Opinion Letters Authorize Kill Shots

For transactional lawyers opinion letters are a familiar part of corporate – commercial practice. Their purpose is to provide “comfort” on a legal issue central to the transaction by using the reputation of the firm issuing the opinion letter to assure a non-client that for example, a lender has a perfected, valid, first position security interest in the borrower’s assets while reducing the liability of the firm issuing the opinion letter as much as possible.

Opinion letters also play a role in the law of war. That was certainly true during the administration of George W. Bush.Think of the now highly contentious opinion of John Yoo authorizing “enhanced interrogation” techniques. As described in a new book, Power Wars: Inside the O’bama’s Post 9/11 Presidency, Pulitzer Prize winning NYT reporter Charlie Savage, describes how President Obama, like George W. Bush, relied on legal opinions to shape his administration’s policies in the war on terror.  For example, in a recent NYT article, Savage describes four opinion letters authorized the killing of Osama bin Laden. The title of the article is “How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden.”   It would be interesting to review those opinion letters to examine the legal basis for their conclusions. It may be that the basis for those opinion letters was, at least in part, the law of perceived necessity, the necessity being the demands of national security. In a time of war and armed conflict it is fair to observe that the law is often malleable (think of the Supreme Court’s decision in Korematsu).If that is the case one may fairly ask in a time of war “what is law?” and “what is a lawyer’s responsibility when asked to interpret law for the Commander-in-Chief?” Anyone interested in thinking about those questions may be interested in Jack Goldsmith’s The Terror Presidency: Law and Judgment Inside the Bush Administration. See also the Wikepedia entry for “The Constitution is not a suicide pact,” and Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard A. Posner.

Opinion letters,whether in the context of corporate-commercial transactions or in the context of the war on terror, are examples of how much the judgment of lawyers matter.