TCS Daily

Legal Overkill

By Pejman Yousefzadeh - June 6, 2006 12:00 AM

It is the duty of a lawyer to be zealous in defending the interests of a client or in advancing a particular legal or policy agenda. But unbounded zealotry not only fails to take into account facts that must be dealt with in good faith, it also serves at times to generate a backlash against the very goals the zealous lawyers pursues.
Today, we are seeing mistakes in lawyerly overreach on the part of the Bush Administration. These efforts at overreach are being made in order to enhance the power of the Executive Branch, power that Bush Administration lawyers -- not without reason -- believe has been circumscribed over recent decades. But in making untenable claims in favor of the broadening of executive power, the Bush Administration lawyers are not only setting themselves up for failure regarding the specific claims involved, they are also setting up the Executive Branch to have its power circumscribed anew; exactly the opposite approach that is intended.
The flash point in the debate over whether the Executive Branch's power should be seen as enhanced or limited has come in the issue of the President's authority to ordain the treatment given to enemy combatants. At the heart of the internecine, bureaucratic battles has been an unknown but powerful Bush Administration staffer, David Addington, who served as Vice President Cheney's Counsel and now is the Vice President's Chief of Staff. This profile in US News of Addington reveals him to be a highly skilled lawyer and an excellent infighter. Addington has used his talents to push for an extensive expansion of Presidential power, especially when it comes to the President's wartime powers.
But in making his arguments, Addington -- and the coterie of Bush Administration attorneys surrounding him -- have sometimes gone too far. In one instance, Addington, along with John Yoo, the former Deputy Assistant Attorney-General in the Office of Legal Counsel, opined that Taliban combatants were not entitled to the protections of the Geneva Convention as prisoners of war because Afghanistan was "a failed state." As the US News article on Addington cited above points out:
"... Some government lawyers believed Bush could have announced his decision without endorsing the controversial "failed state" theory. "It's the least you need to say to get the president what he wants," says a former Justice official. "They go beyond where they need to go.""
Indeed, they have. The "failed state" argument was entirely unnecessary and has little grounding in law to serve as a basis for supporting Addington's and Yoo's arguments regarding the legal status of Taliban combatants. The aggressive approach taken by Addington, Yoo and others made fellow conservatives uncomfortable. As this story reveals, former Assistant Attorney-General Jack Goldsmith -- now a professor of law at Harvard -- rebelled against Addington's and Yoo's overreach. 
Blogger Daniel Drezner points out that Goldsmith's rebellion cannot be taken lightly; this, after all, was a lawyer who was renowned not only for a brilliant intellect, but for, in Drezner's words, his own distinctly conservative leanings:
"... I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO [Republican In Name Only] or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack."
As Drezner notes, the fact that Goldsmith -- who could and should have been a close ally of other Bush Administration conservative lawyers like David Addington -- felt alienated from the Administration's legal and policy arguments suggests something about the Administration's legal overreach.
The Administration could have achieved its legal findings without such overreach. All it had to do was to rely on the strict construction of the Geneva Conventions to support its argument that Taliban combatants did not merit POW status under the Geneva Conventions. Under Convention I, Chapter II, Art. 13, even the wounded and sick must meet the following qualifications to be considered covered under the protection of the Geneva Conventions:
"... Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war." (Emphasis mine.) 
Command and control responsibilities in terrorist organizations are looser than they are in regular armies fighting symmetrical warfare. Terrorist insurgents generally do not have "fixed distinctive sign[s] recognizable at a distance," the better to blend in with the population at large and to be able to conduct and launch the surprise attacks that are so characteristic of terrorist warfare. Along the same lines, terrorists do not "[carry] arms openly" and terrorism does not constitute "conducting operations in accordance with the laws and customs of war." Additionally, Protocol I, Part III, Sec. II of the Geneva Conventions mandates that:
"In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack."
To be sure, this section of the Geneva Conventions recognizes that "there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself," but as the Website for the Geneva Conventions notes, "these protocols aren't as widely accepted as the four 1949 conventions," and even if they were, they still mandate that a combatant "[carry] his arms openly" if he is to be placed under the protection of the Conventions.
This is wholly in line with the traditional laws of war. In an earlier defense of John Yoo on TCS, I noted the following statement from General Order No. 82 of The Lieber Code and the Laws of War:

"Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

If the Administration relied on the traditional laws of war as expressed by the Lieber Code and codified by the Geneva Conventions it could have achieved its purpose of writing a legal justification for treating Taliban combatants -- and for that matter, irregular Iraqi insurgents -- differently from traditional POWs.

Of course, it is a separate matter as to whether such a policy, however legally justified, would be wise to implement; the harsh treatment of even irregular enemy combatants could prove (and has proved) harmful to America's image at home and abroad. But even if we put such an issue aside and focus solely on the lawyering done, it appears that the Administration has gone vastly further than it needed to go in order to achieve the desired legal result. Such unnecessary overreach is both legally unsound and tactically foolish if one is serious about drawing up a coherent legal and intellectual justification for expanding the powers of the Presidency. And such unnecessary overreach promises to attract the kind of negative attention that will only bring about a backlash. Such backlashes can be a detriment to the longer term requirements of Presidential power.

Blogger and law professor Orin Kerr recently drew attention to a commencement address given by Chief Justice John Roberts at Georgetown Law School. In his comments to the graduates, the Chief Justice said that "If it is not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more." The lesson applies not only to jurists on the nation's highest court, but to lawyers in the Executive Branch. Failing to heed that lesson not only tends to produce sub par legal analysis, it also produces a counter-reaction that undermines the policy the legal analysis is intended to implement. There are a great many good-faith reasons to fear that the power of the Executive Branch has been unnecessarily diluted in recent years. But as a result of the Bush Administration's overreach, those who seek to expand the powers of the Presidency may inadvertently end up helping to dilute it.
Pejman Yousefzadeh is a TCS contributing writer.


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