When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy
41 Pages Posted: 26 Feb 2007 Last revised: 17 Sep 2015
Date Written: 2007
National security lawyers regularly encounter situations where pushing the envelope of international or domestic law seems expedient, desirable, or even necessary. As the present situation at Guantanamo demonstrates, in cases involving the authorization of regimes of detention or interrogation, pushing the envelope can have deeply problematic results. Discounting or disregarding international and domestic norms can erode the integrity of the legal system, lawyers' ethics, and the credibility of the United States around the world. In some cases, however, pushing the envelope may be the appropriate course. The lawyer's guideposts in this uncertain realm where legal doctrine and statecraft meet should be the importance of dialogue, institutional consequences, and harmonization with evolving norms. The paper argues that decisions such as the Emancipation Proclamation, Lend-Lease, and the response to the Cuban Missile Crisis meet these criteria.
Keywords: National Security Law, Law and Terrorism, International Law
Suggested Citation: Suggested Citation