When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy

This Article argues for pushing the envelope when three conditions are met: (1) the executive engages in dialogue with other players, either before the fact or through timely ex post ratification; (2) pushing the envelope will generate a net positive aggregate of institutional consequences, viewed from an intermediate and long-term perspective; and (3) pushing the envelope harmonizes executive policy with evolving international or domestic norms. When these conditions are met, the lawyer for the executive should recommend the action, even if it appears inconsistent with the letter of existing law. While acting gives both the lawyer and her client “dirty hands,” a failure to act may expose the United States to even greater risk. When the executive is unable or unwilling to meet all of these conditions, however, approving the proposed action places the lawyer in ethical peril. Part I of this Article discusses the adverse effects of detention policies on legal ethics and the integrity of the justice system. Part II uses a broader lens to describe costs to the United States’ credibility and reputation. Part III sets out the test for pushing the envelope, and discusses two examples from history: Lend-Lease and the Cuban Missile Crisis. The goal of this Article is to show that legal ethics in national security strategy must reject absolutes. A blind aggrandizement of executive power will pose ethical and policy problems. A risk-averse position that avoids pushing the envelope, however, can also pose dangers. Judgment, not a categorical approach, is necessary to discern the most prudent path. WHEN TO PUSH THE ENVELOPE: LEGAL ETHICS, THE RULE OF LAW, AND NATIONAL SECURITY STRATEGY