When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy
FORDHAMINTERNATIONAL LAWJOURNAL
Fordham International Law Journal
Peter Margulies
-
2006
Article 9
Copyright c 2006 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
When to Push the Envelope: Legal Ethics, the
Rule of Law, and National Security Strategy
Peter Margulies
This Article argues for pushing the envelope when three conditions are met: (1) the executive
engages in dialogue with other players, either before the fact or through timely ex post
ratification; (2) pushing the envelope will generate a net positive aggregate of institutional consequences,
viewed from an intermediate and long-term perspective; and (3) pushing the envelope harmonizes
executive policy with evolving international or domestic norms. When these conditions are met,
the lawyer for the executive should recommend the action, even if it appears inconsistent with the
letter of existing law. While acting gives both the lawyer and her client “dirty hands,” a failure to
act may expose the United States to even greater risk. When the executive is unable or unwilling to
meet all of these conditions, however, approving the proposed action places the lawyer in ethical
peril. Part I of this Article discusses the adverse effects of detention policies on legal ethics and
the integrity of the justice system. Part II uses a broader lens to describe costs to the United States’
credibility and reputation. Part III sets out the test for pushing the envelope, and discusses two
examples from history: Lend-Lease and the Cuban Missile Crisis. The goal of this Article is to show
that legal ethics in national security strategy must reject absolutes. A blind aggrandizement of
executive power will pose ethical and policy problems. A risk-averse position that avoids pushing
the envelope, however, can also pose dangers. Judgment, not a categorical approach, is necessary
to discern the most prudent path.
Peter Margulies*
Lawyers in national security matters face a perennial
dilemma. On the one hand, an unyielding respect for the letter of
the law does not mix well with national security strategy. Courts
have long recognized that a doctrinaire absolutism about legal
commands cannot accommodate the fluidity of foreign policy.'
Moreover, a preoccupation with clean hands may prevent the
politician from making difficult choices that ensure survival.2
On the other hand, lawyers and other policymakers in the
national security realm must also uphold core legal principles and
preserve the integrity of legal institutions. Too often, lawyers in
national security crises have skewed this calculus toward
expediency, without paying sufficient attention to abiding values.'
This loss of equipoise is especially acute where, as in the
case of Guantanamo, policies entail detention without trial. U.S.
history has shown that regimes of mass detention undermine the
legal system's values. A number of sorry episodes, most notably
* Professor of Law, Roger Williams University. I thank Laura Corbin for her
enterprising and resourceful research assistance, and John Barrett, Bruce Green, David
Luban, and participants at a workshop at Roger Williams Law School for comments on
the internment ofJapanese-Americans in World War II,'
demonstrate that detentions develop an institutional momentum that
undermines accountability, fairness, and equality. This Article
offers a framework for determining when pushing the envelope
in national security crises is justifiable as a matter of law and
legal ethics.
This Article argues for pushing the envelope when three
conditions are met: (1) the executive engages in dialogue with
other players, either before the fact or through timely ex post
ratification; (2) pushing the envelope will generate a net positive
aggregate of institutional consequences, viewed from an
intermediate and long-term perspective; and (3) pushing the
envelope harmonizes executive policy with evolving international or
domestic norms. When these conditions are met, the lawyer for
the executive should recommend the action, even if it appears
inconsistent with the letter of existing law. While acting gives
both the lawyer and her client "dirty hands," a failure to act may
expose the United States to even greater risk. When the
executive is unable or unwilling to meet all of these conditions,
however, approving the proposed action places the lawyer in ethical
peril.
Part I of this Article discusses the adverse effects of
detention policies on legal ethics and the integrity of the justice
system. Part II uses a broader lens to describe costs to the United
States' credibility and reputation. Part III sets out the test for
pushing the envelope, and discusses two examples from history:
Lend-Lease and the Cuban Missile Crisis. The goal of this
Article is to show that legal ethics in national security strategy must
reject absolutes. A blind aggrandizement of executive power will
pose ethical and (...truncated)