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Tully, Stephen --- "Getting it Wrong or Being Ignored: Ten Words on Advice for Government Lawyers" [2009] NZYbkIntLaw 3; (2009) 7 New Zealand Yearbook of International Law 51

Last Updated: 14 April 2013



Stephen R. Tully*

“There are two things wrong with most legal writing. One is style. The other is content.”1

The question for this paper is whether any standards can be formulated to assist international legal advisers employed in government service when requested by decision-makers to advise on an international legal question. The answer is yes. A legal advice constructed along “principled” lines in accordance with certain normative criteria offers opportunities for lawyers to ensure that decision-makers make foreign policy decisions consistent with international law.

Part One outlines classical conceptions on how international lawyers interact with decision-makers. Lawyers may collaborate in violating international law in pursuing national interests, at the risk of “getting it wrong”, or might resist prevailing policy trends to no avail, thereby risking “being ignored”. The content and manner of crafting an advice is typically overlooked. Part Two proposes ten normative principles to inform the construction of an advice so that lawyers are more likely to offer correct advice and be heard by decision-makers. These standards are developed primarily from the personal accounts of US and English lawyers drawn from three case studies: the use of torture when interrogating detainees in 2002, using force against Egypt on the basis that nationalisation was incompatible with the Suez Canal Convention in 1956 and reviving the authorisation under a prior Security Council Resolution to use force against Iraq in 2003.2 The ten normative criteria proposed by this paper intend to guide lawyers when addressing difficult questions, ensure the provision of accurate advice, maintain their legal functions and increase the likelihood of decision-makers complying with international law.

I. International Law, Lawyers and Legal Advice

International law’s influence over foreign policy remains a perennial question. International law can be a “fig leaf ” enabling States to exercise power without regard to law, a “straight-jacket” which law-abiding States gladly don to bridle power with law, or an element which enables law to influence

* NSW solicitor, to whom all views are attributable. Sincere thanks to Grace Ma, Rey Hyland, Karen Scott and an anonymous referee for their very helpful personal comments.

1 F Rodell “Goodbye to Law Reviews” (1936) 23 Va L Rev 38.

2 These examples are used, not because they reflect the typical practice of these States, but because they are topical, well-known and adequately documented. Reference will also be made to other examples where useful.


but not outrank power.3 Across a spectrum in which international law may constrain decision-makers, only at the “extreme end” does international law prevail.4 Nevertheless, international law is invariably cited by decision-makers to justify their preferences.5

Within this milieu, the role of lawyers, and especially government lawyers, has received some attention. The literature addresses well-recognised institutions, including the Office of the Legal Adviser (OLA) within the US State Department or the Foreign and Commonwealth Office (FCO), or particularly noteworthy episodes.6 The tasks performed by government lawyers generally correspond irrespective of nationality.7 On the international plane they negotiate treaties, participate within intergovernmental organisations and pursue litigation before international courts and tribunals.8 Nationally, government lawyers advise decision-makers, officials and government departments.9

A distinction is typically drawn between a lawyer’s advisory function and their advocacy role.10 One recurring theme is that lawyers are both “umpires” and “players”,11 or, put another way, “sometimes judge and sometimes advocate”.12 As umpire, lawyers provide a candid and accurate

3 M Sapiro “The Politics of International Law and the Law of International Politics: An

American Perspective” (2005) 23 Wis Int’l LJ 49 at 49.

4 Mr Matheson “Department of State Legal Advisers’ Roundtable” in M Scharf and P Williams Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (Cambridge University Press, New York, 2010) 147 at 155 [Scharf

& Williams].

5 A Chayes The Cuban Missile Crisis: International Crisis and the Role of Law (Oxford University

Press, Oxford, 1974) at 7.

6 J Outland Law and the Lawyer in the State Department’s Administration of Foreign Policy (Syracuse University, New York, 1970); I Sinclair “The Practice of International Law: The Foreign and Commonwealth Office” in Bin Cheng (ed) International Law: Teaching and Practice (Stevens & Sons, London, 1982) 123; E Williamson “International Law and the Role of the Legal Adviser in the Persian Gulf Crisis” (1991) 23 NYU J Int’l L & Pol 361. See also H Burmester “The Role of the International Law Adviser” (1997) Int’l L & Aust Security 157.

7 H Corell “Third Legal Advisers’ Meeting at UN Headquarters in New York” (1993) 87 AJIL

323 at 324. See generally C Wickremasinghe (ed) The International Lawyer as Practitioner (The British Institute of International and Comparative Law, London, 2000); R MacDonald “The Role of Legal Adviser of Ministries of Foreign Affairs” (1977-III) Recueil des Cours 377; H Merillat (ed) Legal Advisers and Foreign Affairs (Dobbs Ferry, New York, 1964). Lawyers employed by international organisations raise particular issues, on which see H Merillat (ed) Legal Advisers and International Organizations (Oceana Publications, New York, 1966).

8 P Allott “The International Lawyer in Government Service: Ontology and Deontology” (2005) 23 Wis Int’l LJ 13 at 13; S Yachi “The Role of the Treaties Bureau of the Ministry of Foreign Affairs in Japan’s Foreign Policy Decision-Making Process” (1988) 31 Japanese Annual Int’l L 82.

9 J Gutteridge “Foreign Policy and the Government Legal Adviser” (1972) 2(2) Ga J Int’l & Comp L 71 at 71.

10 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 60, lines 8-12 (Sir Michael

Wood); Scharf & Williams, above n 4, at 17, 207-8.

11 O Schachter “The Invisible College of International Lawyers” (1977) 72 Nw UL Rev 217.

12 H Darwin “Foreign Policy and the Government Legal Adviser” (1972) 2(2) Ga J Int’l & Comp L 85 at 87.

assessment of the legal situation, advise on the legality of proposed action and analyse the consequences of violations. As advocate, lawyers devise post-facto justifications for decisions made and construct the best possible defences.13

To return then to the question posed at the outset, lawyers may be

considered wholly irrelevant to foreign policymaking, as having positive impacts (ensuring that decision-makers comply with international law), having negative influences (cloaking decision-making with a veneer of legitimacy) or actively enabling legal violations. The relationship between lawyers, international law and foreign policy is commonly reduced to a simple binary narrative. On the one hand, lawyers are bedfellows with decision- makers, strategically deploying arguments in pursuing national interests and circumventing legal norms. A lawyer assists decision-makers to solve practical problems.14 On the other hand, lawyers risk being overlooked as decisions are made, including in violation of international law. The “valiant image” is lawyers endeavouring to “turn the ear of power away from the appeals of realpolitik and towards the claims of normativity”.15 The government international lawyer, in contrast to international lawyers in private practice or academia, is uniquely positioned as the government’s conscience, guiding difficult policy choices into lawful channels, promoting the sound development of international law and warning clients not to adopt measures which are “awful” albeit lawful.16

For example, the Chilcot inquiry is examining decision-making in the UK between 2001 and 2009 with respect to Iraq.17 One issue concerns advice on whether Security Council Resolution 1441 (2002), construed in light of Resolution 678 (1990), authorised force against Iraq without a further resolution. FCO lawyers had consistently advised that it did not. That was also understood to be the view of Attorney General Goldsmith. Although he had not issued any formal, final written opinion, Lord Goldsmith had indicated that the safest course was to secure a second resolution. On 7

March 2003, however, he concluded that a reasonable case could be made

supporting the revival argument, that is, a Security Council finding of

material breach by Iraq of Resolution 687 revived an earlier authority to

use force.18 This view became the official position.19 Prime Minister Blair

13 Mr Matheson “Department of State Legal Advisers” Roundtable” in Scharf & Williams, above n 4, at 156-7.

14 Ibid, at 151.

15 N Berman “Legitimacy through Defiance: From Goa to Iraq” (2005) 23 Wisc Int’l LJ 93 at

93-94. See also A Cassese “The Role of the Legal Advisers in Ensuring that Foreign Policy

Conforms to International Legal Standards” (1992) 14 Mich J Int Law 139.

16 H Koh “Foreword: America’s Conscience on International Law”, in Scharf & Williams, above n 4, at 14, 17.

17 All transcripts and documents cited from the Chilcot Inquiry are available at <www.>.

18 For an account of the development of the Attorney General’s advice, see Legal Secretary to the Law Officers, Disclosure Statement, Information Commissioner’s Enforcement Notice,

22 May 2006, Annex 6.

19 Foreign and Commonwealth Office, Iraq: Legal Basis for the Use of Force, 17 March 2003.

acknowledged this advice and the preference for a second resolution.20

However, he was satisfied that Iraq had materially breached its obligations and authorised military action.21

For government lawyers, interpreting Security Council resolutions raises

questions of universal interest.22 Resolutions should be drafted so that lawyers are in the best position to advise.23 For Resolution 1441, “[i]t wasn’t the uncertainty of the legal principles that was the issue, it was the uncertainty of interpretation”.24 Iraq’s invasion punctured the myth of the reasoned effectiveness of lawyers.25 Whether Resolution 1441 authorised force remains controversial. In the view of the Netherlands and Germany, for example, it did not.26 One contrary position maintains that military force was lawful but lacked legitimacy.27

These circumstances occasion critical reflection on a lawyer’s role and responsibilities. Are lawyers contributing to a larger problem ? One might say yes.28 Their inability to influence decision-makers reflects “the low estate” to which international law has sunk and a self-perception by lawyers bordering on self-abnegation.29 If one were to compare the UK’s decision to use force against Iraq with that against Egypt in 1956, little might have changed. A lawyer is “at best, the specialist in a mildly relevant aspect of statecraft and, at worst, ... a Cassandra-like purveyor of hypothetical long-term negative consequences”.30 A professionally debilitating sensibility to preserve their effectiveness is reputedly the main reason for “doing the wrong thing”.31 They also foster an “unshakeable professional habit of complicity”.32 The lawyer’s tactic of reticence and deference is such that only by “fortuitous happenstance”

20 Chilcot Inquiry, Letter from the Prime Minister’s Private Secretary to Simon McDonald, FCO, Iraq: Legal and Military Aspects, 11 March 2003.

21 Lord Butler of Brockwell, Review of Intelligence on Weapons of Mass Destruction Report of a Committee of Privy Counsellors, House of Commons Paper No 898, London, 14 July 2004 at [368]-[372].

22 B Mawhinney and K Girtel “Fourth Legal Advisers’ Meeting at UN Headquarters in New

York” (1994) 88 AJIL 379 at 381.

23 M Felix “Fifth Legal Advisers’ Meeting at UN Headquarters in New York” (1995) 89 AJIL

644 at 649.

24 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 95, lines 4-6 (Lord


25 H Charlesworth “Saddam Hussein: My Part in his Downfall” (2005) 23 Wis Int’l LJ 127 at

141, 143.

26 Davids Commission, Report on Investigation of Decision-making on Iraq, January 2010, The Netherlands; D Dettke Germany says “No”: The Iraq War and the Future of German Foreign and Security Policy ( Johns Hopkins University Press, Washington DC, 2009).

27 Chilcot Inquiry, Transcript of Proceedings, 27 November 2009, at 38, lines 9-21 (Sir Jeremy


28 For example H Koh “Protecting the Office of Legal Counsel from Itself ” (1993) 15 Cardozo

L Rev 513.

29 T Franck “An Outsider Looks at the Foreign Office Culture” (2005) 23 Wis Int’l LJ 1 at 5.

30 Ibid, at 7. See generally L Johnman “Playing the role of a Cassandra: Sir Gerald Fitzmaurice, Senior Legal Advisor to the Foreign Office” (1999) 13(2) Contemporary British History 46.

31 Frank, ibid, at 7-8.

32 Ibid, at 8.

is international law heard by decision-makers.33 But government lawyers must contribute to decision-making because “otherwise the train will leave the station”.34 They therefore choose to be “ambivalent” and “oscillating”, acting as either a marginal silent power or vocal but powerless.35 Put another way, lawyers find themselves caught between sentimental attachment to international law’s constitutive rhetoric or traditions and pervasive and professionally-engrained doubts about their own utility.36

This article argues that government lawyers, by virtue of their position, can ensure that international law is considered by decision-makers, even if not ultimately followed. The opportunity arises when providing advice on contemporary international legal questions. The received wisdom - that lawyers are either complicit or impotent - overlooks an essential tool of their trade. An advice is a confidential memorandum addressing legal and factual issues which express a lawyer’s “judgement”, “opinion” or “view”. Advices are typically prepared in response to specific legal questions posed in a request for advice (instructions) from decision-makers. An advice informs action by decision-makers. The format can be oral or written. A written advice leaves an evidentiary trail, may require greater preparation and is typically amenable to review by senior practitioners able to express more knowledgeable or experienced perspectives.

Advices can be differentiated from other materials produced by lawyers. For example, the Australian Department of Foreign Affairs and Trade could discern no reason from an international legal perspective why proposed commercial arrangements between the Australian Wheat Board and a Jordanian trucking company should not proceed.37 This statement was not in terms of an “advice”.38 While government departments can provide technical information to private actors,39 a “special responsibility” reportedly arises for lawyers to ensure that decision-making occurs on a reasonable and impartial

33 Ibid, at 6.

34 Mr Sofaer “Department of State Legal Advisers” Roundtable” in Scharf & Williams, above n

4, at 148.

35 D Kennedy “Speaking Law to Power: International Law and Foreign Policy Closing Remarks” (2005) 23 Wis Int’l LJ 173 at 178.

36 M Koskenniemi “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice” in Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations, New York,

1999) at 496.

37 T Cole Report of the Inquiry into certain Australian companies in relation to the UN Oil-for- Food Programme (Commonwealth of Australia, ACT, 2006) at [20.64].

38 Ibid, at [20.80]. In 2010 AWB settled a shareholder class action following an admission that it had breached Australian law implementing Security Council resolutions concerning the UN’s Oil for Food Programme: E Sexton “Why did AWB shareholders settle for so little?” (2010) The Age Business Day < settle-for-so-little-20100219-olx0.html>.

39 R Bilder “The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs”

(1962) 56 AJIL 633 at 640.

basis.40 This recurring notion of a “special responsibility” feeds into a broader question for government lawyers: who is your client?41 The possibilities include decision-makers, government departments, the general public, the State, the international community and perhaps the interests of international law itself. While many accept that the classical State-centric model remains resilient,42 one of the challenges associated with being a government international lawyer, and one of the threads of this article, is the potential for conflict between a lawyer’s professional responsibilities to a “client” and any loyalty he or she may owe to the international legal system generally.

Advices are subject to increasingly greater scrutiny. This can result from freedom of information requests from public interest organisations43 or the media.44 Questions of “high” policy such as using force admittedly draw more controversy than relatively mundane matters where advice may prove unremarkable. For either case, however, the process of crafting an advice has attracted little comment. One exception is Franck who as an “outsider” has proposed seven rather Machiavellian rules.45 One: lawyers do not provide advice unless asked. Two: when asked, lawyers should ascertain what advice decision-makers want. Three: when advising, lawyers should demonstrate the “indubitable legality” of whatever decision-makers want. Four: where proposed action is unlawful, advices must indicate how to achieve the same purpose lawfully by changing the rhetoric and not the policy. Five: lawyers should not advise decision-makers that they cannot lawfully do that which is about to be done, especially in writing. Six: because certainty is essential, the more doubtful the legal proposition being advanced, the more emphatically it must be stated. Seven: lawyers must prepare justifications which provide “plausible legal cover” even if they are not convincing. Whether one subscribes to these particular propositions, a starting point is welcome, if only to appreciate the significance of process, a lawyer’s vulnerability and the need to safeguard institutional integrity. But something more could be added.

40 Ibid, at 666-7.

41 S Tully “International Legal Advisers and Transnational Corporations: Untangling Roles and Responsibilities for Sanctions Compliance” in J Farrall and K Rubenstein (eds) Sanctions Accountability and Governance in a Globalised World (Cambridge University Press, New York,

2009), chapter 11.

42 Compare C Miéville “Anxiety and the Sidekick State: British International Law after Iraq” (2005) 46 Harv Int’l LJ 441 at 445.

43 See for example the view that the possible imposition of the death penalty for terrorist offence charges resulting from a joint Australian Federal Police (AFP)-Indonesian police investigation will not directly affect AFP’s participation because, in the opinion of the Attorney General’s Department, the International Covenant on Civil and Political Rights does not apply to individuals located outside of Australia’s territory or not subject to its jurisdiction: New South Wales Council for Civil Liberties “the Australian federal police and capital punishment” (2009) at [82], [84] <>.

44 See for example the attempt by The Australian newspaper concerning the legality of detaining David Hicks at Guantanamo Bay: Re McKinnon v Secretary, Department of Foreign Affairs and Trade [2004] A ATA 1365.

45 Franck, above n 29, at 4.

II. A Principled Approach for Constructing Advices

This Part proposes a “principled” approach for crafting advices. Advices form part of the applicable framework for decision-makers. Of the many challenges confronting government lawyers, the pressure to “bend” advice in support of policy objectives can be “intense”.46 If international law is a marginal restraint on power, advices offer the comforting illusion of legality. If international law structures the exercise of power, advices offer a pathway for its responsible implementation. A politically expedient interpretation devised by lawyers can undermine international law. Responsibility is properly attributable to those individuals who willingly violate it.47 Benchmarks for lawyers when they are asked to prepare advices can more effectively ensure the performance of their essential functions. The ability to advise is a necessary skill for domestic lawyers in any legal field and government lawyers, whether or not they practice international law, are frequently called upon to do so. This practical proficiency might not appropriately fall within international law’s remit or warrant regulation by it. However, as will be argued, the well- accepted paucity of dispute settlement mechanisms within the international legal system elevates the importance of advices as a critical aspect or integer in decision-making.

Identifying normative criteria which inform the construction of advices is consistent with recent developments at national levels. For example, guidelines have been drafted, for reasons considered further below, so that US lawyers promote presidential adherence to the rule of law.48 It is “imperative” that opinions reflect a clear, accurate, honest, thoroughly researched and soundly reasoned appraisal of applicable law.49 National legal departments have built a reputation for giving candid, independent and principled advice, even if contrary to the preferences of decision-makers. To return to an overarching concept, lawyers have a “special obligation” to ensure legal compliance by decision-makers, especially where judicial oversight is unlikely, by respecting individual rights and the constitutional allocation of powers, and refraining from advocacy styles of analysis whereby lawyers craft merely plausible arguments.50 On the other hand, enhancing transparency, particularly where the action contemplated is of “dubious” legality, may deter decision-makers

46 American Society of International Law/International Law Association (US Branch) “The Role of the Legal Adviser of the Department of State” (1991) 1 Transnat’l L & Contemp Probs 209 at 213-214.

47 D Kennedy “When Renewal Repeats: Thinking Against the Box” (2000) 32 NYU J Int’l L & Pol 335 at 475-76.

48 D Johnsen “Guidelines for the President’s Legal Advisors” (2006) 81 Ind LJ 1345.

49 US Department of Justice Office of Legal Counsel, Memorandum for Attorneys of the Office: Best Practices for OLC Opinions, Steven G. Bradbury, Principal Deputy Assistant Attorney General, 16 May 2005, Washington DC at 1.

50 US Department of Justice, Principles to Guide the Office of Legal Counsel, 21 December 2004.

For instructions on the preparation of advices, see for example US Department of Justice, Office of Legal Counsel, Manual for Attorney-Advisers, Washington DC, June 2000, 8-12.

from soliciting advice. Be that as it may, this instance of State practice suggests the possibility of designing standards so that lawyers are more likely to “get it right” and “be heard” when advising decision-makers.

A. Getting it Right

1. Accuracy

It is axiomatic that advices must state the law accurately. Accuracy requires precise wording, care, thoroughness, attention to detail and identifying all material or dispositive facts. Advices must be drafted by technically proficient lawyers. They must either deal competently, promptly and inexpensively with requests or advise clients to retain other counsel.51 The lawyer’s objective is to “do their very best to get the law right” and advise governments what international law requires.52

For example, in 2002, Jay Bybee, then Assistant Attorney General and head of the US Justice Department’s Office of Legal Counsel (OLC), advised that US war crimes legislation and the Geneva Conventions did not apply to Al-Qaeda and the Taliban. This advice, authored by his Deputy Assistant, John Yoo, concluded that captured members of these organisations were not entitled to any rights beyond that provided to them by policy, as was done during the US military interventions into Korea, Vietnam, Panama and Somalia.53 Common Article 3 to the Geneva Conventions was inapplicable, according to Yoo, because armed conflict between transnational terrorist organisations and States was unforeseen and not provided for.54 The US President made a determination to that effect,55 notwithstanding contrary advice that applying the Geneva Conventions would demonstrate that the US based its conduct on international obligations rather than policy preferences.56

The two now-notorious “torture memos” were also issued by the OLC

during 2002. The first, drafted by Yoo and signed by Bybee, concluded that the Convention against Torture only prohibited the most extreme forms

51 M Janis “The Lawyer’s Responsibility for Foreign Law and Foreign Lawyers” (1982) Int’l Lawyer 693 at 703. In New South Wales, for example, a legal practitioner is expected to serve their client “competently and diligently”: NSW Law Society, Revised Professional Conduct and Practice Rules, 1995.

52 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 95, lines 8-19 (Lord


53 J Bybee “Memo 6: Application of Treaties and Laws to Al Qaeda and Taliban Detainees” (22

January 2002) in K Greenberg and J Dratel (eds) The Torture Papers: The Road to Abu Ghraib

(Cambridge University Press, New York, 2005) at 81–117 [Greenberg & Dratel].

54 Ibid, J Yoo, “Memo 4: Application of Treaties and Laws to Al Qaeda and Taliban Detainees” (9 January 2002) at 38, 46-7.

55 Ibid, G Bush, “Memo 11: Humane Treatment of al Qaeda and Taliban Detainees” (7

February 2002) at 134.

56 Ibid, W Taft, “Memo 10: Comments in your paper on the Geneva Convention” (2 February

2002) at 129.

of intentionally inflicted harm.57 Yoo also advised that certain proposed interrogation methods, including waterboarding, would not violate the prohibition against torture under US law.58

These advices were released to facilitate Congressional and public scrutiny.59

They were criticised as “bizarre”60 and containing “strained logic”.61 The advices distorted the meaning and intent of anti-torture law and rationalised the abuse of detainees in US custody.62 They sought to preserve maximum flexibility with the least restraint by international law and immunise decision-makers from prosecution.63 Yoo defended his approach by reference to the US practice of ratifying human rights treaties which required no national legal changes.64

But as a general rule, lawyers who “don’t say no” to some policy objectives create opportunities for unlawful action.65 Secretary of Defense Rumsfeld’s authorization of aggressive interrogation techniques was found to be a direct cause of detainee abuse at Guantanamo Bay.66 Allied States were confronted with difficult subsidiary questions, including whether the Convention against Torture prohibited receiving information derived from torture.67

Ultimately several OLC opinions were withdrawn in their entirety and others were not to be considered authoritative where they departed from OLC practice or did not reflect its current views.68 In particular, the “torture memos”

57 Ibid, J Bybee, “Memo 14: Standards of Conduct for Interrogation under 18 USC §§ 2340-

2340A” (1 August 2002) at 172, 213-14.

58 Ibid, J Yoo, “Memo 15: Letter to Alberto Gonzales, Counsel to the President” (1 August

2002) at 218.

59 United States Senate, Committee on Armed Services, Report of the Inquiry into the Treatment of Detainees in US Custody, 110th Congress, 2nd Session, 20 November 2008; US Senate Select Committee on Intelligence, Release of Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinion on the CIA’s Detention and Interrogation Program, 17 April 2009.

60 K Clark “Ethical Issues raised by the OLC Torture Memorandum” (2005) 1 J Nat’l Sec L & Pol’y 455 at 459.

61 G Harris “The Rule of Law and the War on Terror: The Professional Responsibilities of

Executive Branch Lawyers in the Wake of 9/11” (2005) 1 J Nat Security L & Pol’y 409 at 434.

62 Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody

(Washington DC, 11 December 2008) at 27.

63 American Bar Association “Report to the House of Delegate’s, August 2004” in Greenberg and Dratel, above n 53, 1132 at 1158.

64 J Yoo War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press, New York, 2006) at 177. See also J Yoo “International Law and the War in Iraq” (2003) 97

AJIL 563.

65 F de Londras “How the US Can Lose the War on Terror: The Complicity of Lawyers” (2008) Social Science Research Network at 4 < =1125846> .

66 US Senate Committee on Armed Services, Report on the Inquiry into the Treatment of Detainees in US Custody, 110th Congress, 2nd Session, 20 November 2008, Conclusions 13 & 19.

67 Letter from Sir Michael Wood, Legal Adviser, Foreign and Commonwealth Office, to Linda DuYeld, Director, Wider Europe, Foreign and Commonwealth Office (13 March 2003), extracted in UK Joint Committee on Human Rights, Allegations of UK Complicity in Torture, House of Lords Paper No 152/House of Commons Paper No 230 (London, 2009) at 57.

68 S Bradbury, US Department of Justice, Office of Legal Counsel, RE: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, 15 January


lacked the tenor of detachment and caution which ordinarily characterised the OLC’s work and were withdrawn, notwithstanding a tradition of adhering to past opinions even if considered wrong.69 Yoo’s memorandum was rescinded because it rested on “cursory and one-sided” arguments which were “legally flawed, tendentious in substance and tone, and overbroad”.70

Advices must demonstrably employ orthodox techniques of interpretation, application and analysis. Legal documents “mean something”: “[s]ometimes it is not obvious what it is, but you have to divine it and you have to use all the tools.”71 Whether the text is the Convention against Torture or a Security Council Resolution, neither document can be interpreted in a vacuum.72

Lawyers generally approach legal problems by assembling all helpful material, carefully considering it, making enquiries as necessary, assessing alternative views and finally forming a judgement.73 On the interpretation of Resolution

1441, for example, “you can’t throw up your hands and say ‘I don’t really know what this means’”.74 After weighing the evidence, drafting an advice requires lawyers to make a decision.

Within that process advices primarily cite traditional international legal sources. A plausible argument is one accepted by the international community as having some basis in the authoritative sources and doctrines of international law.75 Unfortunately, treaties contain formulas that are known or intended to be “ambiguous or even meaningless”.76 Each source must be given appropriate weight. Assessing this evidentiary material is a matter of judgement.77 Context and purpose are particularly relevant: whereas courts are likely to give greater weight to public records during litigation, when preparing advices lawyers may benefit from private conversations with negotiators to understand why particular words were chosen.78

International legal sources include prior instances of State practice.

However, a legal basis may have to be invented.79 In circumstances where precedent or established norms provide little guidance, lawyers apply legal

69 J Goldsmith The Terror Presidency: Law and Judgement inside the Bush Administration (W W Norton & Co, New York, 2007) at 145, 149.

70 Ibid, at 151.

71 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 47, line 24- 48, line 1 (Lord


72 Ibid, at 113, lines 10-12.

73 Ibid, at 39, line 6-40, line 10.

74 Ibid, at 43, line 22- 44, line 5.

75 A Byrnes “‘The Law was Warful’: The Iraq War and the Role of International Lawyers in the Domestic Reception of International Law” in H Charlesworth et al (eds) The Fluid State: International Law and National Legal Systems (Federation Press, Sydney, 2005) 229 at 247.

76 Allott, above n 8, at 15.

77 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 123, lines 1-4 (Lord


78 Compare Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 76, lines 4-14 (Lord Goldsmith) and 26 January 2010, at 25, lines 14-19 (Sir Michael Wood).

79 A Chayes “Remarks” (1963) 57 ASIL Proc 10 at 11 (the quarantine of Cuba during the

Missile Crisis).

instincts to make new ones.80 However, as foreshadowed above, advices have a “special significance” for the development of international law and the “integrity” of the international system.81 The former includes a “special responsibility” for developing customary international law in the common interest.82 Insofar as international law is mere argument,83 the position adopted in an advice must be acceptable in a range of situations and over long time horizons.84

Furthermore, the arguments articulated in an advice can apply reciprocally. If one State ignores or interprets away an international rule, the precedent may be used by other States in their relations with that State and each other, thus weakening the rule of international law.85 Arguments might have to be avoided so as not to imply acceptance of a particular view.86 A rationale may also be misused.87 In respect of the “torture memos” it was foreseen that States would argue that US interrogation techniques violated international law. At that time the US considered itself the final arbiter in deciding how international law applied to national activities.88 The reassessment of its approach to international humanitarian law involves emphasising reciprocity, even if those protections are not extended to US forces by some adversaries.89

To explore the “special responsibility” concept a little further, the prospect of establishing precedents imposes a heightened standard of care when determining whether a proposed use of force is lawful. This is the most important advice lawyers can be asked to provide.90 For example, the US cannot legitimately take military action without allowing States to cite the reasons given.91 Even if unable to prevent resort to force, lawyers have the opportunity to influence any precedential effect and avoid new “open-ended” doctrines.92

80 W Rogers “‘Power’ to ‘Law’: It’s not as bad as all that” (2005) 23 Wis Int’l LJ 39 at 45, 46.

81 R Bilder “International Law and United States Foreign Policy: Some Reflections on the

ASIL/ILA Report on the Role of the Legal Adviser” (1991) 1 Transnat’l L & Contemp Probs

201 at 203.

82 Allott, above n 8, at 18.

83 M Koskenniemi From Apology to Utopia – The Structure of International Legal Argument

(Cambridge University Press, Cambridge, 2006).

84 J Crook “Practicing International Law for the United States” (1996) 6 J Transnat’l L & Pol’y

1 at 3.

85 Scharf & Williams, above n 4, at 203.

86 Ibid, “The Reagan Administration – Davis R Robinson” (1981-85), 55 at 58 (the “rescue mission” in Grenada and avoiding implied acceptance of the Brezhnev doctrine).

87 Ibid, “The Clinton Administration - David R Andrews” (1997-2000), 113 at 125 (justifying NATO’s intervention in Kosovo by reference to self-defence or the doctrine of humanitarian intervention).

88 Working Group Report on Detainee Interrogations in the Global War on Terrorism, “Memo

26: Assessment of Legal, Historical, Policy and Operational Considerations” (4 April 2003), in Greenberg and Dratel, above n 53, 286 at 336, 343.

89 Ibid, Final Report of the Independent Panel to Review Department of Defence Detention

Operations (the Schlesinger Report) (August 2004), 908 at 953.

90 “The Reagan and Bush Administrations – Abraham D Sofaer” (1985-1990) in Scharf & Williams, above n 4, 65 at 82.

91 Ibid, Mr Sofaer, “Department of State Legal Advisers’ Roundtable” at 125.

92 Ibid, Mr Matheson, “Department of State Legal Advisers’ Roundtable”, 147 at 164-5.

Thus accuracy also reflects a lawyer’s judgement. Legal competence obviously includes knowledge, skill, thoroughness and preparation. However, advices do not prevent mistakes by decision-makers as much as the “experience” and “wisdom” of lawyers.93 Lawyers are called upon to offer their judgment and not only their legal knowledge.94 They are also expected to carefully weigh the arguments in reaching a correct legal view.95

One limit to technical proficiency is that there are reputedly questions beyond law’s province for which lawyers cannot purport to advise.96 Lawyers are, in this sense, incompetent. For example, lawyers cannot make foreign policy or factual assessments. Once the question of legality is determined, whether it is right to use force is a matter for government.97 For example, lawyers could not assess whether Iraq was in material breach because only governments could access all the relevant material.98 The determination was made by decision-makers when exercising political judgement and not in a legal sense.99 Given that decision’s significance, the advice had to be sufficiently clear.

2. Clarity

Lawyers can speak obscurely while appearing to speak clearly and can speak clearly within a “fog of obscurity”.100 Vagueness also provides “ample room” for the interplay of law and politics.101 Furthermore, international law “rarely says yes or no”102 such that there can be many legal views without an apex arbiter of which is correct.103 However, vagueness does not justify disregarding international law or not treating it as legally binding. International law is minimally clear to enable some degree of control over decision-makers.104 However, clarity may require appropriate factual or legal qualifications. These caveats may not be heard as clearly as intended such that lawyers may have to “shout the ‘but’ rather harder” than they ordinarily would.105 The strengths and weaknesses of a client’s position – whomever that

93 Ibid, Mr Hansell, 147 at 166.

94 Ibid, Conrad Harper, 147 at 150.

95 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, 191, line 21-192, line 6 (Lord


96 E McWhinney “President Bush and the New US National Security Strategy: The Continuing

Relevance of the Legal Adviser and International Law” (2002) 1 Chinese J Int’l L 421 at 435.

97 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 154, lines 5-14 (Lord


98 Ibid, 26 January 2010, at 32, lines 17-22 (Mr David Brummell, Legal Secretary to the Law

Officers, 2000-2004).

99 Ibid, 27 January 2010, at 203, lines 4-10 (Lord Goldsmith).

100 Allott, above n 8, at 19.

101 Scharf & Williams, above n 4, at 204-5.

102 Rogers, above n 80, at 46.

103 Chilcot Inquiry, Transcript of Proceedings, 27 November 2009, at 37, lines 7-12 (Sir Jeremy


104 M Koskenniemi, “International Legislation Today: Limits and Possibilities” (2005) 23 Wis

Int’l LJ 61 at 78.

105 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 54, lines 3-11 (Lord


“client” may be – and the risks of pursuing particular courses of action must be identified to enable informed decision-making. Decision-makers want advices which provide as much certainty as possible.

3. Certitude

Certitude turns on several factors, including whether the relevant legal rules are unambiguous, well-established and broadly accepted. But there may be no right answer to the exclusion of all other possible right answers.106 A range of interpretations might be arguable. On Resolution

1441, for example, Australian lawyers expressed contrary interpretations or remained mute. It was suggested that the publicly-released version of Australia’s official advice was an advocacy piece intended to provide legal cover for a policy decision already made rather than a balanced opinion assessing the merits of the available arguments.107 Advices should ideally identify assumptions, uncertain elements and the factual conditions upon which accuracy is premised.

The orthodox understanding of an advice as an analysis and communication of legal rights and obligations is somewhat clouded.108

In a governmental setting, written advice rarely takes the form of a legal opinion, such as barristers in private practice provide, because the legal views of government lawyers are typically integrated into policy development.109

In fluid or unfolding circumstances, lawyers may be requested to prepare draft or provisional documents which identify concerns, raise questions and seek clarification. Researching commentaries, negotiating histories, prior advices or factual briefings can be incomplete. Advices might simply propose alternatives. For example, Sir Michael Wood, FCO Legal Adviser between

2001 and 2006, prepared a background paper that deliberately left a matter open because it was made clear that he should.110 The absence of a definitive opinion from the Attorney General proved problematic, however, because decision-makers needed advice “even if they didn’t want it”.111 Similarly, Sir Gerald Fitzmaurice, the then legal adviser, prepared a minute during the Suez Canal crisis intended to put the best light on the UK’s position without purporting to express an official view.112

106 Allott, above n 8, at 18.

107 G Griffith “Notes on the Legal Justification for the Invasion of Iraq and Security Council Resolutions 678 and 1441” Sydney Morning Herald (Sydney, 21 March 2003) <http://www.> .

108 W Carroll “Innocents Abroad: Opportunities and Challenges for the International Legal

Adviser” (2001) 34 Vand J Transnt’l L 1097 at 1126.

109 Chilcot Inquiry, Statement by Sir Michael Wood, 15 January 2010, at [5].

110 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 38, lines 11-23 (Sir Michael


111 Ibid, at 39, lines 9-22.

112 G Marston “Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government” (1988) 37 ICLQ 773 at 781-2.

The position and experience of distinguished lawyers enables them to anticipate circumstances for which there may be little or no certainty.113 They develop a “pragmatic” or “functional” approach, tending to view international law not as a body of fixed and unchangeable rules but rather a flexible tool to forge real solutions to practical problems.114 New challenges are addressed on a case-by-case basis, “letting the law work itself out”: rather than immediately enunciating broad principles, precedent gives way to analysis to produce a “sensible” outcome.

This point introduces the theme of a lawyer’s responsibility because decisions are made on the basis of advice which might never be externally assessed. Even if peer reviewed, advices are ordinarily subject to legal professional privilege. It is in the public interest to ensure that advice, even if provisional, as well as the fact that it was sought, remains confidential so that full and frank opinions are expressed.115 However, there is a contrary public interest in knowing that States have sought professional advice and acted consistently with international law.116 Disclosure of uncirculated drafts, advices of a preliminary or tentative nature or those which reveal risks, reservations or counter-arguments is generally not required.117 However, when States publicise their concluded legal views, there is arguably a public interest in knowing the extent to which such statements are based upon “firm and confident” analysis or are at least consistent with the fuller advice given.118

The recorded information underlying those views can be disclosed so that the public can appreciate the rationale behind published statements and whether final conclusions are justifiable.119

Uncertainty is typically addressed by making predictive judgements on how courts are likely to resolve the matter. This technique is somewhat speculative where the prospect of an international or domestic forum assessing the correctness of an advice is very remote. In such circumstances there is greater scope for lawyers to assume an advocacy role and perhaps be less inclined to curtail executive action. Foreign Secretary Straw, for example, noted but did not accept Sir Wood’s advice given the absence of an international court to resolve an issue which was “an arguable one, capable of honestly and reasonably held differences of view.”120 However, government lawyers are tasked with giving independent, objective and impartial advice “which they

113 N Questiaux “Do the Opinions Expressed by the Conseil d’Etat in its Capacity as Legal

Adviser to the Government Influence Policy?” (2000) 49 ICLQ 672 at 675.

114 Bilder, above n 39, at 680.

115 Freedom of Information Act 2000 (UK) Enforcement Notice from the Information

Commissioner to the Legal Secretariat to the Law Officers, Attorney General’s Chambers, 22

May 2006 at [10], [13], [14].

116 Ibid, at [19].

117 Ibid, at [10].

118 Ibid, at [24].

119 Ibid, at [11].

120 Chilcot Inquiry, Minute from Foreign Secretary Jack Straw to Michael Wood, Legal Adviser, Iraq: Legal Basis for Use of Force, 29 January 2003.

believe in, not the advice which they think others want to hear.”121 Although they should be “positive and constructive” in helping government lawfully achieve its objectives and “open-minded” to other perspectives, it is their right and duty to state whether proposed measures are unlawful. Nevertheless, while lawyers should offer their best advice, decision-makers must also be free to raise legitimate questions in relation to advices which convey the “full range” of views.122

Once again, there is an oft-mentioned but elusive “special responsibility”

for lawyers to do their best to ensure that which is certain under international

law is upheld.123 Because there is no court, both lawyers and decision-makers

have to scrupulously adhere to international law consistent with a duty to

“the system”.124 For Sir Wood, ultimately this was “a bit of a game” because

“what mattered, at the end of the day” was the Attorney General’s view.125

He simply wanted decision-makers to appreciate the law so that their public

statements didn’t expressly contradict his view of the law and his view of the

Attorney General’s view of the law.126 After an initial advice outlining the

respective merits of competing positions, he consistently set out his own view

whenever necessary.127 So too did Sir Fitzmaurice repeatedly advise that the

UK had no case as circumstances then stood, either under general law or the

UN Charter, for using force.128 For certitude therefore, a legal view, once

settled, should be consistently expressed.

Familiarity with a State’s practice of international law, as well as that of other States, provides some degree of certainty to enable lawyers to influence decision-making.129 One risk is that lawyers become wedded to a particular view. A paradox in the culture of government lawyers is that “the less certain

121 Chilcot Inquiry, Note from Attorney General Goldsmith to Foreign Secretary Straw, 3

February 2003 at [2], [3].

122 Chilcot Inquiry, Note from Foreign Secretary Jack Straw to Attorney General Goldsmith,

20 February 2003 at [2]. Yoo comments that lawyers must provide decision-makers with “a view of the entire playing field” of legal argument: “a lawyer must not read the law to be more restrictive than it is just to satisfy his own moral goals ... or to advance the cause of international human rights law” but must “make sure the government understands what the law permits before it decides what it should do”: J Yoo “A Crucial Look at Torture Law” Los Angeles Times (Los Angeles, 6 July 2004) at B11.

123 Chilcot Inquiry, Statement by Sir Michael Wood, 15 January 2010 at [37].

124 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 33, line 1-34, line 20 (Sir Michael Wood). Elizabeth Wilmshurst agreed: international law “is defective in not having a system of courts which can try the legality of certain issues, or at least not always available. So it is uncertain in that respect. But I think that, simply because there aren’t courts, it ought to make one more cautious about trying to keep within the law, not less”: Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 9, lines 4-9.

125 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 35, lines 5-10 (Sir Michael


126 Ibid, at 47, lines 8-9, 19-22.

127 Ibid, at 37, lines 9-15.

128 Marston, above n 112, at 790.

129 Madame Xue Hanqin, former Director-General of the Law and Treaty Department of the Ministry of Foreign Affairs of China, “Foreign Legal Advisers Roundtable” in Scharf & Williams, above n 4, 169 at 178.

the law is, the more certain in their views they become”.130 This tendency to inflexibility or dogmatism is understandable given a lack of courts coupled with an expectation that lawyers stand by their conclusions.131 Lord Goldsmith provided “supplementary” advice which was not contradictory to or inconsistent with his detailed advice that a second resolution was unnecessary.132 Certitude, it seems, does not prevent lawyers from adding to an earlier advice, provided they are also prepared to defend it.

4. Defensible

When decision-makers disagree with advice it can become “uncomfortable”

for lawyers.133 Elizabeth Wilmshurst, FCO Deputy Legal Adviser between

2001 and 2003, recounted an experience where Foreign Secretary Straw

initially disagreed with an advice but she prevailed following private

discussions. Similarly, Attorney General Goldsmith considered it desirable

to strongly and unambiguously explain his opinion that Resolution 1441 was

sufficient.134 Decision-makers are entitled to challenge or test opinions because

advices do not “drop from the sky” or an “ivory tower”.135 Lawyers must

be prepared to argue their case and respond to questions. Lord Goldsmith

reflected carefully when contemplating action contrary to experienced

international legal experts.136 For him, this was not a “headcount game”

because some lawyers have greater credibility than others.137

Ultimately lawyers must form their own view knowing that not everyone

will agree.138 Lawyers keep their own counsel notwithstanding criticism

of their professional judgement or personal integrity. They therefore face a

“difficult bind” when decision-makers cite international law to justify actions

deviating from it.139 Whether intervention into Iraq was right or wrong

as a policy question, Lord Goldsmith genuinely supported its legality as a

professional lawyer with over thirty-five years experience.140

The defensibility of an advice, however, is bounded by a lawyer’s

responsibilities. Lawyers must adhere to professional conduct rules such that

advice cannot be given in bad faith. At its highest, a lawyer’s accountability

130 Chilcot inquiry, Letter from Foreign Secretary Straw to Attorney General Goldsmith, Iraq: Second Resolution, 6 February 2003, at 2.

131 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 106, line 13-107, line 2 (Lord


132 Ibid, 26 January 2010, at 18, lines 20-25 (Mr David Brummell).

133 Ibid, 26 January 2010, at 7, line 10-8, line 10 (Elizabeth Wilmshurst).

134 Chilcot Inquiry, Iraq: Meeting by Foreign Secretary with the Attorney General, 17 March

2003 at [1].

135 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 98, line 16-99, line 1 (Lord


136 Ibid, at 99, line 4-100, line 3.

137 Ibid, at 107, line 20-108, line 23.

138 “The Reagan and Bush Administrations – Abraham D Sofaer (1985-1990)” in Scharf & Williams, above n 4, 65 at 85.

139 Berman, above n 15, at 94.

140 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 245, line 18-246, line 10 (Lord Goldsmith).

can amount to criminal responsibility.141 However, since advice is given on the basis of facts provided by clients, if those facts were to change then an advice would not necessarily apply.142 Lawyers can thus minimise or avoid accountability on the basis of assumptions identified in their advice. The clients may think that prosecutorial immunity is conferred for conduct undertaken in good faith and within the scope of an advice akin to an advance pardon. However, advices provide no assurance that the liability of either lawyers or decision-makers cannot be otherwise established.

For example, Yoo and Bybee were initially found to have committed intentional professional misconduct.143 The Office of Professional Responsibility (OPR) concluded that Yoo had violated a duty to exercise independent legal judgement and render thorough, objective and candid legal advice by overlooking counter-arguments and providing insufficient detail.144 Bybee had recklessly disregarded that duty by adopting incomplete, inadequately researched and one- sided opinions.145 Yoo contended that he had given an honest and reasonable assessment in good faith on an unsettled legal question which was not found to be unquestionably wrong.146 Bybee argued that punishing supervisors for work undertaken by juniors means that future advices will be “watered down”, “equivocal” and “useless”.147 The candour, quality and vigour of advice would be chilled. They submitted that their advices were consistent with prior OLC opinions and US and international jurisprudence, prepared during a palpable terrorist threat, unchallenged by senior officials and adequately disclosed risks and uncertainties. Government lawyers, called upon to provide their best legal judgment within the time available, should not risk their future professional livelihood by the prospect of having their conclusions publicly second-guessed with the benefit of hindsight.148

141 US v Altstoetter et al, Trials of War Criminals before the Nuremberg Military Tribunals under

Control Council Order No 10: Nuremberg, October 1946–April 1949 (1951) vol III at 3.

142 Jay Bybee, Office of Legal Counsel, US Department of Justice, Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, Interrogation of al Qaeda Operative (1 August 2002) at 1.

143 US Department of Justice Office of Professional Responsibility Final Report, Investigation into the Office of Legal Counsel’s Memoranda concerning Issues relating to the Central Intelligence Agency’s Use of Enhanced Interrogation Techniques on Suspected Terrorists (29

July 2009) at 18.

144 Ibid, at 11, 24, 237, 251-4, 255-7.

145 Ibid, at 11, 255-57.

146 Response to the US Department of Justice Office of Professional Responsibility Final Report dated 29 July 2009, Submitted on behalf of Professor John Yoo, 9 October 2009. Biomet Inc v Finnegan Henderson LLP 967 A 2d 662 at 665 (DC 2009) was cited as it has “long been recognised” that “mistakes made in the honest exercise of professional judgement” do not fall below the standard of care required for competent advice.

147 Classified Response to the US Department of Justice Office of Professional Responsibility

Classified Report dated 29 July 2009, submitted on behalf of Judge Jay Bybee (9 October

2009) at 4. See also 148-52.

148 Michael Mukasey and Mark Filip, Office of the Attorney General, Letter to Mr Jarrett, Office of Professional Responsibility, US Department of Justice, Re: OPR Report regarding the Office of Legal Counsel’s Memorandum on Issues relating to the CIA’s Use of Enhanced Interrogation Techniques on Suspected Terrorists (19 January 2009).

A point is also worth noting that the “torture memos” appear to be a product of an earlier trajectory. In 1989 the OLC observed that, if the US was to participate in the evolution of international law, the Executive must have the power to act inconsistently with it.149 Subsequent OLC advices advised that the President could employ military forces overseas without specific prior Congressional approval. This included ensuring the safe delivery of UN relief supplies to Somalia during 1992150 and deploying troops into Bosnia- Herzegovina in 1995 to enable the North Atlantic Treaty Organisation to ensure compliance with a peace agreement.151 In 2001 Yoo opined that the President could attack terrorist organisations which could not be demonstrably linked with September 11, with a footnote acknowledging that such groups typically operated in secret and classified evidence is infrequently disclosed.152 Indeed, during 2005 and after the “torture memos”, certain “enhanced interrogation techniques” were determined to be consistent with US obligations under Article 16 of the Convention against Torture153 and permissible under national law.154

The OPR’s assessment was not subsequently adopted because there was no known, unambiguous standard of conduct against which Bybee and Yoo could be held accountable. Their advice included “flawed” arguments “slanted toward a narrow interpretation of the torture statute at every turn” and contained “more than minor” errors.155 Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client, leading him to author opinions which reflected “extreme, albeit sincerely held, views of executive power”.156 Both lawyers exercised poor judgement by overstating the certainty of their conclusions and underexposing countervailing arguments.157

However, there was no serious deficiency prejudicing the client or evidencing

149 13 Op OLC (1989) at 170, 171.

150 OLC, Authority to Use United States Military Forces in Somalia 16 Op OLC (1992) at 6, 8.

151 OLC, Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina 19

Op OLC 327 (1995) at 327.

152 J Yoo “Memo 1: The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them” (25 September 2001) in Greenberg and Dratel, above n 53, 3 at 24.

153 Steven Bradbury, US Department of Justice Office of Legal Counsel, Memorandum for John Rizzo, Central Intelligence Agency, Re: Application of United States Obligations under Article 16 of the Convention against Torture to Certain Techniques that may be used in the interrogation of high value al Qaeda Detainees (30 May 2005).

154 Ibid, Memorandum for John Rizzo, Central Intelligence Agency, Re: Application of 18 USC

§§ 2340-2340A to Certain techniques that may be used in the interrogation of a high value

Al Qaeda Detainee (10 May 2005).

155 David Margolis, Associate Deputy Attorney General, Memorandum of Decision regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda concerning Issues relating to the Central Intelligence Agency’s use of “Enhanced Interrogation Techniques” on Suspected Terrorists, US Department of Justice, Washington DC (5 January

2010) at 64-5.

156 Ibid, at 67.

157 Ibid, at 67.

a knowing or reckless misrepresentation of fact or law. Furthermore, it was unrealistic to suggest that an advice for a small group of sophisticated lawyers during a national crisis fell short for failing to cite supportive caselaw.158

Bybee, like Lord Goldsmith, stood by his “muscular” view of executive authority.159 He accepted that his analysis was not as “fulsome” as it could have been, should have been clearer to avoid misinterpretation and omitted countervailing arguments in the interests of succinctness. He acknowledged that extrapolating the definition of “severe pain” from a medical benefits statute for the purposes of torture legislation amounted to “definitional arbitrage”. However, he defended his managerial oversight of Yoo and concluded that military interrogators acted beyond the parameters of his advice.

A defensible advice does not endorse a client’s actions. Analysing the legal aspects of questionable conduct is distinguishable from recommending the means by which proposed but illegal conduct can be committed with impunity. Yoo and Bybee’s experience is a “cautionary tale” for government lawyers.160 Their account underlines an additional lesson that advices should be the product of collaborative effort.

5. Collaborative

It is uncontroversial that lawyers co-ordinate common positions on potentially contentious points.161 This presents its own challenges, however. When drafting a Security Council Resolution, for example, the OLA contacted lawyers from allied States to share its understanding of their treaty obligations.162 Attorney General Goldsmith similarly conferred with William Taft, his opposite number within the US State Department, to interpret Resolution 1441.163 Taft prepared talking points for senior officials with whom Lord Goldsmith met separately and heard “the same analysis of the situation each time”. Although some US lawyers wished to invoke self-defence, they agreed that this was too tenuous a position to put forward and doing so could undermine Lord Goldsmith’s confidence in their interpretation.164

158 Ibid, at 36.

159 US House Judiciary Committee, Interview of Former Assistant Attorney General Jay Bybee, Transcript of 26 May 2010 at 146-148, 152, 165, 173, 178, 196, 200, 231, 270 <http://> .

160 Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill

2009, Second Reading Debate, Australian Parliament House of Representatives Hansard (22 February 2010) at 1339 (Dr Kelly (Eden-Monaro – Parliamentary Secretary for Defence Support and Parliamentary Secretary for Water)).

161 See generally H Corell “Cooperation among Legal Advisers on Public International Law” in

United Nations, above n 36, 97.

162 “The Bush (43rd) Administration – William H Taft IV (2001-2005)” in Scharf & Williams, above n 4, 127 at 128 (Security Council Resolution 1368 (2001)).

163 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 109, lines 20-25 (Lord


164 “The Bush (43rd) Administration – William H Taft IV (2001-2005)” in Scharf & Williams, above n 4, 127 at 133.

One complication is the turf battles between in-house counsel which characterise inter-agency processes. A “whole of government” approach requires good working arrangements conducive to information sharing and a candid exchange of views. The OLC, for example, shares preliminary drafts with clients to ensure that advice requests are met. Completed advices of broad relevance are also circulated to other departments provided the requesting agency consents, thereby ensuring uniformity to the government position. To enable transparency, non-confidential advices are also published to notify other agencies, the legal community and the general public of legal conclusions reached, along with supportive reasoning.

Another obstacle is that lawyers may vigorously disagree in a healthy fashion on views they honestly hold at a particular time. For example, the US State Department advised Yoo that the factual premises underlying a draft version of his advice was wrong as a matter of international law and his analysis “seriously flawed”.165 Disputes thus arise within and between government departments.166 The “torture memos” was not the first occasion when the OLA and the Department of Justice did not consult.167 Marginalising independent voices is also not conducive to “whole of government” approaches. For example, Staff Judge Advocate Diane Beaver was, like Yoo, requested to advise on proposed interrogation techniques. Unlike Yoo, she was isolated from colleagues and lacked adequate resources.168 She provided an advice and requested a further examination. General Hill then solicited options from Defence and Justice Department lawyers.169 The resulting advice was ignored.170 State Department and military lawyers having the requisite familiarity and experience were also excluded. The OLA was similarly unaware of advice from the Defence and Justice Departments concerning detainee treatment and interrogation methods. Had it been included, conclusions which were inconsistent with international law might not have been made.171

Those decision-makers who did participate such as the US Secretary of State expressed opposition on several grounds. Declaring the Geneva Conventions inapplicable would reverse over a century of US practice.172 The

165 US Department of State, Memorandum from William Taft IV to John Yoo, Re: Your Draft

Memorandum of January 9 (11 January 2002) 1.

166 Rogers, above n 80, at 46.

167 “The Bush (41st) Administration – Edwin D Williamson (1990-1993)” in Scharf & Williams, above n 4, 87 at 93 (for example the Alvarez-Machain matter).

168 D Beaver “Memo 18: Legal Review of Aggressive Interrogation Techniques” (11 October

2002) in Greenberg and Dratel, above n 53, at 226, 226-35.

169 Ibid, J Hill “Memo 16: Counter-Resistance Techniques” (25 October 2002) at 223.

170 P Sands Torture Team: Deception, Cruelty and the Compromise of Law (Palgrave Macmillan, New York, 2008) at 102.

171 “The Bush (43rd) Administration – William H Taft IV (2001-2005)” in Scharf & Williams, above n 4, 127 at 130.

172 Memorandum from Colin Powell, Secretary of State, to Alberto Gonzales, Counsel to the President, Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (26 January 2002) reprinted in (2006) 37 Case W Res J Int’l L 615.

challenged advice did not squarely identify the available options or the pros and cons of each, overlooked consequences, was inaccurate or incomplete in several respects and contained factual mistakes. Applying the Geneva Conventions provided a more defensible legal framework. Nevertheless, fifteen interrogation techniques were authorised.173 The OLA and the Justice Department subsequently reached an agreement to revise the advice. Thus, while lawyers can eventually “get it right”, the episode highlights a risk that lawyers can sometimes be ignored.

B. Being Heard

The criteria considered thus far might suggest that the challenges associated with drafting advices can be addressed through technical solutions. However, greater formality could be a symptom rather than a cause of deficient processes. As well as effective legal drafting, there are five additional normative criteria which ensure that advices pull decision-makers towards greater compliance with international law.

1. Authoritative

Advices must be authoritative for decision-makers.174 Lawyers take a view of the law which, if adopted, becomes that of the State, notwithstanding its origins as mere opinions derived from personal experience or judgement. The authority conveyed is that of international law. Decision-makers should be restrained by international law “for their own good” by lawyers leading them “down the right path”.175 The US, considering a second resolution to be unnecessary, could have abandoned negotiations on its view of the law.176 The UK’s position, by contrast, was to establish a safer, unambiguous and undisputed basis for action because Resolution 1441 raised contested matters of subjective opinion.177 In the absence of a further resolution, all the arguments had to be balanced to identify the “more correct” legal view.178

How strong must a legal case be for advices to be authoritative ? The degree of satisfaction includes a “plausible” basis, a “proper” foundation, a “better” or “best” view, the “correct and preferable” view or an “arguable” case reached “on balance”. Is such jargon mere puffery? Sir Michael Wood was unaware of a “respectable” legal basis for military force against Iraq.179

173 W Haynes II “Memo 21: Counter-Resistance Techniques” (27 November 2002) in Greenberg

& Dratel, above n 53, at 236.

174 “The Bush (43rd) Administration – John B Bellinger III (2005-2009)” in Scharf & Williams, above n 4, 135 at 136.

175 Ibid, Ambassador L Skotnikov, former Director of the Legal Department of the Russian

Ministry of Foreign Affairs, “Foreign Legal Advisers Roundtable”, 169 at 176.

176 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 114, lines 2-7 (Lord


177 Ibid, 27 November 2009, at 65, lines 1-5; 80, lines 23- 81, line 1 (Sir Jeremy Greenstock).

178 Ibid, 27 January 2010, at 235, lines 6-19 (Lord Goldsmith).

179 Chilcot Inquiry, Minute from Michael Wood, Legal Adviser, FCO to Stephen Wright, Iraq: Legality of Use of Force, 15 August 2002 at [4], [6], [7].

Acting without a “credible” basis exposed the UK to compensation claims. Lord Goldsmith accepted that a “reasonable” case could be made that Resolution 1441 revived the authorisation of Resolution 678.180 He was, however, not confident that a court would agree.181 The revival argument has been described as “strained”182 The comparable Australian advice, by contrast, invoked a standard of “belief ”.183 Such terminology strengthens concerns that lawyers are simply fashioning “a patina of legality” for State action underpinned not by credibility (will arguments convince third parties?) but “credible deniability” (are advices minimally coherent?).184

The standard to be met cannot be answered in the abstract.185 It may not even be useful to identify tests for determining when opinions are so politically slanted or patently unfounded as to be beyond the range of responsible and good faith arguments.186 It is thought that the collective sentiment of the professional international legal community is sufficient to indicate when an advice is “out of the ballpark”.187 The standard to be satisfied clearly appears to be higher when military force is contemplated. Advice was sought on the consequences of using force against Iraq without legal authority.188 Advice was accordingly given in the nature of “extremely theoretical speculation” that the UK, which had on numerous occasions made clear its intention to comply with international law, used force without justification.189 While an “acceptable” legal basis was not apparent,190 a “reasonable” case might be sufficient.191 But

180 Chilcot Inquiry, Lord Goldsmith “Attorney General’s Advice on the Iraq War: Resolution

1441” (2005) 54 ICLQ 767 at [28].

181 Ibid, at [30]. Lord McNair commented that, should the Suez Canal crisis ever come before a legal tribunal, “my view is that we must expect to see judgment given against us”: Marston, above n 112, at 814.

182 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 30, lines 18-20 (Elizabeth


183 Attorney General’s Department/Department of Foreign Affairs and Trade, The Memorandum of Advice on the Use of Force against Iraq (18 March 2003) at [15]: “We do not believe that the authorisation contained in SCR 678 has expired ... Nor do we believe that the Security Council has either expressly or impliedly withdrawn the authority for the use of force in SCR

678 in all circumstances”. See further Colloquium “Special Feature: Advice on the Use of

Force against Iraq” (2003) 4 Melb J Int’l L 177.

184 Franck, above n 29, at 9.

185 Chilcot Inquiry, Statement of Sir Michael Wood, 15 January 2010, at [36].

186 American Society of International Law/International Law Association (US Branch) “The

Role of the Legal Adviser of the Department of State” (1991) 85 AJIL 358 at 363.

187 R Bilder and D Vagts “Speaking Law to Power: Lawyers and Torture” (2004) 98 AJIL 689 at


188 Chilcot Inquiry, Note to Legal Adviser from Private Secretary, Foreign Secretary, Iraq, 15

October 2002.

189 Chilcot Inquiry, Minute from Michael Wood, Legal Adviser, FCO, to Private Secretary, Foreign Minister Straw, Iraq, 15 October 2002, at [2].

190 Chilcot Inquiry, Minute from Michael Wood, Legal Adviser, to Private Secretary, Foreign

Secretary, Iraq, 26 March 2002, at [2], [5].

191 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 97, lines 2-5, 17-20 (Lord


a reasonable case could mean arguments supported by reasoning, arguments which can reasonably be made192 or arguments which have reasonable prospects for success.193

The terminology perhaps masks deliberative lawmaking. Lawyers

creatively devise approaches on international legal questions to accommodate

policy preferences.194 However, addressing legal considerations is essential to

validate decision-making and mobilise international support. Lawyers are not

simply asked to “cook up” a legal theory to defend contemplated action.195

Indeed, they can occupy the “driver’s seat” when establishing the policy

rationale and resolving the associated international legal questions.196 Security

Council Resolutions “basically drafted” by the OLA can be a “creative” and

“very aggressive” use of international law to deal with the difficult problems

of the day.197 Unfortunately that same sentiment led US lawyers to adopt a

“more robust” framework for terrorist detention.198

An authoritative view need not be conclusive, final, settled or definitive. A

definitive view, for example, addresses questions in detail, contains supporting

material, identifies competing perspectives and analyses preliminary

assessments.199 However, legal questions might not lend themselves to definite

answers given the open-textured character of international norms and relative

dearth of precedent. Furthermore, advices are not definitive on those evolving

factual points which underpin legal conclusions. Nor does an authoritative

advice have to be comprehensive. Brevity is preferred.200 Advices should only

say what is necessary to answer the question posed. Since the advice request

determines the parameters of the advice, the question presented should be

focused, concrete, be framed prospectively, identify a practical need and may

require prior settling with the client, whomever that may be.

For example, the question whether there was a reasonable case for using

force against Iraq under Resolution 1441 changed to providing an unequivocal

assurance that force was lawful.201 This question required Lord Goldsmith to go

further.202 Senior officials expressed concern for the possible criminal liability of

192 Ibid, 26 January 2010, at 19, line 17-20, line 10 (Elizabeth Wilmshurst).

193 Ibid, at 97, line 24-98, line 3.

194 Corell, above n 161, at 109.

195 A Chayes “Living History Interview” (1997) 7 Transnl L & Contemp Probs 459 at 480.

196 “The Bush (41st) Administration – Edwin D Williamson (1990-1993)” in Scharf & Williams, above n 4, 87 at 90 (the USSR’s dissolution in 1989).

197 Ibid, “The Bush (41st) Administration – Michael J Matheson” 95 at 96 (Resolution 687 (1991)).

198 Ibid, “The Bush (43rd) Administration – John B Bellinger III (2005-2009)” 135 at 143.

199 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 55, line 21-56, line 4; 66, lines 5-16 (Lord Goldsmith).

200 US President Johnson’s Attorney General wrote an opinion of just 28 words: “Sir: I am of the opinion that the persons charged with the murder of the President of the United States can rightfully be tried by a military court”: L Huston The Department of Justice (Praeger, New York, 1967) at 26.

201 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 22, line 21-23, line 2; 24, lines 8-14 (Mr David Brummell).

202 Ibid, 27 January 2010, at 172, lines 1-13 (Lord Goldsmith).

the armed forces and civil service personnel assisting the military effort.203 The

Attorney General considered that no one else could answer that question.204

Following further reflection his “concluded” view was that the revival argument

could be made.205 He asked himself where the balance came down after weighing

up all arguments.206 Returning to the theme of lawyers as players and umpires,

the question of legality ultimately admitted only one answer: yes or no.207 His

solution was to ask which side of the argument he preferred to be on.208 Answering

that question requires lawyers to appreciate their likely degree of influence.

2. Influential

Advices seek to persuade decision-makers. Persuasiveness depends upon content and a drafter’s experience and credibility. Lawyers cross from the legal domain into policy deliberations depending upon personal prestige, the decision-maker’s respect for their judgement and professional skills including analytical ability and articulateness.209 Thus persuasiveness may turn upon interpersonal considerations as much as depth of knowledge.

A decision-maker’s response will vary. Legal opinions which are “firmly conveyed” can be “firmly rejected.”210 Examples can be found which suggest that response.211 Alternatively decision-makers might not be pleased with an advice but choose to accept.212 Occasionally advices can be “controlling”.213

The Bush administration was reputedly “strangled” by law and anti-terrorism efforts “lawyered to death.”214 International law, for example, has a prominent place in German decision-making provided it has something to say.215

In Columbia international law either plays an insignificant role because a lawyer’s influence is limited and “submissive” or lawyers dominate foreign policy, producing both positive impacts (contributing to legal development) or negative ones (an overly legalistic approach).216

203 Cabinet Office and the Legal Secretariat to the Law Officers “Legality of Military Action in

Iraq: Disclosure Statement” (2006) at [19], [21].

204 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 184, line 17-185, line 16 (Lord Goldsmith).

205 Chilcot Inquiry, Iraq: Legal Basis for Use of Force, Note of Discussion by David Brummell with Attorney General, 13 March 2003 at [1], [2], [5].

206 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 125, line 22-126, lines 4;

20-23 (Lord Goldsmith). See also 169, line 17-170, line 7.

207 Ibid, at 220, lines 17-21.

208 Ibid, at 118, lines 14-19.

209 Bilder, above n 39, at 655.

210 “The Reagan and Bush Administrations – Abraham D Sofaer (1985-1990)” in Scharf & Williams, above n 4, 65 at 72.

211 “Howard rejected Tampa advice” Sydney Morning Herald (Sydney, 23 July 2007) at 1, 6; “PM

denies being told Tampa Act was illegal”, Sydney Morning Herald (Sydney, 24 July 2007) at 4.

212 “The Reagan and Bush Administrations – Abraham D Sofaer (1985-1990)” in Scharf & Williams, above n 4, 65 at 79 (proposed US attacks against Libya).

213 Bilder, above n 39, at 654.

214 Goldsmith, above n 69, at 69.

215 J Frowein “Legal Advice for Foreign Policy in Germany” (2005) 23 Wis Int’l LJ 25 at 38.

216 L Obregon “The Colluding Worlds of the Lawyer, the Scholar and the Policymaker: A View of International Law from Latin America” (2005) 23 Wis Int”l LJ 145.

Decision-makers may wish to keep lawyers at a distance. It is not UK practice, for example, for the Attorney General to comment on the prospective effect of draft Security Council resolutions.217 However, proactive and self- starting lawyers can be actively involved at initial stages offering unsolicited advice.218 This aggressive advisory role requires lawyers to respond to self- perceived concerns.219 For example, it has “always” been FCO culture that lawyers “don’t wait to be asked.”220 Thus, when decision-makers make incorrect or misleading statements, lawyers “jump in and remind people” to keep them “on the straight and narrow”.221 Sir Michael Wood, for example, corrected Foreign Secretary Straw after he made a “troublesome” press statement.222

Similarly, during the Suez Canal crisis, Sir Gerald Fitzmaurice noted that the Lord Chancellor had misinterpreted a passage from Oppenheim during a debate.223 Attorney General Goldsmith also interjected to ensure that decision- makers did not make apparently authoritative statements on the UK’s behalf before he had expressed a view.224 Although not asked, he insisted on offering advice as the political, diplomatic and military questions concerning Iraq developed.225 For those States where the Attorney General is also a Cabinet member, such a presence offers an opportunity to provide advice in context226 so that international law is “taken seriously”.227

Such precautions reduce the likelihood that lawyers are deliberately

excluded because decision-makers anticipate unfavourable outcomes, delay or lost control.228 National exigencies may not permit lawyers to “say no ... just to play it safe”.229 Officials might be tempted to keep lawyers uninformed on initiatives which could violate international law.230 The most notorious

217 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 35, line 18-36, line 8; 37, lines 3-6, 19-22 (Lord Goldsmith).

218 H Corell “Second Legal Advisers’ Meeting at UN Headquarters in New York” (1992-1993)

61-2 Nordic J Int’l L 3 at 3-4.

219 S Schwebel “Remarks on the Role of the Legal Adviser of the US State Department” (1991) 2

Eur J Int’l L 132 at 134.

220 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 7, line 22-8, line 3 (Sir

Michael Wood).

221 Ibid, at 14, line 23-15, line 3; 17, lines 3-8, 22-24.

222 Chilcot Inquiry, Michael Wood, Legal Adviser, to Private Secretary, Foreign Secretary, FAC: Iraq: International Law, 4 October 2002.

223 Marston, above n 112, at 788.

224 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 19, lines 17-23 (Lord


225 Ibid, at 232, lines 12-20.

226 Ibid, at 103, lines 7-11.

227 Ibid, 26 January 2010, at 66, lines 16-24 (Sir Michael Wood).

228 “The Reagan Administration – Davis R Robinson (1981-85)” in Scharf & Williams, above n

4, 55 at 56.

229 Senator Bob Graham, Chairman of the Senate Select Committee in Intelligence, 2002, quoted in B Stephens “The Politics of Liberal Amnesia” The Wall Street Journal (New York,

28 April 2009).

230 “The Reagan and Bush Administrations – Abraham D Sofaer (1985-1990)” in Scharf & Williams, above n 4, 65 at 70.

example for the UK was the 1956 Suez Canal crisis.231 Lawyers were excluded because decision-makers felt that they were “always against our doing anything.”232 Advice was ignored.233 The episode was recalled when assessing the impact upon the UK’s reputation of disregarding international law with respect to Iraq.234 The consequences for States when acting without advice can be severe. Without prior notice, lawyers are left to assist in “after-the-fact containment of a train wreck.”235 The precise moment when advice is sought and given thus proves critical to lawyers being heard.

3. Timely

It is a truism that advices are only accurate at the time they are given. Advice has a “rolling” quality if it requires updating as conditions evolve.236

When decision-makers believe it is the right time to take action, they ask lawyers whether it will be lawful at that particular point in time.237

Timeliness is important if advices are to be useful and effective. As noted

above, international lawyers within government, as contrasted with other international lawyers, are typically integrated into policy-making processes.238

A weather eye must be kept on the possibility of litigation and defending an action before national and/or international fora. Intergovernmental negotiations, for example, can equally undermine the prospects of successfully litigating a claim as applicant.239 With respect to the “torture memos”, a Presidential determination against treaty inapplicability provided the highest assurance that no court could entertain charges that US personnel violated the Geneva Conventions.240 There was also no international court to evaluate US conduct under the Convention against Torture, although investigation by a “rogue” prosecutor from the International Criminal Court was foreseen.241

231 Ibid, Sir Frank Berman, “Foreign Legal Advisers Roundtable”, 169 at 178.

232 A Nutting No End of a Lesson: The Story of Suez (Constable, London, 1967) at 95.

233 Marston, above n 112, at 779-803.

234 Chilcot Inquiry, Minute From Michael Wood, Legal Adviser, FCO to Stephen Wright, Iraq: Legality of Use of Force, 15 August 2002, at [6].

235 “The Reagan Administration – Davis R Robinson (1981-85)” in Scharf & Williams, above n

4, 55 at 60 (mining Nicaraguan harbours).

236 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 40, lines 16-19 (Sir Michael


237 Ibid, 27 January 2010, at 205, line 21-206, line 1 (Lord Goldsmith).

238 Chilcot Inquiry, Statement by Sir Michael Wood, 15 January 2010, at [32].

239 L Taylor “Whaling compromise would break election promise” The Sydney Morning Herald (Sydney, 2-4 April 2010) at 5 (Australia’s negotiations in the International Whaling Commission and its claim before the International Court of Justice). The Office of International Law of the Attorney-General’s Department has provided related advice concerning terrorism at sea and the surveillance of whaling activity: Legal & Constitutional Affairs Committee, Budget Estimates for 2008-09, Supplementary Hearings, Transcript, 20

October 2008 (Bill Campbell QC).

240 J Ashcroft “Memo 9: Letter to the US President” (1 February 2002) in Greenberg & Dratel, above n 53, 126 at 126.

241 J Yoo “Memo 15: Letter to Alberto Gonzalez” (1 August 2002) in Greenberg & Dratel, above n 53, 218 at 220, 222.

If it is unsurprising that potential liability is tied to jurisdictional questions, the availability of an international forum will affect the significance of an advice

– and a lawyer’s roles and responsibility – more so than in the national sphere.

One challenge is that advices must cater for different horizons of national interest. An immediately convenient course may ultimately be a poor choice over the long term. The ideal lawyer “will have in the mind’s eye a more distant horizon, the wonderful possibility of human social progress beyond the dreadful reality of human social evil”.242 He or she has a “special responsibility” – a now-familiar refrain – “to reconcile the heritage of the past with the possibilities of the future in the light of the demands of the present”.243

A State can save itself by taking advice prior to taking action.244 In the UK, for example, legal contributions are given during the initial stages of policy deliberation.245 This approach helps to ensure that the objectives of decision-makers are lawfully achieved.246 Advice is routinely folded into policy materials.247 Lawyers participate from the beginning, appraising decision- makers every step of the way.248 Indeed, policy submissions which fail to recite legal consultation evidence a “cardinal sin”.249 One continuing lesson for the US so as to realise the full benefit of international law is that lawyers need to participate from “a takeoff on policy and not just in a crash landing whenever things go wrong.”250 Lawyers “can either avoid the crash landing or at least help it be much softer” where they contribute to decision-making. Their job is “much, much more difficult” if lawyers have to deal “after the fact with a train wreck”.251 In short, when decision-makers don’t request advice, “it’s almost always a disaster”.252 But even when lawyers are excluded from decision-making, they are always called in to “pick up the pieces”.253

The factual conditions prevailing at the time affect the accuracy of an advice. For example, the permissibility of enforcing no-fly zones within Iraq was “only a respectable argument ... at the time”.254 Although changing conditions made that conclusion “questionable”, it was “still possible on

242 Allott, above n 8, at 23.

243 Ibid, at 20.

244 P Rao, former Legal Adviser, India “Foreign Legal Advisers Roundtable” in Scharf & Williams, above n 4, 169 at 176.

245 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 245, lines 3-7 (Lord

Goldsmith). See also 26 January 2010, at 35, lines 14-16 (Mr David Brummell).

246 Ibid, 27 January 2010, at 102, lines 14-18 (Lord Goldsmith).

247 Ibid, 26 January 2010, at 7, lines 3-15 (Sir Michael Wood).

248 F Berman “Foreign Legal Advisers Roundtable” in Scharf & Williams, above n 4, 169 at 177.

249 Ibid, at 178.

250 Ibid, “The Reagan Administration – Davis R Robinson (1981-85)” 55 at 55.

251 Ibid, Mr Robinson, “Department of State Legal Advisers’ Roundtable” 147 at 164, 167-8.

252 Ibid, at 166 (Mr Sofaer).

253 Schwebel, above n 219, at 134.

254 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 2, lines 5-23 (Mr David Brummell) with reference to the advice of Lord Williams of Mostyn, former UK Attorney General.

balance to argue” that maintaining them was justifiable.255 By way of contrast, Sir Gerald Fitzmaurice’s advice during the 1956 Suez crisis – that using force would be illegal and contrary to the UN Charter – was the same as that given by Sir Gladwyn Jebb during the 1951 Abadan oil incident.256 A lawyer’s tendency towards inflexibility or dogmatism may either be to the benefit or detriment of decision-makers.

Decision-makers, as noted above, may be reluctant to request advice. Lawyers do not need to provide their views until it matters.257 Intermediate solutions include keeping lawyers informed of developments and lawyers offering advice even if not asked.258 Advice is only necessary at particular points in time.259 But when? Sir Michael Wood complained that Lord Goldsmith should have given “rolling” advice as the situation developed.260

There were occasions when he was not requested to advise and, when he was, the final advice was left too late.261 Resolution 1441 had been deliberately drafted to be ambiguous.262 The Attorney General’s advice should have been sought prior to its adoption.263 It became unrealistic for any one individual to halt the political and military momentum. The advice request became an “impediment” that had to be carefully managed and overcome before policy could be implemented.264 Lord Goldsmith was asked not to provide formal advice until requested and he was not asked until the very last moment when it would have been “very, very difficult” to provide a different view.265 The non-transparent manner by which decision-makers orchestrated this process was “lamentable”.266 Lord Goldsmith suggested that his written views were unnecessary until circumstances changed and his oral statements were sufficiently clear.267 Such a perspective poses a further question: in order to be heard, should lawyers provide neutral advice or, to return to an overarching theme, can decision-makers simply be treated like any other client?

255 Chilcot Inquiry, Letter from David Brummell, Legal Secretariat to the Law Officers, to Tom

McKane, Defence and Overseas Secretariat, Iraq: No Fly Zones, 12 February 2001, at [13].

256 Marston, above n 112, at 784 footnote 37.

257 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 57, lines 3-4 (Lord


258 Ibid, at 223, lines 1-21.

259 Chilcot Inquiry, Letter from the Legal Adviser, Michael Wood, to Ms Catherine Adams, Attorney General’s Chambers, 9 December 2002, at [3].

260 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 65, lines 10-20 (Sir Michael


261 Ibid, at 40, lines 2-12.

262 Ibid, 26 January 2010, at 10, lines 16-22 (Mr David Brummell).

263 Chilcot Inquiry, Statement by Sir Michael Wood, 15 January 2010, at [33].

264 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 24, line 23–25, line 7 (Elizabeth Wilmshurst).

265 Ibid, at 25, lines 21-23; 27, lines 1-4.

266 Ibid, at 35, lines 11-16.

267 Ibid, 27 January 2010, at 103, line 24-104, line 5 (Lord Goldsmith).

4. Impartial

There are two schools of thought on whether advice should be impartial.268

The first suggests it need not be. As there is no duty of objectivity divorced from a client’s interests, advices can be tailored to their intended audience given their sophistication and experience. A lawyer’s function is to promote rather than judge governmental objectives using knowledge which no outside lawyer ordinarily possesses.269 Thus, to resolve legal questions the US President can seek input of whatever type he or she considers helpful.270

There is no obvious reason for US presidents to have less freedom than private clients and be unable to solicit advice considered most useful.271 Lawyers must accordingly advise their client on a “sympathetic and knowledgeable basis”: it is more likely that clients will heed advice if they know that lawyers appreciate their needs and objectives.272 States typically seek “sympathetic” advice on how best to justify decisions.273 For that reason the contrary has also been suggested: lawyers must arrive at the best legal conclusion whether or not it is conducive to policy objectives. To become a policy adviser will “doom one’s credibility as a lawyer.”274 Lawyers must offer disinterested or “honest” advice as an umpire rather than a player, irrespective of what clients expect or desire.275 In other words, advices express opinions which are reached independently.

5. Independence

It has been suggested by way of a guideline to “never say no when you could say yes; and never say yes when you must say no”.276 Advices which are overly-tailored to a client’s interests tend to exaggerate, overlook or misstate authority, use convoluted or counterintuitive arguments instead of straightforward ones, and employ inconsistent reasoning or espouse frivolous arguments. Decision-makers and lawyers use different frames of reference. For example, whereas decision-makers may consider speedy military action to be essential, lawyers may be concerned with the question who determines whether non-compliance with Resolution 1441 amounts to material breach?277

The latter may require a further resolution whereas the former warrants

268 Scharf & Williams, above n 4, at 206.

269 G Fitzmaurice “Legal Advisers and Foreign Affairs” (1965) 59 AJIL 72 at 73.

270 R Moss “Executive Branch Legal Interpretation: A Perspective from the Office of Legal

Counsel” (2000) 52 Admin L Rev 1303 at 1318.

271 N Lund “Rational Choice at the Office of Legal Counsel” (1993-1994) 15 Cardozo L Rev 437 at 449.

272 F Berman “Foreign Legal Advisers Roundtable” in Scharf & Williams, above n 4, 169 at 174.

273 Ambassador Lemma, former Legal Adviser to the Ethiopian Foreign Ministry, ibid, at 177.

274 C Harper, ibid, at 175.

275 Ibid, Mr Matheson, “Department of State Legal Advisers’ Roundtable”, 147 at 153.

276 M Sapiro “Advising the United States Government on International Law” (1994-1995) 27

NYU J Int’l L & Pol 619 at 621.

277 Chilcot Inquiry, Iraq: Note of Telephone Conversation between the Foreign Secretary and the Attorney General, David Brummell, 12 November 2002 , at [5].

publicly reserving one’s position.278 Advices should accordingly differentiate between matters with which clients must comply and those where the client’s policy position is determinative.279

“To trim one’s sails to every change of political direction” undermines a lawyer’s contribution.280 A culture of “legal reticence, complaisance and complicity” offers lawyers a “hard choice: let yourselves be neutered as professionals in the law and you may re-emerge as virile policy makers.”281

Tailoring advice to policy imperatives demands a “steep price” when lawyers cease behaving as umpires. At best, the outcome might be an “improvident decision reached by way of inadequate data”. At worst, lawyers who “rubber stamp” policy objectives “risk crossing the line that separates good advice from bad advice, or bad advice from unprofessional advice, or even unprofessional advice from advice that allows a crime to occur.”282 Lawyers will have forfeited their “credentials of integrity” in the process.283

Once again, lawyers reportedly occupy positions of “special trust” calling for exceptional responsibility and occasionally leadership.284 Decision-makers must be alerted to legal issues in a firm and robust manner using “special experience and tact” to retain their confidence.285 International legal violations engender international condemnation and strain relationships.286 Lawyers are expected to “stand tall” for international law, even at risk to personal advancement, and zealously guard their professional integrity in serving the “common weal”.287 For example, Foreign Secretary Straw indicated that it “would be OK if we tried and failed (à la Kosovo)” to secure a further resolution. When Sir Michael Wood indicated that this “was so completely wrong, from a legal point of view”, Jack Straw was unfamiliar with individuals assuming such a firm position.288 Lord Goldsmith also recounted an episode when an Iraqi city was targeted, he stood his ground and it did not occur.289

He also indicated a willingness to provide advice which was not “terribly


278 Chilcot Inquiry, Michael Wood, Legal Adviser, to Private Secretary, Foreign Minister Straw, Iraq: Legal Basis for Use of Force, 24 January 2003, at [2].

279 B Selway “The Duties of Law yers Acting for Government” (1999) 10 Public L Rev 114 at


280 Allott, above n 8, at 17.

281 Franck, above n 29, at 10.

282 P Sands “Torture Team: The Responsibilities of Lawyers for Abusive Interrogation” (2008) 9

Melb J Int’l L 365.

283 Franck, above n 29, at 4.

284 Allott, above n 8, at 15.

285 H Corell “Cooperation Among Legal Advisers on Public International Law” in United

Nations Collection of Essays, above n 36, 97 at 108-9.

286 Scharf & Williams, above n 4, at 203.

287 T Franck “What Happens Now? The United Nations after Iraq” (2003) 97 AJIL 607 at 620.

288 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 30, line 23-31, line 10 (Sir

Michael Wood).

289 Ibid, 27 January 2010, at 223, lines 15-21 (Lord Goldsmith).

290 Ibid, at 23, lines 19-20.

Even assuming that lawyers owe a duty to international law or to “the system” and not merely fiduciary duties to immediate clients, the source of such an obligation is unclear and at best weak. There are no obligations arising from being an officer of any court comparable to their nationally-orientated counterparts. Nevertheless, Columbian lawyers, for example, are reputedly “guardians of the Tradition” to ensure respect for international law.291 Even former decision-makers acknowledge that lawyers must keep them within the law.292 The “system” could include upholding human rights293 and achieving the “most just” solution.294 Lawyers should maintain the honour and dignity of their profession as essential agents of the administration of justice.295 They are moreover expected to provide advice with a proper sense of professional responsibility and integrity,296 thereby establishing a consistent understanding of legal principles or universal conscience juridique.297

But independence also envisages resignation. In what circumstances is it too difficult to provide advice, requiring lawyers to abdicate their role? Lawyers cannot unilaterally decide to not indicate their opinion because their function is to provide “correct” rather than “acceptable” advice.298 To be effective, however, “the exit door must always be open”: when governments refuse to follow advice considered essential, lawyers are supposed to resign.299

This expectation reputedly arises from an obligation owed to the State as client rather than the government.300 Resignation might also simply lead to the appointment of a more “flexible” lawyer.301

Elizabeth Wilmshurst gave three reasons for resigning. First, it was “unfortunate” that Lord Goldsmith changed his provisional view following private discussions with several negotiators rather than objectively assessing Resolution 1441 and the published preparatory work.302 She could not in good conscience concur with his final opinion.303 Second, the safest route

291 L Obregon “The Colluding Worlds of the Lawyer, the Scholar and the Policymaker: A View of International Law from Latin America” (2005) 23 Wis Int’l LJ 145 at 170, 171.

292 M Fraser “Torture Team: Human Rights, Lawyers, Interrogations and the ‘War on Terror’ - A Response to Philippe Sands” (2008) 9 Melb J Int’l L 381.

293 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 1990, Basic Principles on the Role of Lawyers at [14].

294 Koskenniemi, above n 83, at 496.

295 Basic Principles on the Role of Lawyers, above n 293, at [12].

296 A Watts “International Law and International Relations: United Kingdom Practice” (1991) 2

Eur J Int’l L 157 at 164.

297 O Schachter “The Invisible College of International Lawyers” (1977) 72 Nw U L Rev 217 at


298 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 236, lines 14-18 (Lord


299 C Harper “Foreign Legal Advisers Roundtable” in Scharf & Williams, above n 4, 169 at 180.

300 Ibid, Mr Andrews “Department of State Legal Advisers’ Roundtable” 147 at 154.

301 Corell, above n 285, at 110.

302 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 17, line 15–18, line 15 (Elizabeth Wilmshurst).

303 Chilcot Inquiry, Letter from Elizabeth Wilmshurst, Deputy Legal Adviser, FCO, to Michael

Wood, 18 March 2003, at [1], [2].

of securing a second resolution should be followed when contemplating invasion, regime change and occupation. For the UK to act contrary to the UN Charter, as she perceived the government to be doing, would damage its reputation as a State committed to the rule of international law.304 This position echoed Sir Gerald Fitzmaurice’s view that the UK’s use of force would breach the UN Charter as an act of aggression.305 Third, Ms Wilmshurst was uncomfortable supporting the UK’s position before international fora.306

Sir Gerald Fitzmaurice contemplated resignation for a similar reason.307 Sir Michael Wood, by contrast, carried on because conscience raises “individual questions” and a “whole host” of resignations would be disruptive.308

Independence, however, is not without constraints. These include accessing sufficient resources, including personnel. It is difficult, for lawyers as players, to advise without adequate information.309 Lawyers depend upon clients for factual assessments.310 Independence, however, does not require resisting decision-makers. Nor does international relations “pit lawyers, bent on upholding some established legal principle, against policymakers intent on violating it”.311 But advices which uncritically legitimate or extend executive power ought to be resisted.312 Policy demands or momentary expediencies, for which lawyers cannot be “naive or unaware”, tempt departure from the “straight and narrow”.313 However, lawyers risk becoming unpopular or ineffective where they challenge prevailing trends. Personal courage or professional integrity offer no solution.314 As a general rule, lawyers should contribute to policy development from the outset and not be gagged until after it has been determined.315

III. Conclusions

Although some attention has been given to the relationship between international lawyers and decision-makers, an essential tool of the trade - the advice – has attracted little comment. Recent advices on the use of torture and military force have drawn considerable criticism. The controversy is partly

304 Chilcot Inquiry, Statement by Elizabeth Wilmshurst, 18 January 2010, at [7].

305 Marston, above n 112, at 787.

306 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 23, lines 17-25 (Elizabeth


307 Marston, above n 112, at 807.

308 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 64, lines 4-10 (Sir Michael


309 Marston, above n 112, at 791.

310 Chilcot Inquiry, Transcript of Proceedings, 27 January 2010, at 164, lines 8-12 (Lord


311 Rogers, above n 80, at 46.

312 Goldsmith, above n 69.

313 Chilcot Inquiry, Transcript of Proceedings, 26 January 2010, at 10, line 22–12, line 4 (Elizabeth Wilmshurst).

314 Franck, above n 29, at 10-11.

315 Rogers, above n 80, at 41.

attributable to the notion that lawyers are accountable to “the system” over and above their professional responsibilities, including fiduciary obligations to an immediate client. As an overarching theme, a lawyer’s accountability for the advice rendered ought to be higher when the prospect of judicial or public scrutiny is remote. In these circumstances, identifying relevant benchmarks to assist the preparation of an advice appears desirable, particularly if the episodes studied by this paper reflect some form of systemic error rather than transitory aberration. Advices provide the opportunity for government lawyers to bring the actions of decision-makers within the framework of international law. Much is made of a “special responsibility” which distinguishes government international lawyers from other international lawyers. But it is also true that the government setting offers its own complicating considerations. Lawyers themselves can also choose to act as players or umpires. Be that as it may, normative standards can usefully inform lawyers when asked to advise on difficult questions, preserve their essential functions and facilitate the provision of correct advice. A “principled” approach requires an accurate assessment of international law, clearly identifies conclusions, risks and practical alternatives, is the product of an independent professional judgement, authoritatively addresses the question posed, is persuasive, defensible and timely, provides certainty given factual conditions, can be developed collaboratively and is impartial to some degree. Each item in this proposed laundry list of desired attributes is not without its own deficiencies and indeed their application may not yield a different outcome. Nevertheless, they establish a starting point so that lawyers are more likely to “get it right” and “be heard” by decision- makers.

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