The White House Lawyers

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Here’s Stephen J. Hadley, assistant to the president for national security affairs, this weekend on CBS’s “Face the Nation”:

The president has been very clear that we are to pursue our intelligence programs within the law.

Stephen J. Hadley, quoted in Bush Aide Defends Acts by N.S.A., The New York Times, May 14, 2006

He’s referring to the NSA’s newly disclosed practice of collecting data about all of our phone calls, but he could be talking about any number of controversies: signing statements, torture policies, CIA black sites, Guantanamo detention. We’re radio producers, not federal judges, so we aren’t qualified to determine whether any of these things are, in fact, legal, but is the administration changing what what the word “legal” means?

Whether something is “legal” or not is ultimately a subjective question, but “legal” traditionally implies some sort of confirmation: An appellate decision. A Supreme Court decision. As “science” isn’t a paper from a single PhD, but the process of peer review and repeatability that gains that paper wider currency, so “legal” isn’t the opinion of a single lawyer, but the question of whether, how and how often that opinion has been confirmed in a court of law.

With every controversy, the Bush administration has produced documents, prepared by attorneys at the White House, at Justice or Defense, averring that its actions are legal. And so it should be; you would expect any party in a controversy to have a lawyer mount a defense. But is something legal because you say it is? There was great dissent even within Justice on the question of foreign surveillance without a FISA warrant: is that process of internal debate enough, or do we need a US court to confirm what the Attorney General is telling us?

Much of how we defend ourselves as a nation is necessarily shrouded in secrecy. Is it possible, given the need for this secrecy, to determine whether our actions are legal or not? We’re taking a look tonight at a small group of lawyers, placed around several Federal departments, who have taken on the task of defending the legality of each of the administration’s decisions. Is there a common thread in the way these lawyers look at constitutional law? And is it greater than the sum of each new controversy?

Thanks to Phil Malone of the Berkman Center for Internet and Society at Harvard Law School for helping me understand what “legal” means.

Bill Minutaglio

Longtime Texas journalist

Author, The President’s Counselor: The Rise to Power of Alberto Gonzales and First Son: George W. Bush and the Bush Family Dynasty

David Cole

Legal affairs correspondent, The Nation

Professor, Georgetown Law

Noel Francisco

Lawyer, Jones Day

Associate Counsel to the President, 2001-2003

Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, 2003-2005

Sean Wilentz

Professor of U.S. social and political history, Princeton University

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  • The president has been very clear that we are to pursue our intelligence programs within the law.

    This remark reminds me so very much of the BBC comedy show of long ago, “Yes Minister” (later Yes Prime Minister), in that the technical interpretation of the remark is so obviously true. Yet it says nothing about persuing intelligence programs OUTSIDE the law. On this they are silent.

    In “Yes Minister”, whenever Humphry, the civil service worker, did not want to answer a direct question, would instead say, “What ever gave you that idea”? Never lying per se, but operationally very much lying.

    Oh how I would prefer to live under the goverment of “Yes Minister”! At least then we would have competence with the obstructionism, rather than incompetence, obstructionism and a touch of Messianic Fascism.

  • Jon

    The explanation of “legal” above presumes that a practice has had its day (or days) in court, following which opinion can be rendered. Could the guests help explain how we move forward in determining legality in the setting where members of the administration claim executive privilege to avoid answering questions from congressional oversight committees, and the power structure in congress closes off the impeachment process for examining possible executive transgression? Does this then reduce to persons directly affected by the practice having to have sufficient “standing” to bring the matter into a court of law, or are there other avenues also available to determine “legality”?

  • Was there ever a time when proscutorial (executive) interpretation of legality held much past momentary periods of crisis such as wars?

  • elidumitru

    How can you call these people “strict Constitutionalists”, when they are so contemptuous of the Constitutional guarantees of rights and balance of power?

  • mare6

    I have become so disenfranchised in these past few years. I see no pattern other than running a country without regard to the electorate or law or humanity.

    The lawyers for either side are invested with self interest. A stalemate of minutia.

    The Bu$h administration has no regard for the law of our land. It is turning into a walk loudly, carry a bigger stick and to hell with the law. (Mexico? Iran? Iraq? Privacy? Old buddies?) The lawyers merely occupy the pages of the newspapers and the airwaves as entertainment. Lawyers are self servingly ineffective.

    Hon Mare6

  • mulp

    Over and over, I keep thnking that the impetus was Bush seeking to trump Saddam who had claimed “I am the law”.

  • ebanning

    Recent polls do not support the statement that Americans 2-to-1 support having their phone records monitored, as far as I know only the first poll, conducted by the Washington Post/ABC News (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/12/AR2006051200375.html) very shortly after the story broke, delivered that result. Two subsequent polls by USA Today/Gallup (http://www.usatoday.com/news/washington/2006-05-14-nsa-reax-poll_x.htm) and Newsweek (http://www.msnbc.msn.com/id/12771821/site/newsweek/) both indicate that at least half of Americans do not approve of this monitoring.

  • Great show but I’m still lost in enigmas within enigmas. I think Prof. Wilentz has it right that perhaps this is not so much an over-reaching of the executive as a abdication by the congress.

  • mlillich

    The “War on Terror” is a metaphor – yes, it is only a metaphor – that the admistration has grasped, mangled and strangled to justify doing whatever the hell it wants to do, internationally and domestically. Pity the media that can’t distinguish metaphor from fact at this point. The only wars we’re in are Iraq and Afghanistan, and the administration started both of them.

    Talk about our country needing to upgrade science education for the next generation. What about education in civics, government, language and rhetoric? We can mitigate technological competitiveness with an enlightened immigration policy. But how do we upgrade the critical thinking and intelligence of the citizenry?

    If this administration is not criminal, what in the world does criminal mean?

    I am very discouraged.

  • ebanning

    actually, i’ve been reminded recently that we are, in fact, _not_ in a state of war — we are in no wars, congress has not declared war on anybody. It is true that in time of war the president can wield wide powers, and in light of that fact Congress _must_ declare approve his use of such powers by declaring war. An authorization to use force does not equal a declaration of war, and it scares me that the idea that it does has become so common in our public discourse …

  • ebanning:

    Interesting point.

    I think perhaps we should constantly remind ourselves of this fact, and to a small degree inoculate ourselves against the constant KKKarl Rove War Drum. Pre-pend each statement about the “war” with, “Since we are not at war, I think _____ is appropriate.”

  • Geoff Davenport

    This has been brought up before, but I’ll raise it again. It’s difficult to have a good discussion when you pit a partisan pundit against a moderate — particularly a professor-type. In case people didn’t notice, Noel Francisco was the partisan talking head on this show. By frequently repeating the same few phrases, such as “narrowly tailored, “well within the law,” and “modest proposals,” he seems to be reading straight off of Karl Rove’s talking points. Brendan could probably do him up like he did McClellan (“One Right Thing”), with similar results.

    I know it is hard to confront a guest when they fall into propagandistic rhetoric, but I was impressed recently when Jim Lehrer dealt with a similar problem. On May 11 2006, he interviewed Sen. Kit Bond (Republican, MO) and Sen. Patrick Leahy (Democrat, VT) on the NSA phone database. Bond repeatedly asserted that simply talking about the issue jeopardized US security, making us vulnerable to attack.

    – Bond’s answer to first question: “And the first point I would make is every time we have a leak of classified information like this, it makes us significantly less safe… The more we talk about it, the less safe we are.”

    – Bond’s answer to second question: “First, every time we get something on the record, we are making our country less safe… So every time we talk more about it, then they know more about how to avoid it.”

    – Bond’s answer to third question: “But the more we talk about it in public, the more our country is in danger. And we are much more likely to have a terrorist attack since the discussion of this program has begun.”

    Finally, Lehrer called him on it. But he did so in an impressively graceful way. First, he invited Leahy to respond directly to this rhetoric: “That’s what I wanted to ask Senator Leahy. I wanted to — Senator Leahy, what about Senator Bond’s point? He’s made this two or three times now that just talking about this, the public disclosure in the USA Today, and I guess even the discussion we’re having now, is endangering U.S. security?” When Leahy didn’t respond very strongly (to my own surprise), Lehrer pressed the point further: “But he’s saying just the opposite. He’s saying this is making it un-safer, the public disclosure.” Leahy’s response was still weak. But even if Leahy was incompetent at challenging the rhetoric, at least Lehrer made a point of bringing the rhetoric to the forefront of the discussion.

    I would like to see more journalists call attention to the fact that many conservative interviewees end up repeating talking-points ad nauseum. I understand the importance of being respectful to guests, but it is also important to point out that this type of propagandist rhetoric is disrespectful both to interviewers and to the listener/viewer/reader/public.

    You can read a transcript of the Lehrer interview at http://www.pbs.org/newshour/bb/fedagencies/jan-june06/nsa_5-11.html. Here, you can also stream audio or video of the interview.

  • Geoff Davenport

    Post Script: I’m not suggesting that Chris was soft on Noel Francisco. Chris did, after all, say that by his reckoning the NSA policies violate the law. My point is to highlight how common it is for conservative pundits to repeat poorly substantiated views over and over, and how difficult and oncommon, yet important it is for journalists specifically to highlight the rhetorical tricks these guys are using.

  • Larry West

    Geoff–Thanks for the point about a pundit who repeats a ‘talking point’ while not contributing to the dialogue.

    I am most disturbed about using a ‘war on terrorism’ as justification for chilling open discussion on policies and ethics. Wars are declared by Congress against specific enemy countries or at least real people. Wars on drugs, poverty, or crime are perennial challenges to societies, not meant to be taken as reality or the basis of rational thought.

    I believe Professor Wilentz raised the point that if we must have some way of talking about the legitimacy and ethics of the Bush administration tactics. Lawyers are hired to advocate for their clients. Certainly, the white house lawyers are going to do whatever it takes to please their boss and deflect calls for accountability as long as they can get away with it.

  • I missed this show– and I forgot to press beforehand to push Francisco on the “it’s just a goddamned piece of paper” philosophy, per last week’s show on signing statements. Did it come up?

  • shoshm

    Something that I think needs to be added to the discussion about the questionable right of the government to compile our phone numbers and the numbers we are calling is: how is the government going to use this information. Bush said that ‘innocent’ Americans had nothing to fear about this program. Who is going to define ‘innocent’?

    Several years ago Rumsfeld and the administration was suing Greenpeace based on some law from, I think, the early 1800s, that had been passed because of pirate ships on the coast stopping and stealing from other ships. The action by the government was largely seen as trying to backrupt Greenpeace, whom Rumsfield called a terrorist group.

    So, if the Bush administration decides someone is not an ‘innocent’ American, how is this phone database going to be used?