice. There is a wide range of available sanctions, from reprimand to disbarment. Because of the problem of over-deterrence, the bar authorities should not take action unless serious and repeated ethical lapses are shown. Since regulation of lawyers by state bars is usually regarded as rather weak, the over-deterrence problem should be minimized. At the same time, there is a need to buttress the central obligation to provide independent legal advice against the constant pressure to say yes to anything.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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