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Bad Advice

Bush’s Lawyers in the War on Terror

Harold H. Bruff

April 2009
400 pages, 6-1⁄8 x 9-1⁄4
Cloth ISBN 978-0-7006-1643-5, $34.95

WINNER OF THE 2008 PALMER CIVIL LIBERTIES PRIZE

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

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

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

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

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

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

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

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

 

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