JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the pattern of executive branch decision making in the aftermath of the terror attacks of September 11th suggests that US national security policy will succeed only if policy is driven by law, and not vice versa...
It is obviously tempting to focus on substance in deciding which national security issue is most important to our nation today. However, I would like to suggest a different focus: the relationship between law and policy. This suggestion is in large measure a product of my time as a government legal advisor, and my reactions in that capacity to the many national security law related decisions that flowed from our government in the aftermath of the terror attacks of September 11th. This experience produced a frequent sense of discouragement as I became increasingly aware of what I and many others perceived to be deliberate manipulations of law to satisfy the demands of policy objectives.
This has led me to conclude that, at least in my opinion, the most important issue in national security law today is the relationship between national security law and national security policy. U.S. national security policy will succeed only if policy is driven by law, and not vice versa. To paraphrase Justice Frankfurter from the Steel Seizure Case, the existence of emergency does not ipso facto produce power in government; and power in the federal government to respond to emergency does not ipso facto produce power in the executive branch. However, most observers would now agree that this was exactly the philosophy that dominated executive branch decision making in the aftermath of the terror attacks of September 11th.
This distorted view of the role of law in the development and execution of national security policy has been pervasive at the highest levels of the executive branch. With issues ranging from the legal basis for Operation Iraqi Freedom, to the status and treatment of individuals captured by the armed forces during the military component of the self-proclaimed Global War on Terror, to the development of a process for the use of military commissions, to the use of national intelligence assets to conduct domestic surveillance, law had become a slave to policy. This not only undermined the legitimacy of these critical national security policy decisions a number of which were subsequently invalidated because of defective legal foundations but it damaged morale of the thousands of legal advisors serving throughout the executive branch. These lawyers - some relatively inexperienced, others with long and distinguished careers in government service had always understood their ultimate role to be that of ensuring the policy makers they advised adjusted their decisions to the dictates of law. However, the message sent through the dubious legal opinions emanating from the senior levels of the executive branch undermined this fundamental tenet of ethical responsibility and suggested that the "new" role of legal advisors was to interpret law in a way that accommodated policy objectives.
This is not to suggest that legal advisors should pride themselves on being "naysayers". Indeed, the tradition of the government legal advisor is quite the opposite. These lawyers have traditionally taken great pride in their ability to assist policy makers in identifying legally sound courses of action to achieve established policy objectives. But good faith application of controlling legal authority has always been the "first principle" of such an approach to advising policy makers, and such alternate courses of action have ultimately been responsive to the unyielding commitment to ensure policy is adjusted to comply with law, not that law is adjusted to facilitate policy. Nor is this a suggestion that all existing legal constraints on policy are always logically and pragmatically sound. But the response to such impediments must always be to seek modifications in the law, not manipulation, marginalization, or circumvention.
The fallout from this distortion of the relationship between law and policy has been profound. Key legal opinions have been withdrawn; key legal advisors have been discredited; senior career legal advisors such as the Judge Advocates General of the military services have stood in unison against their politically appointed counterparts to challenge and undo prior legal decisions. But perhaps most pernicious has been the uncertainty this approach has injected into the operational decision-making realm. Policy decision calling into question the application of tried and true legal paradigms undermined the effectiveness of subordinate legal advice and the clarity with which operational decision-makers understood the parameters of acceptable conduct.
Another significant, although more subtle negative consequence of this distortion was how the dubious legal analysis flowing from the executive branch produced a loss of congressional confidence and a resulting backlash in the form of legislating operational standards. This was most apparent with regard to the treatment of detainees, leading to the passage of the Detainee Treatment Act. Setting aside the question of whether the Act actually achieved the asserted objectives of Congress, the mere fact that Congress felt compelled to legislate in an area historically entrusted to executive discretion reveals the extent of the loss of confidence resulting from executive overreaching. These legislative rebukes have not been limited to detainee treatment, but have extended to several other key areas of the Bush national security policy. All of this reveals a truly unfortunate executive branch deviation from the tradition of interpreting and applying law in a manner consistent with its underlying purpose, and not in a manner designed to "get to yes."
As the Supreme Court observed in United States v. Robel in 1968, "[I]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties which make the defense of the nation worthwhile." The first bulwark against such subversion is preserving the traditional understanding of the relationship between law and policy. Fidelity to this "first principle" of the role of a government legal advisor must begin at the highest levels of government. Without such an understanding, legitimacy in the realm of national security will invariably be the first casualty.
Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.