About those “torture memos”

Professor Michael Paulsen is university chair and professor of law at the University of St. Thomas Law School in Minneapolis. Prior to his current position, Professor Paulsen was McKnight Presidential Professor of Law and Public Policy, Law Alumni Distinguished Professor, and Associate Dean for Faculty Research and Scholarship at the University of Minnesota Law School, where he taught for sixteen years.

Professor Paulsen was also an attorney-adviser in the Justice Department’s Office of Legal Counsel from 1989-1991. His areas of primary legal scholarship include constitutional law, separation of powers, war, national security and the Constitution, and legal ethics and professional responsibility. The author of more than 60 academic articles in these fields, he is one of the country’s foremost constitutional scholars (and my friend).

The current issue of the Weekly Standard carries Professor Paulsen’s article “Obama’s Injustice Department.” The article discusses the leaked Justice Department memo proposing the referral of Bush administration Justice Department lawyers to state bar disciplinary committees for the authorship of the Office of Legal Counsel memos analyzing the lawful limits of interrogation of terrorist detainees (sometimes referred to as “the torture memos”). We discussed Professor Paulsen’s article over the weekend in “Legal ethics: A case study.”

“How many things are wrong with this picture?” Professor Paulsen asks in his Standard article. From the perspective of legal ethics, constitutional law, and good government, he counts five big problems. Summarizing the “five big problems” with the draft report described in the press leaks, Professor Paulsen concludes:

Unethical leaks and confidentiality violations; outsourcing federal responsibilities; basic misunderstandings of legal ethics principles; incompetent analysis of constitutional, international, treaty, and statutory law. What more could be wrong with an ethics office’s actions? It is hard to know for sure–without seeing OPR’s report–the full extent to which it contains all of these problems. But leaked accounts of the OPR’s draft report so far call that office’s ethics and professionalism into question more than they do those of anyone else.

I quoted three paragraphs from the article on the substantive legal correctness of “the torture memos.” In written testimony submitted to the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee for a May 13 hearing, exploring the question “what went wrong” in the provision of legal advice by attorneys in the Office of Legal Counsel in the Bush administration, Professor Paulsen challenges the notion that something “went wrong” in the provision of legal advice in any sense other than that some persons now disagree vigorously with the legal analysis and advice in question. At the outset of his testimony, Professor Paulsen defends the substantive correctness of the memos’ legal analysis and advice in somewhat greater detail than the space allowed in his Standard article:

[T]he core legal analysis set forth in the OLC memoranda in question is, in my opinion, not only within the range of legitimate legal analysis and advice but is in fact substantively correct on the merits. There exists a basic distinction in the law between what constitutes actual, legal “torture,” under applicable standards, and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, “torture.” Reasonable people will come to different conclusions as to where precisely that line is, but the Bush administration’s lawyers’ ultimate conclusions are certainly defensible. Indeed, I believe they are ultimately correct, both as an abstract, general matter and in their specific application (matters addressed in a variety of separate OLC memoranda). [Footnote omitted.] I do not necessarily agree with every particular point, or argument, made in support of OLC’s specific statutory-interpretation conclusion. Some subissues I would have addressed differently; on some points I would have said more, and on others less. (I say this with some reticence, acutely aware that I speak from a retrospective vantage point that perhaps too easily permits Monday-morning-legal-quarterbacking.) Nonetheless, I believe that OLC’s essential statutory conclusion that “torture” refers to a narrow, highly specific subcategory of coercive interrogation techniques, is correct. As a legal matter – that is, as a matter of the objective meaning of a particular statutory term-of-art – the term “torture” may differ from, and be more specific than, commonplace or public political usage. That is the distinction that the memoranda draw; and they draw that distinction on the basis of specifically legal analysis.

Moreover, as a matter of constitutional law, the OLC memoranda’s most sweeping, categorical, and controversial conclusion – that at all events no statute or treaty may limit the President’s sole constitutional powers as military “Commander in Chief” to direct and conduct the use of U.S. force – is in my opinion unquestionably correct. The Office of Legal Counsel has long and consistently defended the view, both in Republican and in Democratic administrations, that the President’s constitutional powers under Article II of the Constitution, as chief executive and as Commander in Chief of the nation’s military, afford the President substantial autonomy of action in the areas of the conduct of the nation’s foreign affairs and the conduct of war and military actions. These powers, as constitutional powers of the President, cannot constitutionally be subject to congressional regulation or control. An act of Congress, or a treaty of the United States, that infringes upon the constitutional powers of the President of the United States is, by definition, unconstitutional, under the straightforward reasoning of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Accordingly, it has long been the view of the Office of Legal Counsel that any such enactments cannot legitimately constrain the actions of the President pursuant to his independent constitutional powers; and, further, that such enactments should be interpreted and understood, where fairly possible, to avoid such conflict with the constitutional powers of the President. See, e.g., Memorandum of Walter Dellinger, Assistant Attorney General, Office of Legal Counsel to Abner Mikva, Counsel to the President, Presidential Authority to Decline to Execute Unconstitutional Statutes (Nov. 2, 1994).

These are views that should command the respect of all presidential administrations, including the incumbent administration. The Constitution itself prescribes that all presidents swear the oath to “preserve, protect and defend” the Constitution. U.S. Const. art. VI, cl.3. It is therefore the duty of all presidents to protect the constitutional powers of the office of President of the United States. It follows that it is likewise the duty of all attorneys representing the executive branch to defend the constitutional powers and prerogatives of the President of the United States.

The constitutional arguments put forward in the OLC memoranda addressing legal standards applicable to interrogation methods are fully in accord with these views, and with the duty of executive branch attorneys to advance them, and they are in my opinion legally correct. My most recent academic scholarship includes a lengthy examination of precisely this genus of constitutional issues. See Michael Stokes Paulsen, The Constitutional Power To Interpret International Law, 118 Yale L.J. 1774 (2009) (forthcoming, June 2009)….

Certain points and arguments advanced in earlier-dated confidential (in fact, classified) OLC memoranda subsequently were withdrawn by Bush administration attorneys in later memoranda intended for public consumption. However, none of the most important, material legal conclusions – and none of the specific legal advice as to the application of such conclusions- was repudiated. Rather, arguments were withdrawn (once memoranda had been leaked publicly) where they were judged unnecessary to the ultimate legal conclusion, politically inappropriate, contrary to subsequently-stated public presidential determinations or proclamations, or for some other unstated reason. In particular, later memoranda declined to rely on the argument that the president retains the constitutional power to make orders to U.S. forces, in the exercise of his sole constitutional power as Commander in Chief, that are (or may be) inconsistent with statutory requirements. This is not because that argument was or is incorrect, but probably because it was unnecessary (and thus impolitic) to rely on such a legal position, given President Bush’s stated policy position that the United States had not engaged, and would not engage, in interrogation tactics inconsistent with the statutory prohibition of torture. None of this, in my view, affects the propriety of the constitutional argument as advanced in the earlier memoranda.

In the conclusion of his testimony, Professor Paulsen refers to the consequences of seeking to punish the Justice Department attorneys responsible for the memos in issue:

I was a line attorney (career civil service) in the Office of Legal Counsel, from 1989-1991. I can state unequivocally, based on my experience, that this phenomenon [of the chilling of candid legal advice expressing the full range of views] will occur and will occur quickly. To investigate, and seek to impose political, personal, or other punishment on government attorneys who provide good-faith but controversial legal advice, whenever that advice might become out-of-favor politically, will damage the Office of Legal Counsel, the Department of Justice, and ultimately, the office of President of the United States. And, of course, ultimately, this would damage the interests of the nation that these men and women serve.

Professor Paulsen’s testimony is deserving of serious consideration in the context of the outrage committed by the Justice Department attorneys apparently reponsible for leaking the draft memo discussed in Professor Paulsen’s Standard article.