February 05, 2007
The Legal System and the War on Terror
At Open University, David Bromwich complains, inter alia, about the unwillingness of the legal profession to take collective action against lawyers who support the administration's legal theories about the war on terror:
[I]f lawyers alone were enough to support the laws, Alberto Gonzales would long since have been slapped with a censure by the American Bar Association. There have been large exceptions--David Cole, Kenneth Roth, Harold Koh, Erwin Chemerinsky, Bruce Fein--but the striking thing about the legal community in the past five years has been its embarrassed silence and show of decorum in the face of an unprecedented attack on the system which its profession is to guard.
Now, like many other legal bloggers, I have not been wholly uncritical of the President's particular theories of constitutional interpretation. But it seems to me to be important-- very important-- that the administration's lawyers have felt the continuing need to justify the President's actions under law, whether by interpretation of the AUMF and FISA, the Commander-in-Chief Clause, the Article II Vesting Power, and so on. And the fact that the administration has adhered to some of these arguments even after shown skepticism by the courts, and even in cases unlikely to be subject to judicial review, seems to me a good thing, a sign that even this administration feels the need to argue that it is acting under, not above, the law.
It might be the case that these legal theories are incorrect, or that they are not offered in good faith, or that the administration fails to be sufficiently consistent about holding the same philosophy from controversy to controversy. But it seems to me important that the legal controversy over the war on terror is at worst not an attack on the legal system or the idea that even powerful men are governed by laws, but rather an example of argument within it.
The same observation holds true, incidentally, of The Civil War Congress. Even leaving aside executive action, it is exceedingly unlikely that everything that the Civil War Congresses did during that period was in fact consistent with the Constitution, although reasonable people can disagree on the constitutionality of the particular statutes for conscription, forfeiture, emancipation, habeas, and the admission of West Virginia.
But it is important-- extremely important-- that almost overwhelmingly (with troubling exceptions so few as to prove the rule) even the Civil War Congress (which had eliminated most of the likely dissenters and opposition) felt the need to justify its actions within the framework of the Constitution of the United States.
Yes, of course lawyers should speak truth to power, but the fact that powerful agents of the government justify themselves with constitutional arguments whose correctness can be debated is not an "attack on the system" of law and lawyering, but rather a recognition of its true power. Comments (9)
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