Changing of the Guard: The Obama Administration, National Security, and the Ethics of Legal Transitions
63 Pages Posted: 10 Sep 2010 Last revised: 24 Sep 2015
Date Written: September 8, 2010
Expressions of disappointment in the Obama administration’s national security policies have become a familiar trope in progressive legal discourse. This article argues that both the administration and its critics underestimate the difficulty of transitions from periods of overreaching such as the immediate aftermath of 9/11, which I have analyzed in a new book, LAW’S DETOUR: JUSTICE DISPLACED IN THE BUSH ADMINISTRATION (NYU Press 2010). Efforts at transition confront powerful narratives of foreign threats, the pull of patronage for national security consultants and facilities, and a legitimate fear that today’s transition from overreaching will subject former officials to the armchair inquisitions of hindsight bias.
Transitions from overreaching in the American context succeed with the same virtues as transitions abroad: inclusion, institutional repertoire, and redress. Inclusion requires consultation with stakeholders, both inside and outside the executive branch, as well as the provision of notice that ensures continuity and fairness. Institutional repertoire allows the lawyer to consult a range of sources of legal authority. For example, a government lawyer providing advice after September 11 should read customary international law in light of United Nations resolutions passed after the attacks. The lawyer may also cite customary national security law’s canon of presidential actions ratified by Congress, including the World War II destroyer deal with Britain authorized by then Attorney General Robert Jackson. Redress contemplates a remedial pragmatism that blends formal and informal sanctions, as in the South African truth and reconciliation commissions. To illustrate the transitional legal ethics paradigm, the article analyzes the enduring presence of Guantanamo, the refusal to seek professional discipline for lawyers like John Yoo who supplied advice to the previous administration, and the proliferation of Predator drone attacks in Pakistan. By a narrow margin, the new administration has avoided emulating Yoo’s negative example. However, its management of the transition from overreaching is very much a work in progress.
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