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Peter Margulies

Document Type

Article

Abstract

A Predator drone attack in Pakistan and the "enhanced interrogation techniques" that the Bush administration used on suspected terrorists have at least one thing in common: legal advice. While advice given the Obama administration on drones has received only a partial airing, disclosure that lawyers in the Justice Department’s Office of Legal Counsel (OLC) authorized coercive interrogation after 9/11 has ignited a wide-ranging debate on reform and accountability. However, the volume of calls for reform has exceeded consideration of the competing values at stake. Some reformers stress the need to combat a climate of impunity with formal sanctions such as disbarment and damages. Advocates of structural reform, such as Bruce Ackerman, view sanctions as small change, and urge OLC’s makeover as an adjudicative body. Veterans of OLC reject these dramatic steps. They caution that structural changes could threaten the separation of powers. Structural changes could also detach OLC from its clients in the executive branch, transforming it into a stately mansion that requires too much maintenance to use. OLC veterans urge more measured changes, including greater transparency and a renewed commitment to stare decisis. After assessing these reform proposals, this paper suggests a model of dialogic equipoise to shape both the substance of OLC opinions and OLC’s deliberative process. While a structural makeover would actually weaken the rule of law, OLC resembles a court in its need to conserve institutional capital with two audiences: the legal community and the President. OLC can issue opinions that authorize robust responses to national security and humanitarian crises, if the President seeks ratification of executive action. To conserve OLC’s institutional capital, the model caps legal advice that expands presidential power. Just as courts preserve institutional capital with devices such as standing, mootness, and political questions, a cap will prompt OLC to marshal its institutional capital for those occasions when no alternatives will do the job.

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