True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers

Abstract

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department's Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes. In the post-September 11 legal climate, issue entrepreneurs saw legal constraints as against American interests. The lawfare critics extolled parsimony as a virtue - advancing the lawfare construct to explain as many complex events as possible. However, the lawfare critics failed to recognize that legal constraints can also empower decisionmakers, by checking the executive's tendency to discount reputational and other long-term values. Unfortunately, existing remedies are not a good fit for the problems caused by issue entrepreneurship. Tort litigation, such as the recent suit by Jose Padilla against John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel. To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the president to take action that is inconsistent with the most accurate reading of sources of authority. However, action must be both interstitial - with a clear exit strategy - and publicly disclosed. To implement the dialogic equipoise model, the Article recommends a blended approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and OLC in document preservation. This blended regime can reinforce deliberation when exigencies obscure the teachings of prudence.