There are currently two legal proceedings pending which may have the effect of focusing official -- as opposed to academic and media -- attention on the legal advice given by OLC lawyers on the permissibility of certain "enhanced interrogation techniques." One is the lawsuit by Jose Padilla against John Yoo (and many others, including former SecDef Donald Rumsfeld) alleging that he had been subjected to cruel, inhuman, and degrading treatment amounting to a deprivation of his constitutional advice. There have been extensive discussions of this lawsuit in various blogs, including a post by our very own John Steele, as well as David Luban's post over at Balkinization. The second proceeding is the recently reported internal investigation by the Justice Department's Office of Professional Responsibility. That investigation is aimed at determining whether OLC lawyers violated their ethical obligations by concluding that waterboarding, among other "enhanced interrogation techniques," is lawful. Marty Lederman and David Luban disagree over whether there is any point to this investigation. Since Lederman and Luban are just about the most knowledgable people around, with respect to these issues, I've been wondering what they disagree about.
Lederman's argument is that the OLC lawyers were providing advice to the President in furtherance of his constitutional obligation to faithfully execute the law. The President is the one who has to make the legal decisions -- he has simply delegated responsibility to the Attorney General (who has, in turn, delegated responsibility to the OLC) to help him make those decisions. Thus, says Lederman, ordinary ethics rules don't really capture what's going on here.
But I'm not sure that the setting, within government, makes a difference. At root, any lawyer-client relationship is a principal-agent relationship. The lawyer's authority and duties ultimately derive from the legal rights and obligations of the principal. The lawyer has additional fiduciary duties (loyalty, confidentiality, etc.), but insofar as the lawyer is advising the client, the touchstone is always the client's legal entitlements. Saying that the President has a constitutional argument to faithfully execute the law is really no different from saying that a private client has a legal obligation to follow the law. (Whether the client has a moral obligation is a different question.)
A lot of discussion of the OLC lawyers' advice has focused on its "incompetence" or lack of candor. That's natural, because those are the terms in which the Rules of Professional Conduct speak. Model Rule 1.1 requires comptent representation, Rule 1.4 requires the lawyer to communicate relevant information to the client, Rule 2.1 requires the lawyer to exercise independent judgment and render candid advice. But the OPR's investigation is not limited to "ordinary" violations of the rules of professional conduct. The analytical framework for the Office defines the obligations of DOJ attorneys in terms of all applicable law, including constitutional, statutory, regulatory, and caselaw requirements, as well as the relevant disciplinary rules of the attorney's state of licensure. Failing to comply with any of these obligations, with scienter, is a basis for discipline by the OPR.
Lederman argues that the lawyers did comply with the law:
OLC acted exactly as the President expected it to do -- that is, not to identify the best or most orthodox, or most likely to be accepted, legal conclusions, but instead to push the envelope and to come up with any idiosyncratic legal analysis that would permit the President to engage in his desired course of conduct, as long as that analysis was not completely preposterous. . . . [S]ince John Yoo apparently was doingn exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing.
The reliance on the President's approval or direction, with respect, is a red herring. The issue is not whether a lawyer must comply with her client's requests, but whether a lawyer must comply with her client's lawful requests. Lederman stresses the President's independent constitutional obligation to ascertain the requirements of law, but lawyers also have an independent obligation to ascertain the requirements of law. The fact that, as Lederman notes in his more recent post, "[t]he new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views" also doesn't change anything. I know that sounds counterinuitive -- isn't the Attorney General's job to say what the law is? -- but I think it's the only way to make sense of the idea of an independent agency within the DOJ which is charged with ensuring fidelity to law by agency lawyers. If we really thought the law was just what the Attorney General said it is, we wouldn't have an agency like the OPR, and wouldn't think it's important to ensure that it has some degree of independence. (How much independence it actually has is another matter -- see this Washington Post article about the lack of independence of many agency inspectors general. Emily Bazelon, in Slate, points out that the OPR's independence has been frequently compromised by actions of the President and the Attorney General, implying that we shouldn't expect much different this time.)
It's worth pointing out that Lederman thinks the arguments offered by the OLC for the permissibility of waterboarding are totally bogus, as a matter of interpretation of the governing law, particularly the federal Torture Statute. If that's the case, then there is something for the OPR to investigate.