In a post a few days ago I introduced Keith Petty's article Professional Responsibility Compliance and National Security Attorneys. I'm going to wrap up my comments on that article in this post.
As I mentioned in my prior post, Petty makes clear early on that his article is not an attempt to determine whether or not the authors of the torture memos should be subject to professional sanctions or criminal liability. Instead, Petty attempts to prescribe an approach to government legal ethics that would have prevented the flawed reasoning of the memos and tries to outline an even more ambitious goal: provide guidance for future attorneys practicing in the tense times of national crisis.
Some of our readers may notice that the ethical legal process Petty advances is based in large part on a framework first proposed by Harold Koh, which analyzed government compliance with international legal obligations, known as the “transnational legal process.” (Harold Hongju Koh, Why Do Nations Obey International Law?) As applied to the laws of the profession, the ethical legal process consists of three stages—interaction, interpretation, and internalization—and adopts the competing theoretical models described in my prior post.
During the interaction phase, the attorney is confronted by an agency head, combatant commander, or the President with a situation of national import requiring quick, decisive action. The trust of the policy-maker enables the legal advisor to become engaged at the onset of the process. Requests for legal advice after a decision has been made leaves the government attorney with the unenviable task of crafting legal arguments to support what may be bad policy, which in turn creates morally ambiguous advocacy positions. As such, the lawyer must insert himself into the process early on so she can give legal advice rather than support flawed policy as a latecomer.
I'm curious about Petty's interaction phase, particularly his reform recommendation. Petty believes that by inserting the lawyer into the process at an earlier point they are less likely to be captured by the wishes of their superior. I'm not so sure. Think of the prosecutor who, while supervising an FBI agent may come to sympathize with that investigator's travails. The attorney in the policy making context may also become so embedded in the development of a policy that they become wedded to it. Perhaps having the attorney involved at an early stage is beneficial, but I think there still needs to be a second set of objective eyes brought in at a later point in time. I'm pretty sure Neal Katyal made this point in this article.
Second, Petty describes "the interpretive or discursive phase" of norm articulation. Ethical application of the law depends on the interpreted legal norm at issue and the professional responsibility that accompanies the manner of its implementation. As demonstrated by the fall out surrounding the issuance of the OLC memos, excluding other relevant advisors and issuing opinions that seek to unilaterally reshape constitutional and international legal obligations diminishes the independent, candid nature of the advice given. The effectiveness of the interpretive phase, therefore, depends upon clarifying ambiguous obligations, inter-agency communication, and openly vetting policy-decisions that may be contrary to the law.
This point, of open discussion and vetting is one I made in this article. There, I critiqued the process the Bush administration followed when it created the military commissions. Specifically I noted that the institutional designers who created the commissions followed an insular process that was resistant to normative pressures that would have urged conformity with the requirements of Common Article 3 of the Geneva Conventions (the position ultimately adopted by the Supreme Court in Hamdan). Interestingly, Petty takes this point and applies it to the context of ethical compliance, arguing that a recursive process of clarification, vetting, and deconstruction of legal opinions can result in better outcomes. I agree with the broader point, although I wonder how in a time sensitive context this can be achieved. That's more of a managerial or organizational point than a normative-legal analytic one, but I think it's important to consider. Stated differently, how can the "interpretive or discursive phase" be operationalized? It's a question of going from law as theorized to law as practiced.
Finally, Petty notes that consistent ethical compliance can be fully realized only after the individual has adopted the norm at issue as part of his or her internal value set. This is referred to as internalization, the final stage of the ethical legal process. Organizational factors play a large role in enhancing the ethical compliance of its members. OLC, for example, has a long tradition of integrity and ethically minded practice, which many argue was derailed in the first years of the “war on terror.” In order to reassert its ethical tradition, OLC might implement a variety of organizational measures, including whistleblower protections, assigning attorneys a “gatekeeper” function, and PR norm articulation through internal regulations and guiding principles. Petty argues that if these practices were in place in 2002-2003, and had the leadership fostered an environment of ethical compliance, then the problematic reasoning of the torture memos may have been avoided.
Petty ends by noting that times of crisis inherently generate negative influences on legal advisors’ ethics. Too often the discourse that shapes the application of the national legal authority results in zero sum compromise, either due to policy differences or political motives. Legal advice charged in these terms will neither advance security objectives nor the rule of law. It is at this point, Petty concludes, that the ethical legal process is crucial to providing an honest appraisal of the awesome power of the executive authority in national security decisions, deterring misuse in the process. By enhancing compliance with professional responsibility obligations; this process, he argues, will reinforce the rule of law and ultimately contribute to national security. I'm not certain that I agree with all of Petty's reform recommendations, and perhaps I'm cynical, but I'm not sure that what he proposes can be operationalized. Nevertheless, as I alluded to in my first post, this is the type of legal scholarship we need more of in the national security law subfield.