In Defense of the Indefensible


With all respect, I think that post really is beyond the pale.  The allegation that we critics of the Yoo memos and of the United States’ descent into a torture regime have been motivated by the “pleasure” of punishing “ideological opponents,” an “indulgence” of our “fantasies” (going so far as to describe Philippe Sands as “purring” with “delight” like a cat ready to pounce), is, not to put too fine a point on it, a calumny.   It degrades and trivializes the discourse on this blog about matters of profound moral and legal significance.

Your post does prove, I suppose, that there can be no such thing as complete consensus in the legal academy, not even on the easiest questions of law and morality: It demonstrates that there are, indeed, some very smart people out there who have no sense of moral and professional outrage and incredulity about what happened here—who apparently think of this as “business as usual,”  what we should or must expect from our government in times of crisis; that it makes no sense at all to critique the work of government lawyers. Fine. I suppose exposing such insouciance has its own value: It helps to explain how evil can come to be embraced even in enlightened cultures, among the educated elite. 

Perhaps, as your tone suggests, you think we are naive to be shocked by what we’ve seen come out of OLC over the past seven years. You’re certainly entitled to make that claim, though I think it is mistaken. But please, do not impugn the sincere motives of the vast majority of us who have spent a great deal of time and energy over the past few years arguing that this is, indeed, a very big deal, and a serious breach in our constitutional culture.

You do make one important point, concerning the relative lack of legal concern in response to President Clinton’s decision to unilaterally authorize the Kosovo air campaign in 1999. It’s not that I think there is really any qualitative comparison, either morally or in terms of OLC’s legal product, between the two cases. The Yoo memo is an opinion that unselfconsciously spends several pages explaining why Congress should not be presumed to have prohibited the military, in wartime, from throwing corrosive acid on detainees, from plucking out their eyes—and then adds, to boot, several untenable arguments about why the president’s uncheckable authority to authorize such things would, in any event, preclude Congress from legislating to the contrary even in the most specific of terms. The memo was the crucial link in laying waste to a decadeslong military culture that taught strict adherence to the laws of war, the UCMJ, and our treaty obligations.

Moreover, I think the arguments in the Clinton OLC opinion, about whether the Kosovo bombing violated the War Powers Resolution, are close ones; and, in any event, whatever one thinks of its conclusions, that opinion is scrupulously candid, fair, and balanced in acknowledging the difficulty of the question and the arguments on the other side. Furthermore, the Kosovo campaign was not, of course, conducted in secret—whatever its legal faults, Clinton’s decision allowed the ordinary constitutional checks and balances to operate. (I also happen to think that, unlike our recent regime of torture and cruel treatment, the Kosovo campaign was morally justified, but, of course, others might disagree.)

Nevertheless, you are correct that there was another legal question—two, actually—about which OLC apparently did not opine with respect to Kosovo: (i) whether, prior to Congress’ possible authorization by way of appropriations, the president had the constitutional authority to unilaterally initiate the campaign without the assent of the House; and (ii) whether the president ignored his constitutional obligation to take care that the U.N. Charter was faithfully executed prior to the time the Congress (arguably) approved the campaign. I suspect, but am not certain, that the White House deliberately chose not to ask OLC these questions.   (I have no independent knowledge: I was not privy to any OLC matters related to Kosovo.) If that is correct, it would be very troubling and ought to be condemned. The State Department, on the other hand, reportedly did debate the U.N. Charter question at great length and eventually concluded, publicly, that the legal issue could be overcome. (See footnote 619 of this .)  Personally, I have serious doubts about the correctness of that conclusion. And it certainly warrants much more attention from we misty-eyed believers in the rule of law.

But the important point is this:  I f, as you suggest, you think that the two cases are roughly equivalent in terms of how badly the executive abused the rule of law, then, frankly, you should be condemning both , not neither. If I understand your posture, however, it’s that we should all just shrug our shoulders whenever the executive violates the law, no matter the stakes; no matter how egregiously wrong and outrageous the legal reasoning; no matter how secretive the program and legal rationale; no matter how many contrary voices in the executive branch were cut out of the process. 

I am willing to assume, Eric, that your radical cynicism about the law, the president’s take-care obligation, and the proper role of government lawyers, is sincere—that it is not simply your way of gleefully tweaking your “ideological opponents.” Please do not assume that the rest of us, who do not share your deep cynicism, are any less sincerely motivated.