National Security Lawyering: The Best View of the Law as a Regulative Ideal

In The National Security Lawyer in Crisis: When the “Best View” of the Law May Not Be the Best View, Robert Bauer describes the challenges for executive branch lawyers providing advice during a national security crisis. Bauer focuses on two especially perilous episodes in United States history—the Cuban Missile Crisis and the run-up to U.S. involvement in World War II—and analyzes the legal advice Presidents Kennedy and Roosevelt, respectively, received. In both cases, widely respected lawyers gave legal advice that supported the President’s preferred outcome, but almost certainly did not represent what the lawyers considered the best view of the law. The “best view” model of lawyering appears to have no formal or widely recognized definition, either in Bauer’s article or elsewhere in the literature. Perhaps the best articulation of the concept is in the memorandum that sets out the “best practices” for the Department of Justice’s Office of Legal Counsel (OLC), which directs OLC lawyers to “provide advice based on [their] best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position proposed by an agency or the Administration.” In rendering this advice, they must seek “to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.” Bauer takes a dim view of this best view model, which he considers rigid, disconnected from important policy context, and unworkable in a crisis. Bauer proposes an exception to the best view approach for lawyers facing a national security crisis. Lawyers under those circumstances, he argues, should be free to provide alternative legal analysis that supports the preferred policy position, so long as it is credible and made in good faith. Bauer’s proposal to create an exception to the best view standard for crises, however, risks compromising the quality of national security lawyering overall. National security lawyers in the Executive Branch practice in an environment without many of the formal and informal incentives for high-quality legal advice that are common in other fields. The stakes are unusually high, which increases pressure from policymakers. At the same time, there is less external oversight from the courts and Congress, and the secrecy of much of the subject matter makes peer and public input difficult. Because of these challenges, it is important to build into the process of developing national security legal advice as many protections for high-quality legal analysis as possible. The best view standard is such a protection, and a critical one. The best view standard is important to high-quality national security lawyering not because it always results in an objectively “right” legal answer—that is not possible. Instead, the best view standard acts as a guidepost—a regulative ideal— for lawyers, reminding them of their distinctive role in the process and grounding them with an external professional standard. It serves as a counterweight to the inevitable pressures that these lawyers face. It also honors and upholds the unique responsibilities of Executive Branch lawyers to assist the President in carrying out his constitutional responsibility to see that the laws are faithfully executed. Bauer’s proposal to recognize a lower standard in crisis situations would subvert this protection