The National Security Lawyer, in Crisis: When the 'Best View' of the Law May Not Be the Best View

82 Pages Posted: 15 Mar 2017 Last revised: 31 Mar 2017

See all articles by Bob Bauer

Bob Bauer

New York University School of Law

Date Written: March 1, 2017

Abstract

The Department of Justice’s Office of Legal Counsel has committed to certain principles for the conduct of its legal advisory function, one of which is a commitment to providing the executive a “best view” of the law while nonetheless “facilitating” where possible the executive’s policy objectives. The standard is closely related to a conception of the Office’s standing, developed after Watergate in the Carter Administration, as a source of fully independent legal advice insulated to the maximum extent possible from political and policy pressure. This adherence to “best view” has been the source of considerable comment and criticism when the Office has appeared to depart from this standard in supplying the executive with legal positions that may qualify as “reasonable” or “plausible” but fall manifestly short of what scholars and other observers judged to be the best possible reading of the law.

This Article questions the “best view” as a standard that should bind the OLC, or any other senior legal advisers, in advising the executive in a national security crisis. It challenges the best view theory both as an empirically unsustainable account of how lawyers in fact perform in a crisis setting, and as a theoretically unjustified constraint on the range of legal options that a president’s legal advisers should be expected to offer. Among the criticisms is the absence of a fully coherent conception of “best view,” and the risk that best view claims mask what are less legal, and more policy, disagreements. The Article sets out an alternative of legal positions grounded in reasonable, good faith readings of the law, subject to thoroughgoing transparency requirements.

One consequence of this revised view of crisis lawyering is that it is no longer clear that OLC should have the primary if not decisive role in determining the lead advice that the executive should receive when confronting a critical national security challenge. An alternative decision-making model would assure that OLC views are considered but would allow for a crisis management structure with different leadership on legal issues, including but not limited to the Counsel to the President, and closer, more open dialogue between lawyers and policy makers. The Article insists that the key to the executive checking function is a detailed public accounting of the legal advisory structure established to support the president’s decision-making in crisis and of the substance of the Administration’s formal legal position.

Apart from an assessment of the literature and expositions of “best view,” the Article draws on historical and contemporary sources that aid in a dispassionate analysis of the response of lawyers to policy and political pressure in crisis. One such source is the historical record of the functioning of the executive’s legal advisory process in two major national security crises: the bases-for-destroyers exchange with Great Britain intended to shore up that country’s defense against the German military onslaught, and the Cuban Missile Crisis of 1962. Primary source materials, including memoirs and documents authored by senior legal advisers, supply useful insight into the challenges of crisis lawyering. A second source are senior national security lawyers who have served in recent Administrations and who agreed to be interviewed for this Article about their personal experience with the conflicts between “best view” and the responsibility to advance where possible the executive’s policy objectives.

Suggested Citation

Bauer, Bob, The National Security Lawyer, in Crisis: When the 'Best View' of the Law May Not Be the Best View (March 1, 2017). NYU School of Law, Public Law Research Paper No. 17-08. Available at SSRN: https://ssrn.com/abstract=2931165 or http://dx.doi.org/10.2139/ssrn.2931165

Bob Bauer (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=36322

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