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Thank Yoo and Judge (Mostly Getting a Free Pass) Bybee

By Jack M. Balkin

Thank them for what? For effectively bringing home three essential lessons about the rule of law:

Lesson One: There is a large and critical difference between purely instrumental legal analysis designed to produce a desired result versus an even-handed effort to discern what the law requires. The former seeks to achieve an objective (shaping the legal analysis accordingly), whereas the latter attempts to figure out what the law is. The former is an exercise in advocacy and strategic reasoning, the latter in knowing or understanding.

The difference between these two orientations can be illustrated in a familiar scenario: A partner asks an associate to write a memo that summarizes the state of the law on a particular issue as it bears on the client's situation; after receiving the memo, which concludes that the law is probably not favorable to the client?s position, the partner then asks the associate to produce the best set of legal arguments or strategies to advance the client?s interests. An associate who cannot tell the difference between these two assignments will not be long on the job. As this example suggests, instrumental legal argumentation is usually parasitic upon a prior determination of what the law is (however uncertain that might be on a given question): A lawyer must have a sense of the latter to engage in effective strategic argumentation.

After news about the torture memo first broke, a few commentators blurred this distinction. Harvard Professor Charles Fried did so when defending the memo by asserting that ?there?s is nothing wrong with exploring any topic to find out what the legal requirements are.? Fried?s error was not in his statement, which is correct, but in his suggestion that Bybee?s and Yoo?s memo involved such an exploration, when it was instead an obvious example of instrumental legal analysis.

Even when a legal opinion is presented in the guise of an even-handed exploration of the law, the fact that it is the product of purely instrumental legal analysis is not erased. It is sometimes difficult to tell the difference, to be sure. In this case, however, its patently weak legal argument and the circumstances surrounding its production make plain the instrumental orientation that gave rise to it. The purpose of the memo was to reassure and immunize (give legal cover to) interrogators engaging in extreme conduct, a purpose that was largely achieved by the very writing of the memo irrespective of its legal soundness.

We have Bybee and Yoo to thank for reminding us of the importance of the distinction between instrumental legal analysis and an even-handed exploration of the law, a crucial distinction that is easily obscured in the instrumentalism that permeates lawyering.

Lesson Two: While a consummately instrumental approach to legal analysis is appropriate for lawyers in many contexts, in certain positions it is wrong. Lawyers holding government positions that entail a special duty to uphold and apply the law?like lawyers in the OLC, and lawyers in the Justice Department generally?breach their obligations when they engage in purely instrumental analysis. This is no small wrong. Power is accorded to the people that occupy these positions precisely on the condition that their legal decisions?which carry weighty official legal consequences?are not purely instrumental.

We have Bybee and Yoo to thank for prompting a collective reaffirmation of the special responsibilities that attach to lawyers in such positions. For at least a generation, no future lawyer in the OLC (and perhaps the Department of Justice as a whole) will be unaware of the broad condemnation of Yoo (and Bybee when his free pass is revoked) for his breach of duty to his office. That?s a good thing.

Lesson Three: The fact that legal questions are often contested?subject to legitimate differences of opinion?does not mean that any legal argument one can come up with has some claim to validity: some legal arguments are obviously wrong even when no judge has ruled it so. What ?torture? means is not a simple question, but any legal argument to the effect that water boarding is not torture deserves the same treatment as a legal argument that a 25-year-old can run for President. And we don?t need to wait for a judicial determination to be certain of this.

We have Bybee and Yoo to thank for showing us?unintentionally, of course?that legal interpretations are stabilized through shared understandings and judgments about plausible legal arguments. We can collectively recognize the difference between a weak but arguable legal position and an absurd legal argument to be rejected out of hand. As Jack Goldsmith?s retraction of the memo demonstrated, this is not just a matter of the politics of the eye of the legal interpreter. What they produced was blatantly implausible legal analysis. The rule of law depends upon our capacity to make such determinations despite the presence of legal indeterminacy. Although it is largely invisible, this happens every day in the work of lawyers. Only a small fraction of legal issues and questions are ever resolved by judges, so law truly operates through this shared understanding. It is useful to be handed a dramatic reminder of how this functions.

These are valuable lessons which Bybee and Yoo appear to have forgotten at the time. Apparently they lost sight of (or willfully ignored) the difference between instrumental legal analysis and an even-handed exploration of the law, apparently they lost sight of the special duty attached to their office, and apparently they felt that it was enough to come up with a legal argument delivered in the proper form (with citations and the like), however lacking in merit. They were under a lot of pressure and subject to group-think. They perceived the stakes to be large. Although what they did is understandable under the circumstances, they dealt the law a wound.

But a more enduring good might come of it--if we learn these lessons well.

Full post as published by Balkinization on April 14, 2008 (boomark / email).