AT LAW
Wise Counsel
Putting Alberto Gonzales's "torture memo" in perspective.
WSJ.com OpinionJournal
BY DOUGLAS W. KMIEC
Wednesday, January 5, 2005 12:01 a.m.
As the confirmation hearing of attorney general nominee Alberto Gonzales gets under way tomorrow, it appears certain members of the Senate Judiciary Committee will dwell on his role as adviser to the White House on the legality of interrogating terror suspects in the wake of 9/11. Whether this is politically motivated is not for me to say. What I will say, however, is that Mr. Gonzales has provided wise counsel to the president--and has had the courage to correct missteps--under very trying circumstances. Mr. Gonzales fully merits confirmation, but first some background:
Late last week, the Department of Justice withdrew an earlier legal analysis that had been interpreted by some as authorizing the torture of war detainees. Rejecting that notion categorically, the department's Office of Legal Counsel wrote anew: "Torture is abhorrent both to American law and values and to international norms."
In reaffirming this basic statement of human rights, the OLC was following up on the re-examination of a now much criticized August 2002 memo that had been promised by Mr. Gonzales last June in his role as White House counsel. Unlike that initial memorandum, the re-examination avoids speculating about hypothetical cases or the outer limits of presidential power. There has been much recrimination over the earlier advice, and there is little question that it was surprisingly expansive in scope.
Yet, let us not forget the context in which the earlier memorandum had been authored. The world in early 2005 looks very different from the gloomy picture immediately after 9/11. We now better comprehend the highly unusual, non-nation-state nature of the world-wide radical Islamist foe that has declared, and is making, war on the U.S. Today, it is possible to say, as the OLC has, that torture is no less "abhorrent or unlawful" even when premised upon protecting national security. But this realization has been made possible more by heroic battlefield sacrifice than by legal acumen.
That said, one of the reasons the OLC retains a reputation for objectivity, accuracy and thoroughness is its willingness to clarify and even overrule itself when previous legal advice is superseded by new facts or changes in law. In the present case, there is the unfortunate subsequent fact that some service personnel have sought to justify shameful treatment of detainees by claiming that previous legal advice somehow invited or sanctioned their misbehavior. As the OLC re-examination forthrightly states: "Consideration of the bounds of any such authority [to disregard international or domestic law] would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture." That has to be the unambiguous standard of the U.S., even when facing the most treacherous of enemies.
On the eve of Mr. Gonzales's Senate confirmation hearings, the new memo helpfully corrects an insidious misimpression about Justice Department lawyering. No attorney general can ever permit the OLC to be perceived as a band of lawyers engaged in sharp practice looking for legal loopholes. Known as the "attorney general's lawyer," the OLC must always be guided by the highest ethical standard answering specific questions in the most objective manner possible. This includes even the ability to say "no" to the president when the law so directs. President Reagan dearly wanted the power to line-item-veto excessive spending matters, and a popular theory in his second term was that he could claim that as an inherent power. The OLC canvassed legal history and practice and concluded otherwise, and while the Gipper was not pleased by the OLC's determination, he respected it.
Thankfully, it is rare for the OLC to need to re-examine or overrule earlier advice; but it is not unprecedented. Again, in Reagan's second term, a previous OLC opinion had concluded that individuals with AIDS were outside the protections of federal civil-rights laws. Two years later, the OLC reconsidered and concluded that the law did, in fact, protect individuals with AIDS against unreasoned discrimination. As with the torture memo, the AIDS re-examination had the benefit of subsequent events--a later Supreme Court opinion, better scientific information, a more clearly manifested intent of Congress as well as the specific circumstances in which those with AIDS were being wrongfully excluded from federally supported programs.
Prompted by the overstatement of the initial torture memos, some who have served in the OLC--mostly in past Democratic administrations--have been circulating "guidelines" to govern the OLC's future decision-making. Given the timing, there is some suspicion that these suggestions may be partisan, inviting opposition to Mr. Gonzales. However, even taking the guidelines at face value, and also acknowledging the integrity of their drafters, adopting them would be a mistake of the same nature as the original torture memo. The guidelines attempt to answer the unknowable by speaking in wide generalities that necessarily must be refined in future application.
Take, for example, proposed guideline No. 6, calling for general public disclosure of legal advice. In politics, transparency is a virtue; the same cannot be said for legal advice, as longstanding ethical and evidentiary rules protecting lawyer-client work-product and conversations make clear.
Moreover, creating an unrefined presumption in favor of disclosure gives little consideration to the preservation of the president's unique constitutional privilege acknowledged by the Supreme Court. Guideline No. 8 pronounces that the "OLC should seek the views of all affected agencies and components of the Department of Justice before rendering final advice." Seemingly benign, this would invite "affected agencies" to lobby for their desired policy over the restraints of existing law. This is hardly constructive since it confuses the OLC's role as legal interpreter for that of policy maker. OLC legal opinions are not notice-and-comment rule-making, they are expositions of the law as written.
To the extent that the guidelines are motivated by the desire to avoid another torture memo misstep, it is worth remembering Thomas Hobbes's observation that "no man's error becomes his own Law; nor obliges him to persist in it." Even before confirmation, Mr. Gonzales has demonstrated that no presidential or personal friendship will oblige him to persist in the errors of others. He deserves substantial credit for returning the whole torture memo matter to the Department of Justice for rethinking. It is the hallmark of a wise counselor who has the courage--even in the face of national embarrassment--to see error, and to correct it in a fashion that does not undermine the necessary authority of the president to engage in the humane interrogation of those captured in the war on terror.
That is what the OLC, at the direction of Judge Gonzales, has sought to do. He is a sound choice for attorney general and his ability to apply the law to our unknown future ought not to be hamstrung by even the best-intentioned advice of those who served well in their time, but who cannot possibly know the hazards that must yet be faced and guarded against.
Mr. Kmiec, head of the OLC in the Reagan and George H.W. Bush administrations, is a professor of constitutional law at Pepperdine University.
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