My Complete Response to Wittes' Entire Email.In case you missed the update to Ben Wittes Contradicts Lord Acton, I got a mention on the Lawfare blog from Ben himself. No real sparks flew: he is a very civil man. The worst I got was that "Norwegian Shooter" is an unfortunate name. Of course, I disagree vehemently with him on that score. It's not about guns - trust me.
Well, I happened to have snipped the beginning of his response, which prompted him to post the whole thing on Lawfare, giving me a shout out in the process. I sincerely thank him for that. For the record, here are my questions and his full response:
- Can you imagine an opinion issued by Lederman that would lead you to conclude his judgment was corrupted?
- What makes Lederman different from all the other people whose judgment was corrupted by power?
Dear Mark–I only posted the last two paragraphs because I thought the rest was off-topic. Here's why.
The answer to both of these questions is essentially the same: I have very high regard for both men, so I would be sorely disappointed if either had produced work product that struck me as irreconcilably at odds with what I understood the law to be. Yet this memo, insofar as I understand it from Charlie Savage’s reporting, is quite in keeping with what I believe the law to be. In fact, if you look at my posts on the question at hand from before the Savage story, they track the broad contours of the reported arguments in the memo reasonably closely. So from my point of view, this looks like two serious lawyers examining a hard and relatively uncharted legal question and coming up with an answer similar to the one I came up with myself. Since I don’t regard my own analysis as corrupt (though I’m sure others do), I see no reason to disparage theirs.
But ah, I hear you cry, you are some kind of wing-nut posing as a centrist, while they purport to be liberals. So isn’t it intellectual corruption that they find themselves in agreement with you when their president needs the sort of analysis I expect from the likes of you but expect more of from the likes of them? Hardly. Marty and David never opined, to my knowledge, on the question of targeted killing of a citizen during the Bush years. And while there is surely some relationship between targeting and detention, no serious lawyer asked to examine the Al Aulaqi question would consider it answered entirely by his own prior statements in blog posts, of all things, about the Padilla or Al Marri cases. To do so, I dare say, would be malpractice.
Marty is one of the two godfathers of modern legal blogging (along with Eugene Volokh). His blogging work set a standard of real-time commentary that hybridized the best of journalism with the best of academia. All of us who try to bring serious legal commentary to bear on the news follow in his footsteps to some degree. So it is with very deep respect for his blogging work that I insist that he had an ethical obligation to put it all aside when he showed up for work at OLC. There are many values an OLC lawyer is called upon to honor. Fidelity to his own past incidental writings–particularly his writings on other subjects–is not one of them. Finding something in Marty’s past that cuts in a different direction from the analysis in the memo on a related, but not identical, issue strikes me as a bit of a mug’s game.
What would convince me that the work was corrupt? An opinion evincing not merely legal error but legal error I thought they could not honestly believe. In this case, I don’t reach the second question, because I think they got something admirably close to the right answer.
As to your second question, I would turn it around: Isn’t it possible that, in this case, the law allowed the President and the CIA to do as they wished in the narrow circumstances that they wished to do it? And isn’t it possible thus that the situation was less corrupting than you assume? Indeed, isn’t it possible that Marty and David adopted about the most restrictive view of the law that the case law would actually support? This is actually what I think happened.
With all best wishes,
"I would be sorely disappointed if either had produced work product that struck me as irreconcilably at odds with what I understood the law to be." Who cares if you agree with the secret-but-somewhat-leaked legal reasoning of the memo? Not me. Maybe you're all wrong on the law. (What are your legal credentials, anyway?) It's immaterial to whether anyone was corrupted by power.
"In fact, if you look at my posts on the question at hand from before the Savage story, they track the broad contours of the reported arguments in the memo reasonably closely." Great, you weren't corrupted from the time you wrote those posts to the time you read the broad contours of the reported arguments. (Whether you were corrupted before your posts is another story). However, Marty Lederman's writings before he joined the Office of Legal Counsel were significantly different from the memo. You address this in the next paragraph.
Unfortunately, most of it is a red herring. Besides the fact that I don't cry, period: This is not an ideological issue. It is not about expecting a blog post to entirely answer a future question. It is not malpractice, even if the worst I said about it was true. The crux is buried as deep as possible in these distractions: "there is surely some relationship between targeting and detention." Yes, there is. You said so yourself:
A lot of people found the posited relationship between targeting and detention attenuated or improbable. But it’s very real. These cases are the only mechanism by which the country develops a body of judicial opinion concerning the meaning of the AUMF. While the context, of course, differs when the question turns to targeting, those cases remain a source of law–indeed, the only source of law other than executive branch interpretation–on the scope and meaning of the statute. It is, I think, inevitable that lawyers thinking about the application of the AUMF to targeting will consider carefully what the courts have said it means.I agree with that. Do you?
"There are many values an OLC lawyer is called upon to honor. Fidelity to his own past incidental writings -[moot]- is not one of them." We agree again. The values of an OLC lawyer are different than that of a private lawyer. That's exactly my point. Lederman traded the values he held as a private lawyer for the values of an OLC lawyer.
Note that I said values, not viewpoints, which will change based on position. But even more important is that you can't hide behind the usual lawyers' defenses: a lawyer's duty is only to the client or they are simply playing a role in an adversarial system. Neither apply to the Office of Legal Counsel. The OLC's client is the law itself and there is no adversary opposing its opinions. While "if the President does it, then it's not illegal" is of course wrong, what the OLC does isn't that far removed: the law means what they say it means.
The only caveat is that eventually Congress could write new laws and usually the courts get the final say. However, in the case of some national security issues, the opinion is top secret and the courts are very reluctant to weigh in. So there are no institutional checks or balances, just the power and the values of the OLC lawyers themselves. As Lord Acton said, power tends to corrupt values. It did in Lederman's case.
Finally, it is extremely noteworthy that you cannot bring yourself to mention the subject of Lederman's memo: a man's life. A life that was taken by the United States based on secret evidence and secret reasoning. Justifying that is a mug's game. And you're the mug.
 Not legal corruption. Corrupted meaning changing your values depending on the position you hold. Again, if Lederman came out and said "I was wrong before. Now I'm right." I would have to withdraw the charge. He is entitled to change his mind. But you and he haven't claimed that. You (and as I said, I suspect he) have rationalized the change away. Congratulations. But I didn't buy it then, and I don't buy it now. Also, I can't find anything Lederman, who is back in private life, has written about this since al-Awlaki was killed. This is all I found: Francis Scott Key* v. James Marshall Hendrix? and Reflections on Hosanna-Tabor — Justice Breyer’s statutory question.