Will Taft on Lawyers and Policymakers

It was the lawyers from the Department of Justice who pressed for a determination that the Conventions and other standards of international law and practice did not govern the conflict. Bearing an abstract hostility to international law, developed in the sheltered environment of academic journals, and equally unfamiliar and unconcerned with our broader policy interests in promoting respect for the rule of law among states as well as within them, these lawyers proposed to create a regime in which detainees were deprived of all legal rights and the conditions of their treatment were a matter of unreviewable executive discretion. Why lawyers, of all people, should want to establish the point that such a lawless regime could legally exist, even as a theoretical matter, much less recommend that one actually be created, is, I confess, beyond me, and in itself it a sad commentary on the extent to which sophistry has penetrated what used to be widely regarded as an honorable and learned profession. . .



The nation’s foreign policy on which our liberty and prosperity depend, then, instead of being the product of a careful review of our national security requirements, our relations with other states, and our long-term interests, became simply the occasion for lawyers with but slightexperience in and no responsibility for these matters to obtain official endorsement of an exotic legal proposition. Even if the proposition had been correct, which the Supreme Court determined it was not, this abstract exercise would have been a mistake. Of course, it’s important to know what the law is, but it’s even more important to know what it is in your interest to do. When you know that, it is time to ask the lawyers whether it is lawful, and if it is, you go ahead with it. This is the way foreign and national security policy have generally been made and carried out in the past, and international law has developed consistent with state practice determined by policymaking officials.