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

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: 2007

Abstract

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

Margulies, Peter, When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy (2007). Fordham International Law Journal, Vol. 30, p. 642, 2007, Roger Williams Univ. Legal Studies Paper No. 44, Available at SSRN: https://ssrn.com/abstract=965171

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

10 Metacom Avenue
Bristol, RI 02809
United States

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