ABSTRACT Not so long ago, legal advice given to President George W. Bush regarding torture sparked considerable controversy, and discussions were frequently distorted by rancorous partisanship. The present essay uses advice given to President Franklin Roosevelt by Attorney General, later Justice, Robert Jackson as a laboratory for exploring the ethical dimensions of the advisory relationship. In particular, this essay examines the president’s unilateral decision in 1940 to transfer fifty destroyers to the British. That Destroyer Deal is distant in time and is now relatively uncontroversial. Today, everyone agrees with the substantive policy of helping Great Britain against Nazi Germany. The parallax between torture today and helping the British then enables us to factor partisanship and substantive policy more or less out of our judgment. To facilitate the Destroyer Deal, Jackson wrote a legal opinion for the president that Jackson knew was contrary to law. I have concluded that Jackson did the right thing, and this essay explains why. In particular, I draw upon but modify Michael Walzer’s well-known exploration of the problem of dirty hands. The latter part of the essay applies the lessons gleaned from Jackson’s experience to the advice regarding torture that President Bush received from his attorneys. On balance, I conclude that President Bush’s lawyers did the wrong thing, but I explain why others might disagree.
William Casto. "Advising Presidents: Robert H. Jackson and the Problem of Dirty Hands" ExpressO
Available at: http://works.bepress.com/william_casto/1/