06 July 2004

When in Doubt, Change the Question

In today's Los Angeles Times (registration required), Professor John Yoo states the following:

First, there is a clear and necessary difference between law and policy. The memo did not advocate or recommend torture; indeed, it did not discuss the pros and cons of any interrogation tactic. Rather, the memo sought to answer a discrete question: What is the meaning of "torture" under the federal criminal laws? What the law permits and what policymakers chose to do are entirely different things.

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However valid those considerations, they simply do not rest within the province of the lawyer who must make sure the government understands what the law permits before it decides what it should do.

"A Crucial Look at Torture Law" (06 Jul 04) (emphasis added).

This is merely another version of Dienst ist Dienst ("orders are orders"). First of all, it is founded upon an invalid distinction. There is no "clear and necessary difference between law and policy"—unless, that is, one defines "policy" to mean the actions taken in implementing a decision only. Needless to say (but I'll say it anyway), this is not at all what most government officers understand "policy" to mean. Even if there is a distinction, failure to discuss a clear and necessary policy implication of a particular legal analysis at best borders on malpractice, for a very simple reason: There is no such thing as a "pure question of law." All legal analysis comes from a particular factual context. The memoranda in question try their damndest to include contextual issues only when they are inflammatory and might tend to justify the preconceived notions of the memo writers. That's all well and good in a final announcement of policy; not so in a document that is supposed to guide the actual decisionmaker to a decision.

Further, the disclaimer in the last paragraph grievously misstates a lawyer's role. Although the final decision belongs to the client, a lawyer is obligated to bring all necessary information and rules to the client's attention so that the client can make an informed decision. Consider this situation (sadly, from a real set of events, but I've sanitized the hell out of it):

Decisionmaker A needs to determine whether to grant planning permission to build a new power plant. A is the spouse of recently deceased Decisionmaker A'. While A' had extensive experience in and knowledge of land-use planning, including environmental considerations, A does not. A is filling the term until the next regularly scheduled election, which is too far in the future to make deferring this decision an acceptable option.

A requests a legal opinion from Lawyer B on the legality of granting permission to build the plant. B provides a thirty-page memo that outlines the legal process involved in permissions, including references to EPA regulations so extensive that even her eyes glaze over when reading the memo. However, the memo never discusses the particular factual context of this application, particularly including both the environmental impact statement and the downstream riparian rights that might be affected by effluents from the proposed power plant. Nonetheless, it's an impressive-looking memo. After struggling through the memo, A decides to grant permission.

Naturally enough, environmental organization C sues A for nonfeasance. A defends that he was relying upon B's advice. Does A have a valid defense? Has B provided adequate legal advice to A?

To put it even more baldly, decisionmakers don't want, don't need, and can't understand law review articles masquerading as memos upon which they're supposed to rely in making decisions. A lawyer who thinks otherwise has no business advising the decisionmakers. A scholarly approach is all well and good, and is all too often missing from government deliberations; but pretending that there is no there there is, as noted above, malpractice at best.

Instead of actually trying to answer the concerns raised in opposition to the content of the memo, though, Professor Yoo tries to change the question. He then proceeds to answer the question he'd rather answer, while dismissing the question asked with a rhetorical device that bears no examination at all. Unfortunately, one doesn't get to cross-examine opinion columnists; and, even if one did, the oath to tell the truth, the whole truth, and nothing but the truth is so alien to opinion columns (and all too often to opinion columnists) that such examination would be meaningless.