Bad Advice: Bush's Lawyers in the War on Terror

by Harold H. Bruff

Overview

From wiretapping American citizens to waterboarding foreign prisoners, the Bush administration has triggered an uproar over its tactics in the War on Terror—and over its justifications for using them. Through a close study of the legal advice provided to President Bush, former Justice Department attorney Harold Bruff provides an incisive and scathing critique of those justifications, which he finds at odds with both American law and moral authority.

Bruff rigorously examines legal opinions regarding NSA surveillance, the indefinite detention of terror suspects, the denial of Geneva Convention protection, trial by military commissions, and suspect interrogation techniques. He shows that Bush's claims of executive power exceed anything found in U.S. history or judicial precedent, that clear statutory limitations were treated with contempt, and that Bush and his lawyers strove to exclude both congressional and judicial participation in setting antiterrorist policy.

Bruff dissects the legal underpinnings employed by John Yoo, David Addington, Alberto Gonzales, and others to defend an inflated view of presidential power, showing how they combined ideology, policy advocacy, and selective readings of legal precedent to bolster executive actions. Most important, he brings into sharp focus legitimate counterarguments from the State Department, the Pentagon, and the Office of Legal Counsel that challenged or refuted these legally suspect views and yet were largely ignored or even ridiculed by the president's advisers. Offering contrasts with the legal advice provided previous presidents, he also reviews the fundamental constitutional limits on executive action and the principles of professional responsibility that govern lawyers when they counsel government clients.

As Bruff observes, bad advice to presidents is never in short supply, but legal advice should be objective and reliable. His book points up the urgent need for advisers to serve both the president and the nation by finding a middle ground between limiting presidential power and allowing it the flexibility it needs to respond to crises. Both highly readable and authoritative, it is a must for legal scholars and an eye-opener for every citizen concerned with preserving our nation's commitment to the rule of law.

Product Details

ISBN-13:	9780700616435
Publisher:	University Press of Kansas
Publication date:	04/14/2009
Pages:	412
Product dimensions:	6.30(w) x 9.50(h) x 1.30(d)

About the Author

Harold H. Bruff is Charles Inglis Thomson Professor of Law at the University of Colorado at Boulder. A former senior attorney-adviser to the Office of Legal Counsel at the Department of Justice, he is also the author of Balance of Forces: Separation of Powers Law in the Administrative State.

Table of Contents

Acknowledgments

Introduction

Part I. Right and Conscience

1. The Dilemma of the Executive Adviser

2. The President's Lawyers in the Formative Years

3. The President's Lawyers in the Institutional Presidency

4. The Professional Responsibility of the President's Lawyers

5. Competing Visions of Executive Power

Part II: Bad Advice

6. The Bush Administration Declares War on Terrorism

7. Surveillance by the National Security Agency

8. Indefinite Detention of Enemy Combatants

9. Escaping Geneva

10. Military Trials for War Crimes

11. Interrogation

12. Advice Begets Action: From OLC to Abu Graib

13. Better Advice

Notes

Bibliography

Index

Editorial Reviews

"This book is a thorough and thoughtful consideration of an age-old problem made manifest during the Bush

presidency in the ‘War on Terror.’ It should appeal to both constitutional scholars and a general public seeking to understand what went wrong during this time period."—Congress & the Presidency

"Provides considerable insight into the Bush legal processes. . . "—Reviews in American History

"Bruff has written an extraordinary book—nuanced, balanced, and meaty. . . . The legal answers that a lawyer may give in ‘right and good conscience’ to political leaders in the war against terrorists are ultimately a matter of wisdom, prudence, or judgment, virtues sorely needed but largely lacking today in public life. Bruff’s book is worth the read."—Review of Politics

"A timely and extremely useful study of the legal advice given to the Bush administration during its prosecution of the War on Terror. A very valuable book well worth reading."—American Review of Politics

"Bruff’s important book ... is an indictment of Bush’s legal advisers and the president himself. As such, it may be dismissed in some quarters as partisan, but the reality is that Bruff’s book very skillfully advances several case studies of poor legal advice in the Bush administration—in particular, advice regarding the war on terror, surveillance by the National Security Agency, enemy combatants, and military trials for war crimes. ... Succeeds admirably at the microlevel of case study as well as at the macrolevel of constitutional theory. Highly recommended."—Choice

"[An] engrossing book. . . . Based on his sober and comprehensive study, Bruff convincingly concludes that to a man, ‘[i]gnoring the need for detachment and lacking a willingness to consider constitutional claims of the other branches, President Bush’s lawyers manipulated the law for political ends’. . . . Bad Advice provides a lucid and compelling legal indictment against Yoo and the others who regrettably gave their leader the advice he wanted instead of the advice he needed."—LA Lawyer Magazine

"Harold Bruff’s interesting book represents a detached, even-handed analysis of the process of legal advising within the Bush Administration, with the benefit of enough hindsight to see how the consequences of the advice have played out. Bruff, a specialist in the law of separation of powers . . . , formerly served in the OLC and writes perceptively about the perennial tension facing legal advisers to the executive. . . . Bruff does an excellent job of giving a brief but cogent summary of the analytical mistakes in [the OLC lawyers’] memos."—Legal Ethics

“A masterful and timely study. Bruff explains how and why top lawyers in the Bush administration decided to manipulate the law for political ends. He also provides thoughtful and seasoned advice on how to restore our constitutional government.”—Louis Fisher, author of The Constitution and 9/11

“An important book of astonishing breadth. With lucid and compelling prose, Bruff brilliantly exposes the flawed reasoning in the legal opinions supporting Bush policies in the war on terror.”—Nancy V. Baker, author of General Ashcroft: Attorney at War

“A wonderfully written and compellingly readable book—for legal scholars but also, and really more importantly, for our fellow citizens.”—Sanford Levinson, author of Constitutional Faith

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