One of the interesting things about working in the field of national security law is the trans-substantive nature of the topic. Scholars writing in the field can approach issues from almost any perspective, ranging from constitutional law, separation of powers and federal courts to immigration law, criminal law, and international law. Despite many discussions at panels and in the blogosphere dealing with torture and the memos authored by Professor Yoo and Judge Bybee, I still think that a particularly interesting, and perhaps under theorized area of national security law is its intersection with the rules of professional responsibility and the ethical obligations of attorneys. That's why I was very excited to read Keith Petty's article Professional Responsibility Compliance and National Security Attorneys: Adopting the Normative Framework of Ethical Legal Process. I know Keith from some advisory work I did a few years ago, and also from workshops and symposia, and I've always appreciated his insights into matters of national security from both a theory and practice perspective.
Petty applies a behavioral studies approach to the ethics of national security legal advice. Arguing that the traditional models of PR norm identification are flawed as they relate to government attorneys, he proposes the adoption of a three-step approach—the ethical legal process—that incorporates compliance theory and serves as a guide to lawyers practicing in times of crisis. Petty goes out of his way to avoid taking a position on whether the authors of what he calls "the torture memos" should be subject to professional sanctions or criminal liability. At first I thought that was a dodge, but as most of us know the issue has been rehashed in numerous articles and essays, so if it was a dodge it was a necessary one. By stepping past the issue, Petty seems to be attempting to prescribe an approach to government legal ethics that would have prevented the flawed reasoning of these memos and offers what he theorizes will serve as a guide to future attorneys practicing in the tense times of national crisis. Some commenters will no doubt have a problem with that approach, but I think it's refreshing. Accountability for alleged misconduct is a line of reasoning and argument that we've frequently debated within and outside the national security law field, it certainly gets the comment section of blogs and the audience at AALS panels fired up. Unfortunately, we've spent a lot less time discussing how to implement institutional and professional checks that prevent the flawed reasoning in the first place. Is accountability part of that calculus? Sure. But it's not the whole calculus, and I think even the most passionate advocate for accountability would concede that the best possible result is avoiding potentially flawed advice that results in abuse in the first place. That's Petty's focus, and it drew me in, I hope commenters will agree.
In this post I'm going to set up how I read Petty's framing of the issue. In a follow on post I'll evaluate his ethical process argument.
A Failure of Traditional Approaches?
Petty begins by describing the traditional approaches taken to government attorneys’ PR obligations, and describes why they are inadequate to ensure ethical compliance. Given the paucity of guidance regarding the ethical norms of government legal advisers, Petty believes that scholars have taken two different approaches; a client-identification approach and an attorney centered approach.
There are two general schools of thought under the client-identification approach. The first cites the agency/agency head as the client, relying on a private practice model of attorney-client relationships. Supporters of this approach argue that it is an issue of democratic accountability. Elected officials, and the appointees he/she designates, are voted into office in part because of their legal philosophy. The other school Petty describes is one that views the government as a whole, or the public interest, as the client. He believes that these scholars reject the agency approach, unless the views of the government agency coincide with the public interest. Petty argues that a strict agency-as-client approach is not appropriate in government service, because unlike the litigator or a private attorney there is no adversary or neutral judge to rebut the government advisor's position. Zealous advocacy of the policy-maker’s decision can have harmful political and legal consequences (see e.g., torture memos). Conversely, the public interest model is, in his words, subjective, abstract, and has little to do with achieving compliance with ethical norms. After all, what is precisely in the public interest? Is it the public that asks for more forward-leaning approaches to combating terror, or is it the public interest that simultaneously criticizes the CIA for implementing aggressive counter-terror operations?
Focusing on the specific role of the national security attorney is another approach taken to define applicable ethical obligations ----attorneys can fall into the role of adviser, advocate, counselor, or even judge. But these arguments fail for many of the same reasons as the client-centered approach. Citing Goldsmith, Petty notes that “Legal advice to the President from the Department of Justice is neither like advice from a private attorney nor like a politically neutral ruling from a court. It is something inevitably, and uncomfortably, in between.”
Petty doesn't disregard the moral and ethical considerations underlying these traditional models, but instead thinks that none adequately circumscribe the attorneys role in such a way as to ensure ethical compliance. Petty contends that the first step toward compliance requires recognition that in various crisis situations the role of the attorney may change and the identity of the client may shift. That these approaches, standing alone, fail to account for external factors that influence the behavior of national security attorneys is reason, in Petty's mind, to fundamentally reexamine our approach to the ethics of government legal advisors.
Compliance Theory and Behavioral Influences
Turning to the behavioral, Petty attempts to identify the norms governing legal advisors by exploring a concept known as "compliance theory." This theory has apparently been used in the past to analyze whether individuals have a duty to obey the law, how to enforce government regulatory schemes in the private sector, and whether government officials are faithfully executing the laws.
Petty outlines four theories of behavioral compliance: coincidence (ie. There is no causal relationship between norms and obedience), identification/conformity (ie. People loosely conform conduct to rules, but not because they feel a legal or moral obligation to do so), compliance (ie. Actors follow rules in order to gain rewards or to avoid punishment), and obedience/internalization (ie. Actors are in true compliance when they incorporate a rule as part of their internal value set). The higher standard of ethics often attributed to government attorneys, and seen in the “public interest” approach discussed above, is consistent with the value-oriented approach of internalization. As such, the ethical legal process includes internalization as a requisite step to predictable, habitual compliance. The organizational theorist in me immediately noticed the touchpoint between these factors and the literature in organizational behavior (more on that in the next post) As my summary suggests, Petty sets up these theories of behavioral compliance in a hierarchy form from almost meaningless happenstance (coincidence) to value laden (obedience/internalization).
He then outlines the negative influences on ethical behavior generally, and applies them to national security practitioners. I thought this was a particularly helpful taxonomy of the organizational influences operating on national security attorneys:
Approval Seeking and Personal Interest: Petty argues that among the primary forces drawing one away from ethical compliance in government service is the desire to please the decision-maker and seek professional gain. Reports confirm that OLC sought to push the envelope when the torture memos were written, and in doing so allowed political considerations to override ethical obligations.
Political and Ideological Allegiances: Model Rule 2.1 permits lawyers to consult the law and “other considerations such as moral, economic, social, and political factors….” Still, the commitment of Bush Administration attorneys to the expansion of executive authority seems in Petty's mind to rival that of prior crisis Presidents. The point at which political motivations overtake considerations of lawfulness and applicable ethical norms is where ideological allegiances negatively impact compliance.
Nature of the Crisis and Time Sensitivity: According to Petty, the national security issue at hand determines the extent to which policy-makers base their decisions on a formal legal analysis. The unprecedented nature of the 9/11 terrorist attacks, coupled with intelligence reports of additional threats, generated fear among policy-makers that another devastating attack was inevitable and possibly imminent. This climate of fear contributed to apparent transgressions from the norms of the profession when the torture memos were drafted.
NEXT POST: Above I've summarized Petty's explanatory "set-up" which focuses on the failure of the traditional approaches, theories of behavioral compliance, and the negative influences on ethical behavior. For space and time considerations I'm going to split this post into two parts. In my next post I will unpack Petty's ethical legal process argument, critiquing and evaluating some of its central claims. I'm no expert in PR, I've just begun to dabble into the field and am teaching it for the first time this semester, so I'll be interested in reading the comments section for what our experts out there think of Petty's piece.