Independence and Experimentalism in the Department of Justice
Spaulding, Norman W., Stanford Law Review
I. LAW REFORM THROUGH LAWLESSNESS II. THE AMBIGUITY OF INDEPENDENCE III. THE AUTHORITY OF INITIATIVE AND LEGAL EXPERIMENTALISM IV. STRUCTURAL OPTIONS A. Secrecy--Transparency B. Partisan Appointment-Removal--Nonpartisan Appointment-Removal C. Centralization--Decentralization D. Political Accountability--Professional Accountability CONCLUSION
I. LAW REFORM THROUGH LAWLESSNESS
Legal academic work in general, and legal theory in particular, have lavished attention on judges, the art of judging, and the nature of appellate adjudication. Political scientists, historians, and biographers interested in law have generally followed course, making judges and the courts upon which they sit their primary objects of study. But it is the actions of lawyers, particularly before and in the absence of trial, that has the most pervasive influence on the development of the law. Legislatures and courts intervene interstitially, and on rare occasion quite powerfully, but their pronouncements would be empty without the countless and largely confidential acts of counseling by lawyers. This occurs primarily through private lawyers advising clients about whether and how to comply with law, but also, and at least as importantly, through government lawyers in their decisions about whether and how to enforce the law as well as their advice to agencies and the President on the proper boundaries of executive branch action.
If there was any doubt about the significance of the counseling function of lawyers, particularly government lawyers, the actions of attorneys working in the Department of Justice during the Bush Administration should dispel it. Torture, indefinite detention, extraordinary rendition, targeted killing, profiling of Arab and Muslim men, and warrantless surveillance all occurred with the ex ante approval of government lawyers. (1) Indeed, whatever the wishes of the White House, it is unlikely that lower-level officers would have complied with policies of doubtful legality without Department of Justice approval. (2) There is now litigation in the courts regarding some of these policies, but the actions and their immediate practical, social, and political consequences are in many respects irremediable through ex post litigation. (3)
Perhaps most significantly, our understandings of the constitutional guarantees that might have prevented such lawlessness have been profoundly challenged. This was not just common lawlessness, but lawlessness cutting to foundational promises of liberal democratic governance. Not only is meaningful ex post judicial review unlikely for the Administration's most significant and controversial actions, there was little or no favorable case law ex ante, legislative endorsement was missing, international treaty obligations were brushed aside, domestic positive law was violated, core constitutional rights protecting civil liberties were infringed, and fundamental principles of separation of powers designed to restrain the executive were upended. (4) The claims of executive supremacy were particularly staggering in their breadth. John Yoo's September 25, 2001, memorandum asserted "that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001." (5) No statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." (6) The President, charged with taking care to faithfully execute the laws, (7) is thus made a law unto himself by his lawyers.
A later court may ratify new understandings of civil liberties and executive power or attempt to revise them. Future events may confirm their wisdom, tempt us to extend the practices they justified, or provoke a retrenchment. …