Ethics

My reading list is getting longer!  At the New Republic book reviews website, Eric Posner has a review of a new book by Benjamin Kleinerman, The Discretionary President:  The Promise and Peril of Executive Power.  Kleinerman argues that the President has extra-constitutional (that is, extra-legal) power to violate the law during emergencies.  If the emergency is perceived as genuine and severe by the public, the President's decision will be ratified after the fact, but if the President overstepped his political (not legal) authority, he is subject to impeachment.  This combination of (1) the distinction between legal and political authority, and (2) the power of the electorate to impeach (and I would add, simply to vote against) the President, is what prevents the President's extra-constitutional power from becoming dictatorial or monarchical.  Thus, when Lincoln issued the Emancipation Proclamation, his extra-constitutional act was legitimated by its ex post acceptance by the public. 

This book is important to those of us who think about the legal ethics issues involved in advising officials in the executve branch of government.  As I have been arguing, there was a dangerous tendency within the Bush Justice Department (and maybe this is common to all executive branch lawyers during times of perceived national emergencies) to conflate the scope of lawful power with "that which is necessary to protect American lives."  While of course I concede that protecting citizens is one of the essential roles of government, I also think it is important to resist the inference that anything that effectively protects citizens is, for that reason, lawful. 

Center-left legal critics of the Bush administration, including well known commentators like David Luban, Scott Horton, and Marty Lederman, face what I would call the "Jackson problem."  The Jackson problem is posed effectively by Jack Goldsmith in his book, The Terror Presidency, and it is basically this:  If we criticize John Yoo and Jay Bybee for distorting and manipulating the law to purportedly authorize conduct like torture, extraordinary rendition, indefinite detention, and warrantless wiretapping, then what do we think about Attorney General Robert Jackson's legal advice to FDR, permitting the transfer of destroyers to Britain, in violation of then-existing neutrality laws?  Goldsmith, who wants to distinguish Yoo's advice from Jackson's, has a set of procedural criteria for legitimate extra-legal action.  He notes that FDR went to the American public to educate them about the importance of the transaction, consulted widely with Congress (including with political opponents in Congress), and sought a narrowly tailored power that would not create a precedent for future extra-legal action.  (Terror Presidency, pp. 198-99.)  He contrasts the Bush administration's go-it-alone approach, its lack of concern with public credibility, and its "open chest-thumping about the importance of maintaining and expanding executive power" (p. 210). 

But does Goldsmith claim that the destroyers deal was lawful?  I'm not certain, but I think maybe not.  He writes:  "Because the law is not always designed for or up to the task of the crisis, successful leadership sometimes requires bending or breaking the law" (p. 203).  If that's his position, I agree with it.  FDR's decision may have been politically legitimate, but that does not make it legal.  Although he doesn't make this explicit, Goldsmith's position would seem to entail that Jackson acted unethically by providing the advice that the destroyer deal was legal.  Kleinerman's book seems to be saying something similar, which makes it worth checking out.  More generally for legal ethics, it is worth taking seriously the idea that one's clients in the executive branch may have permissions and even obligations to act extra-legally, but that one's duty as a lawyer is still to give advice with reference to the law.