Lawyers and the War

75 Pages Posted: 5 Feb 2011

See all articles by Robert C. Power

Robert C. Power

Widener University - Commonwealth Law School

Date Written: 2009

Abstract

This article reviews legal advice provided by Attorney General John Ashcroft and Office of Legal Counsel officials John Yoo and Jack Goldsmith during the war on terrorism. It differs from the other works on this subject in two key respects. First, it includes detailed analyses of their conduct under the Model Rules of Professional Conduct and other pertinent legal ethics codes, such as the D.C. Bar Rules, the Code of Professional Responsibility, and the A.L.I.’s Restatement of the Law of Lawyering, as well as under the Department of Justice’s tradition of providing independent advice to the White House and other executive agencies. Second, it examines their own narratives of the crisis, as reflected in their published memoirs. Providing advice concerning the inter-relationships among international law, the law of war, constitutional law, and federal criminal statutory law requires cautious analysis of constitutional, treaty and statutory language, as well as judicial and executive precedent. The article concludes that Ashcroft and Yoo were ill-suited for their roles, each for different reasons. Ashcroft acted as a policy advocate and politician, while Yoo was an unyielding exponent of an extreme constitutional theory concerning executive power and was unwilling or unable to provide pragmatic "lawyering" advice. Goldsmith, however, recognized that Ashcroft’s lax oversight and Yoo’s aggressive theories opened the door to the repudiation of applicable domestic and international law and mistreatment of detainees. The article concludes that Goldsmith was both a better lawyer and a better soldier in the war on terrorism, as the failings of Ashcroft and Yoo weakened support for Bush administration policies, led to losses in the courts, and may have weakened our ability to respond to terrorism in the future.

Keywords: Department of Justice, Attorney General, Office of Legal Counsel, Opinions of the Attorney General, White House Counsel, John Ashcroft, John Yoo, Jack Goldsmith, Jay Bybee, James Comey, David Addington, September 11 attacks, new paradigm, legal ethics, Model Rules of Professional Conduct, Code of P

JEL Classification: K10

Suggested Citation

Power, Robert C., Lawyers and the War (2009). Journal of the Legal Profession, Vol. 34, 2009, Widener Law School Legal Studies Research Paper No. 11-04, Available at SSRN: https://ssrn.com/abstract=1754645 or http://dx.doi.org/10.2139/ssrn.1754645

Robert C. Power (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States
717.541.3980 (Phone)

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