There is a fantastic op-ed in the NYTimes this morning from two very well respected lawyers — one a former Attorney General, and the other with a similarly storied history of public service and currently working with the Brennan Center. The timing on it is even more fascinating. From the op-ed:
…When the Justice Department, usually acting through its Office of Legal Counsel, issues legal opinions binding on the executive branch, there is never justification for keeping them secret. Opinions that narrowly define what constitutes torture; or open the door to sending prisoners for questioning to Egypt and Syria, which regularly use torture; or rule the president has some “inherent power” to ignore laws are all of concern to Congress and the public whether one agrees or disagrees with the legal analysis.
Yet all these opinions have been kept secret, along with many other, related post-9/11 opinions that purport to decide what America’s law is.
Secrecy always increases the risk of foolish mistakes. If the withheld opinions are sound, why fear letting them see the light of day? Is there ever a justification in a government of law for keeping what one believes to be the law secret?
Some may say releasing the opinions will lead to more embarrassment. To this, there are two answers. First, what is most important is that we get it right and remain true to our country’s values. Second, the best way to restore our reputation is to confront our mistakes openly and then resolve not to repeat them.
David Luban, writing at Bakinization the other day, went further on this with regard to the ethical obligations of the OLC lawyers:
…But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.” Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say “no.” But lawyers who say yes to whatever the client wants (“Dr. Yes” was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere, lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.
As hired counsel, your job is certainly to try to find a way for your clients to achieve their objectives, but also to anticipate pitfalls before they occur and to find a way around them. If that is not possible, you tell your client straight out that the proposed action is contrary to the law and not recommended. To allow your client to act in an illegal or otherwise problematic way without a clear, unambiguous warning is contrary to your ethical and professional obligations as a lawyer.
And if that is what has been going on at the OLC throughout the Bush Administration, the public has a right to know about it. Because, after all, we are paying the salaries of these lawyers with our tax dollars. I suspect, with the timing of the op-ed on the day before the Federal Bar Council luncheon in NYC, that is a conversation that a whole lot of very powerful lawyers will be having around lunchtime tomorrow.
If any of our readers will be attending the luncheon, do let us know if the subject comes up. I’m sensing a nudge here from some very well respected lawyers…and I’d love to know what sort of fruit it bears.
(Photo via stephenccwu.)
UPDATE: As scribe says, “This is The Establishment talking, and putting its foot down.”