Advising Presidents: Robert H. Jackson and the Problem of Dirty Hands

Abstract

Not so long ago, legal advice given to President George W. Bush regarding torture sparked considerable controversy, and discussions were frequently distorted by rancorous partisanship. This essay uses advice given to President Franklin Roosevelt by Attorney General, later Justice, Robert Jackson as a laboratory for exploring the ethical dimensions of the advisory relationship between government attorneys and the President. In particular, this essay examines the President’s unilateral decision in 1940 to transfer fifty destroyers to Great Britain. That Destroyers Deal is distant in time and now relatively uncontroversial. Today, everyone agrees with the substantive policy of helping the British against Nazi Germany, and we have all but forgotten the partisan divide between Roosevelt and the Republicans. The parallax between torture today and helping the British in 1940 enables us to factor partisanship and substantive policy more or less out of our judgment.

To facilitate the Destroyers Deal, Jackson wrote a legal opinion for the President that Jackson knew was contrary to law. I have concluded that Jackson did the right thing, and this essay explains why. In particular, I draw upon but modify Michael Walzer’s well-known exploration of the problem of dirty hands. The latter part of the essay applies the lessons gleaned from Jackson’s experience to the advice regarding torture that President Bush received from his attorneys. On balance, I conclude that President Bush’s lawyers did the wrong thing, but I explain why others might disagree.

Keywords: advisory opinons, attorney general, constitutional law, dirty hands, Franklin D. Roosevelt, government attorneys, legal advisors, legal ethics, OLC, Office of Legal Counsel, presidents, professional responsibility, Robert H. Jackson, rule of law, seperation of powers, torture, World War II

JEL Classification: K00, K19, K39