Professionalism and Power: Flawed Decision Making by the OLC Exposes a Bar that is Losing its Moxie

In recent years, legal scholars and practitioners alike have expressed major misgivings about the advice that the Department of Justice’s Office of Legal Counsel (OLC) provided to former President George W. Bush following the attacks of September 11, 2001. On February 19, 2010, House Judiciary Committee Chairman John Conyers Jr. released internal communications of the Justice Department that uniformly and definitively discredit – in multiple and material aspects – the OLC’s now-infamous August 1, 2002, “torture memoranda”. The debate about what the OLC got wrong is over. It is time to consider what went wrong with the OLC. As much as has been written decrying the substandard work the OLC produced, the reasons that ostensibly talented and learned lawyers produced it remain imprecisely explained or ignored. The attorneys who served in the Bush Administration’s OLC, to a greater extent than not, are still considered to be some of the finest legal minds in the United States. Yet, they produced fundamentally and seriously flawed work product that even their staunchest defenders have disavowed. How can this be? The answer is that a disquieting zeitgeist has pervaded the highest reaches of the legal profession and academy. The view of many is that the Bush administration’s OLC brilliantly produced fundamentally flawed work in order to support the aims of the executive. That view conveniently places the locus of responsibility for error-ridden legal memoranda on the nominal “clients” the OLC served. However, it elides a truth that must not be forgotten: an attorney must be of service, but never servile. An attorney is not just the implementer of a client’s wishes. This notion may seem antiquated, but the professional independence of attorneys is not passe. An able and ethical attorney must advise a client to refrain from doing wrong, and refuse to take any part in the ways of a client who will not follow that advice. An able and ethical attorney may even breach the confidence that is the hallmark of her profession to expose preemptively and thereby thwart a client’s contemplated wrongdoing. She thus wields power to uphold the law, and she must at least attempt to use that power to dissuade her client from going forward with untoward plans. However, prominent client-malefactors, whose prominence makes their wrongs especially consequential, have little to fear from their well-compensated attorneys. In corporate America, the executive is king, and kings more often than not task lawyers to produce legal work just as any other commodity is produced: without the measure of independence, self-reflection, and courage that the integrity of their profession demands. The predilections of the nominal “clients” the OLC served, servilely, mirrored the mores of that corporate milieu. The academic community cannot disclaim its share of responsibility for fostering this ebbing of independence at the highest levels of the legal profession in the United States. Institutions of legal education must begin the process of restoring the status of an attorney to her rightful role as an independent voice among the highest echelons of authority.