A Paper Topic

by David Fontana

One thing that I have long wondered about is why certain legal offices within the federal government become more political than other offices. Why, for instance, has the Office of Legal Counsel in the Department of Justice become more political, or so it seems, than the Office of Legal Advisor in the Department of State? Why have Inspector Generals (think of Glenn Fine) remained relatively neutral (and yet still so powerful)? There has been some articles written on this topic, but not enough.

Calling all students looking for law review note topics……..


5 Responses

  1. Or so it seems?

    It seesm to me that both offices are up to their necks in a criminal conspiracy to commit crimes against peace, war crimes, and crimes against humanity in exactly the same sense that Nazi Germany committed such crimes. I don’t see any reason to suppose either office has any legitmate purpose whatever under the current administration: their only real function is to implement the political agenda of the political criminals they serve, and both operate under the supervision of David Addington outside official channels. Neither office has any purpose other than politics — indeed, to the criminals of this administration, the law itself has no other purpose: it’s a tool you manipulate to maximize your power and a weapon you use to impose your will.

  2. Interesting questions as always, David. To speak to your first question, I think there are many possible explanations. Some have to do with general bureaucratic features — e.g., the relative size of the offices, which partially explains the likelihood that an average attorney’s service will span administrations. Some have to do with the substantially different character of the assignments — e.g., the so-called dedoublement fonctionnel (sp?) of diplomats and their kin, which (broadly speaking) tends to make those active in international affairs attentive to the relationship between the kinds of claims that could be made by their state and those that might be made against it . . . which is kind of chastening in its effect. These are gross generalizations, of course.

    P.S. Speaking of which, I wonder if there should be a Gittings Corollary to Godwin’s Law.

    P.P.S. In the interest of disclosure, I write as a proud, if short-term, alum of the Office of the Legal Adviser. And as a semi-proud colleague of David Fontana.

  3. Inspector Generals can write neutral reports but that does not lead to anything being done unless the Secretary or Attorney General wants to do it. The Office of Legal Adviser post-Taft has not gone unscathed since Bellinger is in place.

    When one realizes how many years that Charles Gittings has been on the job trying to make persons care about these things I would prefer we apply Godwin’s law to the apologists for torture. Maybe a brisk watch of the 60 minutes tonight and the story of Murnaz Kunaf will bring back the reality of someone held 5 years in Afghanistan and Guantanamo who was innocent. Was it the electric shock, the waterboarding (a new twist hold someone’s head under water and punch them in the stomach so they have to inhale – boy you have to think of these things) or being hung in a hangar for 5 days (every six hours a doctor in complete violation of his Hippocratic Oath would come in to verify that the person could still take the torture). Then of course there are the particular cruelties of Guantanamo that he describes.

    But of course these things are not to be discussed in polite company.



  4. Ben, I think the difference arises from defining “these things,” as you put it, quite elastically. One should care intensely about incidents like that you describe — I did not see 60 Minutes — and develop legal solutions. That absolutely warrants discussion, and more power to the PEGC in that regard (though that discussion occurs, I think, beyond any one person’s salon). I see a difference between those propositions and the reductio ad Hitlerum, which is no better than the reductio al Qaedum one also sees; likewise it is neither well-informed nor clarifying to assert that various legal offices have no purpose other than politics. To stick to the original topic for just a sec, it’s hard to see how one advances understanding of the conditions under which legal advice is rendered by blithely asserting, say, that everyone paid by the Treasury to write memos is either a war criminal or a fellow traveler. I grant you, though, that a student note to that effect would be interesting.

    To avoid further derail here, please feel free to contact me off-line if you wish to continue this.

  5. Fair enough. I will go off line.



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