Government Lawyers' Role in the War on Terror: Do They Have a Duty to Argue What's Right, Not Just What They Deem Legally Defensible?
And Should the "Constitutional Avoidance" Doctrine Play a Role?

By EDWARD LAZARUS

Friday, Aug. 18, 2006

Amid terrorist plots, a Middle East implosion, a nuclear North Korea, and an all-but-declared civil war in Iraq, the quotidian work of law and lawyers seems, at first blush, pretty darn inconsequential. But there are some lawyers, within the government, whose work done after 9/11, and continuing into the present, may turn out to be very significant indeed.

In general, the legal profession aims to combat violence, not abet it: After all, one of its principal aims is the non-violent settlement of disputes, through a system of shared norms and procedures that operates by way of argument, not gunfire. The law, that is, offers the alluring promise of order without violence. In this sense, lawyers form part of the fabric that holds societies together against centrifugal forces that grow ever stronger, and would tear them apart.

But however comforting this thought, those of us who have chosen this profession also have to consider the role lawyers have played - recently and in the past -- in American attempts to navigate an increasingly dangerous world, and in exacerbating the violent anti-Americanism that threatens our domestic security.

The Current Administration's Lawyers: Are They More than Just "Whores"?

Inside the Bush White House, government lawyers have been instrumental in creating and justifying policies related to the detention and torture of alleged enemy combatants that are at odds with the Geneva Conventions - policies of exceptionalism that have gone hand-in-hand with a broader American unilateralism that has infuriated friends and foes alike.

The blogosphere had offered some choice responses to Executive Branch lawyers' defense of the President's purported power, as commander-in-chief, to ignore congressional and international law limitations on the prosecution of the war on terror. These responses, taken together, amount to a fierce assault on the profession. As one prominent academic blogger, Professor Jack Balkin, responded to lawyerly justifications of torture and the like, "lawyers are whores" who will give intellectual cover to any position, no matter how wrong or unreasonable.

It is important to evaluate such charges. But it is also exceedingly difficult. Executive branch justifications for overarching claims of presidential power invoke any number of relatively arcane theories of constitutional interpretation and statutory construction. It isn't easy to find the line between arguments that are merely unpersuasive, and ones that are so misguided that they (and the lawyers who advance them) merit our scorn.

A recent series of articles in the Indiana Law Journal brings this issue into sharp focus. These articles take up the Administration's invocation of what scholars call the "constitutional avoidance" doctrine to justify a reservation of presidential power to torture or engage in warrantless wiretapping -- notwithstanding congressional statutes prohibit such activity. (That claimed reservation of power has been expressed not only in internal legal memos that have leaked, but also in Presidential signing statements regarding legislation such as the anti-torture legislation spearheaded by Senator McCain.)

What the articles suggest is that this Administration's Executive Branch's lawyers - at least, those in the Department of Justice's Office of Legal Counsel (OLC) -- have a troubling propensity to dispense with the exercise of independent judgment about the scope of presidential authority. Rather than exercise such judgment, they choose instead to deploy every available argument, however unpersuasive, in support of the Administration's predetermined view that presidential power in foreign affairs is largely unfettered.

The Constitutional Avoidance Doctrine: Why It Makes Sense When the Federal Courts Invoke It

The avoidance doctrine is a rule of statutory interpretation - or, in legal parlance, a canon of construction -- dates back 100 years and the Supreme Court has adopted as gospel. It finds its roots, in part, in Ashwander v. Tennessee Valley Authority -- in particular, in Justice Brandeis' concurrence in that case.

There, quoting the Court's earlier decision in Crowell v. Benson, Brandeis notes that "When the validity of an Act of Congress is drawn into question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."

In the judicial context, the doctrine makes lots of sense. At bottom, it is a doctrine of judicial self-restraint. When the Court is faced with two plausible interpretations, one of which raises serious constitutional doubts, the Court foregoes its power to strike down unconstitutional statutes by presuming that Congress -- which legislates in light of constitutional limitations, and whose members take oaths to uphold the Constitution -- intended the interpretation that raises no serious constitutional concerns.

Of course, if Congress actually intended the interpretation raising serious constitutional concerns it can say so through new legislation and throw the issue back up to the courts. But, either way, the canon of constitutional avoidance, when employed by courts, has the intent and effect of vindicating the choice of democratically-elected representatives, rather than the views of unelected judges - which is, in our system, a very good thing.

Why It's Different When Executive Branch Lawyers Draw on the Constitutional Avoidance Doctrine

The same benign story cannot be told, however, when the Executive Branch employs the "constitutional avoidance" doctrine to justify its actions - and, in particular, when it does so on an issue implicating the balance of power between the Executive Branch and Congress. Here, the doctrine loses two key features - its respect for Congress, and its minimization of the power of the branch invoking the doctrine.

When the Executive Branch invokes the canon in the context of separation of powers battles between Congress and the Executive, the Executive Branch does so in order to maximize its own power at the expense of Congress. In other words, the Executive Branch uses the canon to serve exactly the opposite of the canon's intended ends.

The Constitutional Avoidance Doctrine: At the Heart of the Notorious Torture Memo

This is not an abstract problem. It lies at the very heart of Executive Branch justifications for its torture and wiretapping policies.

Take the famous "torture memo" from OLC, DOJ's internal think tank.

Long before the memo was conceived, Congress implemented the international Convention Against Torture by making it a federal crime for any person "outside the United States [to] commit[] or attempt[] to commit torture." The purpose of OLC's torture memo was to find a way around this statute - a way that would recognize what OLC claimed was the President's right to order brutal interrogations that might violate the law Congress had passed.

Enter the constitutional avoidance doctrine. According to the torture memo, the Congressional law criminalizing torture should be interpreted not to apply to any interrogation of an enemy combatant carried out pursuant to the President's Commander-in-Chief power. Why? Because such an interpretation would raise a serious constitutional question about Congress's power to regulate the President's conduct of foreign affairs. And eschewing that interpretation, for another one, would avoid that serious constitutional question.

In a nutshell, the argument was this: Because the Executive Branch thinks the President can order torture in his role as Commander-in-Chief, the Congressional statute criminalizing torture has to be read not to cover the President.

This is a classic case of clever lawyers taking a well-settled doctrine, and wrenching it totally out of context for expedient purposes. In the case of the anti-torture statute, there simply is no ambiguity to resolve. The statute says plainly that it applies to any person who commits torture or attempts to commit torture outside the United States - with no exemption for the many military personnel serving overseas, when acting in the course of their employment. Surely, Congress could not possibly have overlooked all these personnel in passing the statute.

Thus, the canon of constitutional avoidance, which is triggered only when a genuine ambiguity (not, as here, a manufactured and specious one) exists, should never have come into play.

Flipping a Pro-Democracy Legal Doctrine, and Rendering It Anti-Democracy Instead

The torture memo, moreover, perfectly exemplifies how, in the hands of the Executive, the canon of constitutional avoidance can be turned from a pro-democracy tool for effectuating Congressional intent - the tool Justice Brandeis described -- into an anti-democratic tool for nullifying Congressional power in favor of Executive power.

As Professors Trevor Morrison and Jefferson Powell point out in their Indiana Law Review articles, the Executive Branch has pulled the same trick repeatedly, to justify evading congressional restrictions on how the war on terror may be fought. And, indeed, Professor Powell, one of the most trenchant constitutional law thinkers of our time, argues that the Executive Branch should never be allowed to invoke the constitutional avoidance doctrine when separation of powers concerns are implicated. In such circumstance, the temptation for the Executive to act self-servingly to further its own ends - invoking the doctrine simply to avoid a searching constitutional inquiry, one that might compel it to refrain from doing something that is plainly unconstitutional -- is just too great.

My point, however, is not so specific. The abuse of constitutional avoidance analysis exemplifies a larger problem: The problem that lawyers' often considerable skills can be harnessed to extraordinarily undemocratic and troubling ends. To be sure, it is sometimes the advocate's job to make weak arguments look strong, and vice-versa.

But government lawyers have a different calling.

They have a duty to argue what is right, not just what is convenient. Their motto is, "The government wins when justice is done" - not, "The government wins when it gets to do whatever it wants."

History tells us that terrible things sometimes come cloaked in the garb of law - and that this is a duty to be safeguarded more zealously than we have.


A former federal prosecutor, Edward Lazarus is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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