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.