Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by the Justice Department's Office of Legal Counsel ("OLC") and the destruction of CIA interrogation tapes.
Unfortunately, this elevation of ideology over context has failed to yield adequate remedies. Tort litigation, exemplified by Jose Padilla's recent lawsuit against former OLC attorney 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 consistent with the most accurate reading of sources of authority. Action, however, must be both interstitial-with a clear exit strategy and publicly disclosed. To implement the dialogic equipoise model, this Article recommends an integrated 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 the OLC in document preservation. This blended regime can counter ideology's corrosive influence on legal deliberation about war, peace, and national security.
Peter Margulies, True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers, 68 Md. L. Rev. 1, 88 (2008)
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