Independence and experimentalism in the Department of Justice.

• Author: Spaulding, Norman W.
• Position: ESSAY

1. LAW REFORM THROUGH LAWLESSNESS II. THE AMBIGUITY OF INDEPENDENCE III. THE AUTHORITY OF INITIATIVE AND LEGAL EXPERIMENTALISM IV. STRUCTURAL OPTIONS A. Secrecy--Transparency B. Partisan Appointment-Removal--Nonpartisan Appointment-Removal C. Centralization--Decentralization D. Political Accountability--Professional Accountability CONCLUSION I. LAW REFORM THROUGH LAWLESSNESS

   Legal academic work in general, and legal theory in particular, have lavished attention on judges, the art of judging, and the nature of appellate adjudication. Political scientists, historians, and biographers interested in law have generally followed course, making judges and the courts upon which they sit their primary objects of study. But it is the actions of lawyers, particularly before and in the absence of trial, that has the most pervasive influence on the development of the law. Legislatures and courts intervene interstitially, and on rare occasion quite powerfully, but their pronouncements would be empty without the countless and largely confidential acts of counseling by lawyers. This occurs primarily through private lawyers advising clients about whether and how to comply with law, but also, and at least as importantly, through government lawyers in their decisions about whether and how to enforce the law as well as their advice to agencies and the President on the proper boundaries of executive branch action.

   If there was any doubt about the significance of the counseling function of lawyers, particularly government lawyers, the actions of attorneys working in the Department of Justice during the Bush Administration should dispel it. Torture, indefinite detention, extraordinary rendition, targeted killing, profiling of Arab and Muslim men, and warrantless surveillance all occurred with the ex ante approval of government lawyers. (1) Indeed, whatever the wishes of the White House, it is unlikely that lower-level officers would have complied with policies of doubtful legality without Department of Justice approval. (2) There is now litigation in the courts regarding some of these policies, but the actions and their immediate practical, social, and political consequences are in many respects irremediable through ex post litigation. (3)

   Perhaps most significantly, our understandings of the constitutional guarantees that might have prevented such lawlessness have been profoundly challenged. This was not just common lawlessness, but lawlessness cutting to foundational promises of liberal democratic governance. Not only is meaningful ex post judicial review unlikely for the Administration's most significant and controversial actions, there was little or no favorable case law ex ante, legislative endorsement was missing, international treaty obligations were brushed aside, domestic positive law was violated, core constitutional rights protecting civil liberties were infringed, and fundamental principles of separation of powers designed to restrain the executive were upended. (4) The claims of executive supremacy were particularly staggering in their breadth. John Yoo's September 25, 2001, memorandum asserted "that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001." (5) No statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." (6) The President, charged with taking care to faithfully execute the laws, (7) is thus made a law unto himself by his lawyers.

   A later court may ratify new understandings of civil liberties and executive power or attempt to revise them. Future events may confirm their wisdom, tempt us to extend the practices they justified, or provoke a retrenchment. Disquieting political responses are, in any event, already emerging. Even as those of us who found the lawlessness endorsed by the Bush Administration lawyers chillingly undemocratic celebrate the ascendancy of a new administration and its promises of constitutional fidelity and reform, we must take cognizance of more immediate and far less reassuring legislative responses. Congress reacted to the evidence of torture and indefinite detention of enemy combatants by passing the Military Commissions Act. (8) Whatever else may be said about the merits of this law, it provides legislative endorsement of (9) (and immunity for (10)) a substantial part of the work product of the Bush Administration lawyers. Moreover, neither the new Congress nor the Obama Administration has sought to repeal the most constitutionally suspect provisions of the statute.

   It is tempting to blink at Congress's endorsement of the work of the Department of Justice lawyers. And once having blinked, it is easy, a little too easy, to condemn the opinions these lawyers wrote as the product of moral bankruptcy and a professional ideology that encourages lawyers to be willing to do anything for their clients. The villains are easily identifiable (morally corrupt lawyers and equally corrupt standards of law practice), and we can rest secure in the belief that a change of person and party in the White House will rectify matters and eliminate the constitutional threat in the Department of Justice by appointing lawyers of character and integrity. (11)

   The alternative account--that lawyers working in the Department of Justice were motivated by sincere intellectual (and moral) affinity with the views of top Bush Administration officials regarding executive supremacy, and that, like the officials they served, these lawyers saw their time in office, particularly after the attacks on September 11, 2001, as an opportunity to vindicate these theories in practice--raises far more complex and troubling questions. Most pressingly, it suggests that law reform, even the reform of fundamental law, can and does occur through lawlessness. Indeed, if the alternative account is true (I have elsewhere argued for its veracity (12)), this is precisely what the lawyers in the Bush Administration attempted and at least partially succeeded in doing.

   The long-term constitutional ramifications are too uncertain to define, but the passage and continued vitality of the Military Commissions Act is proof enough of tangible political and legal success. In cultural terms, the effect has been to blur popular understandings of the legal definition of torture, to divide public opinion on its moral and constitutional legitimacy, and to separate public debate from fairly unequivocal expert opinion on its ineffectiveness. (13) A similar case could be made with respect to the policies of profiling, indefinite detention, warrantless surveillance, targeted killings, and perhaps most importantly, with respect to the underlying theory of executive supremacy from which these policies sprang. What previously was, or at least in principle seemed, constitutionally unthinkable, is done, debated, and then normalized. (14) This is the negative pregnant in Justice Robert Jackson's assurance that, even during crises in national security, "the common sense of the American people will preserve us from all extremes which would destroy our heritage." (15) New extremes may make for new understandings of what is constitutionally tolerable.

   In what follows, I argue that the President's authority of initiative--the power to take actions that have the effect of redefining the legal framework in which those actions will be assessed--has gradually expanded with the support of government lawyers appointed in no small measure because of their ideological affinity with the officials they serve. I begin by briefly describing ambiguity in the way the norm of professional independence is articulated. (Part II.) This ambiguity obscures a powerful underlying structure of political accountability that invites ideologically charged advice to the President. I then survey two critical historical moments in the expansion of presidential power (Jackson's war on the Second Bank of the United States and Roosevelt's New Deal) to indicate how that structure has operated in the past and to reveal its relationship to law reform through lawlessness--a practice that came to full fruition in the counterterrorism policy of the second Bush Administration. (Part III.) I close by suggesting possible reforms to enhance the professional independence of lawyers who advise the President. (Part IV.) A premise common to each possible reform, but discussed in some detail in relation to congressional authority to insulate certain government lawyers from removal, is that the Take Care Clause cannot be read exclusively for what it empowers a President to do. The Clause bespeaks limitation, not merely license, particularly in areas such as national security where secrecy prevents judicial review and accountability to Congress and the electorate from operating. I seek less to endorse any single reform than to show that a number of structural reforms are constitutionally viable and that Congress's persistent acquiescence in the existing structure is a measure of how entrenched the authority of initiative has become. We may desire law reform through lawlessness more than we are willing to admit.

2. THE AMBIGUITY OF INDEPENDENCE

   Even if our traditions of civil disobedience and popular constitutionalism invite and occasionally celebrate lawlessness aimed at law reform, and even if we tolerate the participation of lawyers counseling certain kinds of resistance to law in private practice (a controversial question I address elsewhere (16)), it is not at all clear that we should tolerate it in government practice. We are accustomed to thinking of private counsel as at least open to, if not dominated by, the temptation to press law to...