Golden Shields

Former OLC head, and now Harvard Law School Professor, Jack Goldsmith has an extremely important post on the Executive Functions Substack he shares with former White House Counsel Bob Bauer. You may have noticed that the U.S. Navy has been blowing boats, and people, into bits on the high seas. The attacks have ramped up recently, with a New York Times article [gift link] on October 28, 2025, reporting that 14 people were killed in 3 separate strikes, bringing the death toll for the operation to 57. A more recent article in the Washington Post updated the death toll to 76.

Defense Secretary Pete Hegseth has referred to the victims as “narco-terrorists,” members of a designated terrorist organization [different NYT gift link here], or enemy combatants who can be targeted with lethal force. These descriptions suggest that the legal authorization for the military operation has something in common with the legal basis claimed by previous presidents for actions such as President Obama’s targeted drone strike campaign against al-Qaeda terrorists located outside of Afghanistan. (The asserted legal basis was set out in a Presidential Policy Guideline, obtained by the ACLU under FOIA.) Trump’s own statements about the strikes have been characteristically wildly exaggerated, callous, and head-scratching:

“Every one of those boats is responsible for the death of 25,000 American people, and the destruction of families,” Trump said in an Oct. 5 speech to U.S. Navy sailors. “So when you think of it that way, what we’re doing is actually an act of kindness.” . . .

“We’ve taken a very hard stand on drugs … the water drugs — the drugs that come in through water they’re not coming — there are no boats anymore, frankly there are no fishing boats, there’s no boats out there period,” Trump told Canadian Prime Minister Mark Carney on Oct. 7. “We’ve probably saved at least 100,000 lives, American lives, Canadian lives, by taking out those boats.”

As PBS dryly observes, “if Trump’s statement were accurate, the strikes on five boats in less than two months would have saved nearly double the number of U.S. lives lost to drug overdoses in an entire year.”

The boat strikes are is a dramatic departure from past practice, in which the U.S. Coast Guard treated drug interdiction as a law enforcement problem, detaining boats and arresting occupants, but not peremptorily blowing them apart with Hellfire missiles launched from drones or helicopters. There are criminal penalties for drug smuggling, but they do not include death, and certainly not death without a fair trial. Since the unjustified killing of civilians would be a crime under domestic criminal law, the Uniform Code of Military Justice, and the international law of armed conflict, it matters a great deal to ordinary officers and enlisted personnel involved in this operation whether the killings are legally justified.

Very little is known about the administration’s theory, however:

The White House has said the killings are lawful. It cited a notice to Congress in which the administration said President Trump “determined” that the United States is in a formal armed conflict with drug cartels and that crews of drug-running boats are “combatants.” It has not supplied a legal theory to bridge the conceptual gulf between drug trafficking and an armed attack.

The Washington Post is now reporting [gift link] that the legal theory is that the United States is involved in a non-international armed conflict and Trump is acting pursuant to his Article II authority.

Marty Lederman has analyzed the purported legal basis for the claimed authority to carry out the strikes. His analysis, which was based on an earlier War Powers report by the administration to Congress, correctly predicted that the administration would not rely on any existing statutory authority, such as an authorization to use of military force (AUMF) and that the State Department’s designation of the Tren de Aragua gang as a foreign terrorist organization would not provide a basis for the use of deadly force.

Lederman notes that presidents from both parties in recent years have made increasingly aggressive assertions of their authority as commander in chief of the armed forces to direct the military to use deadly force in contexts that do not involve threats to the United States. His doubts about the legitimacy of the use of deadly force in these situations are greatly increased where the strikes are directed against civilians (Lederman’s emphasis):

Even if those assertions of authority were defensible, however, they didn’t involve the deliberate targeting of civilians, and I’m not aware of any basis for the extraordinary notion that either the Commander-in-Chief Clause or any implied constitutional “foreign relations” authority affords the President the power to order the military to kill any and all persons around the world who might (in the President’s view) be planning to commit crimes in the United States or otherwise be up to no good, particularly not in situations, like this one, where the military could prevent the suspected criminal activity with actions far short of lethal force. That’s why there’s virtually no historical precedent of any president ordering lethal force in a situation such as this.

Moreover, even if the strikes were within the president’s Article II authority, that authority is still constrained by criminal statutes, including federal criminal law and the Uniform Code of Military Justice. There is a legal gap – which would be quite significant if you were one of the naval officers launching a missile from a helicopter or drone – between the president’s constitutional authority and the criminal law. Lederman again:

The Office of Legal Counsel has concluded (see pp. 12-30 here) that this and related federal criminal prohibitions do not apply if the targeted person is a member of enemy armed forces in a congressionally authorized armed conflict and the targeting conforms to the laws of armed conflict and other international law constraints. But that isn’t the case here: There’s no armed conflict (let alone one Congress has authorized) and the persons on the boat weren’t members of an armed force that has attacked the United States.

Understandable concern about the illegality of the orders to strike the Venezuelan vessels may have led to the resignation of a three-star admiral heading up U.S. Southern Command. In any event, if you were a helicopter pilot or drone operator in the Navy and your mission was to hit these boats, you’d be thinking about potential criminal liability for murder.

Which is where the lawyers (and the legal ethics issues) come in . . .

Preemptive Pardons

As Jack Goldsmith explains, the Attorney General has delegated to the Office of Legal Counsel (OLC) in the Justice Department the function of advising the president on compliance with law. Advice that a proposed course of conduct is lawful functions like an advance pardon:

When the DOJ advises the president or another officer that a proposed action complies with federal criminal law, that opinion effectively guarantees immunity from prosecution by a later administration.

This is largely the result of a doctrine called “entrapment by estoppel,” under which it would be a due process violation to prosecute a person who reasonably relied on a legal opinion that the conduct in question was lawful. (This is an exception to the usual rule that mistake of law is not a defense to criminal charges.) The upshot is that an OLC opinion has prospective immunity-conferring power. A former general counsel of the CIA referred to this as a “golden shield.”

[Aegis, the golden shield of Zeus]

A golden shield having been conjured up by the OLC, the administration can now take the position that an order to blow up a Venezuelan boat is a lawful order that must be obeyed. The Post reports:

A Justice Department spokesman said: “The [boat] strikes were ordered consistent with the laws of armed conflict, and as such are lawful orders,” “Military personnel are legally obligated to follow lawful orders and, as such, are not subject to prosecution for following lawful orders.”

Neat trick, eh? In my own scholarship, I tend to focus more on legal advising and compliance counseling as raising more difficult ethical issues than representing clients in litigation, The reason is that an aggressive, creative, forward-leaning, or whatever you want to call it position in litigation will be countered by opposing counsel, evaluated by a judge (with the assistance of a smart law clerk in federal court) and subject to appellate review. When lawyers are acting as advisors, on the other hand, in a very significant sense they are private law-givers. Some legal opinions or advice may of course be publicly disclosed and challenged, but plenty of advice is given in private, relied upon by the client, and never subjected to adversarial testing.

This is why it drives me round the bend when lawyers refer to the obligation of “zealous advocacy” in non-litigation contexts. There’s no advocacy going on here – it’s a quasi-judicial role. A golden shield opinion should not be based on an argument so aggressive that it would barely pass Rule 11 standards if asserted in litigation. Maybe it does not have to reflect the best view of the law, but it should certainly represent a view that is comfortably within the mainstream of positions that are accepted by the community of lawyers who are experienced and knowledgeable about the relevant fields – domestic and international criminal law, the law of armed conflicts, the relationship between criminal law and the president’s Article II authority, and so on. California Senator Adam Schiff is making this point when he is quoted in the Post article as saying the OLC opinion reads as if someone had said to a lawyer, “Give me the best possible rationale for why this is legal — be as inventive as you like.”

Yes, I know, lawyers don’t always agree, and there may be subcommunities that are more or less favorable to expansive claims of executive authority or the scope of the law of armed conflict. Borrowing an image from the English legal philosopher H.L.A. Hart, lawyers understand that legal rules have a core of settled meaning and application, surrounded by a penumbra of instances in which reasonable lawyers may disagree about the application of the rule. There are a couple of significant analytical mistakes that often follow from this observation. One is that the same interpretive constraints apply to advising contexts as litigation. That is, if a legal argument barely satisfies Rule 11 scrutiny it is, for that reason, sufficient as a basis for advising the client that something is permissible.

The deeper mistake – and the core of the critique of the idea of golden shield opinions – is that, once you’re out in the penumbra, anything goes and all legal arguments are equally good. That’s not how law works, however. The penumbra is not made up of cases with the same level of uncertainty as to their correct resolution. It’s more like a continuum on which legal conclusions may be evaluated as more or less well supported. Some arguments are novel but fairly plausible; others are way out there and almost certainly a loser if they were ever litigated.

As the Post article notes, we’ve seen this movie before. Following the 9/11 attacks, the Bush administration wanted to take the gloves off when dealing with prospective terrorists. The late former Vice President Dick Cheney, Secretary of Defense Donald Rumsefeld, and other officials within the Defense Department pushed hard for legal authorization to employ what they referred to as “enhanced interrogation techniques,” which are more commonly known as torture, to extract information from detainees. It fell to the OLC to provide a golden shield opinion for interrogators from the uniformed services as well as other governmental agencies such as the CIA. Two OLC lawyers, John Yoo and Jay Bybee, provided the opinions which, when they were publicly disclosed, were severely criticized for the strained quality of their legal reasoning. Maybe the arguments would have avoided sanctions under Rule 11 if asserted in litigation, but they were so far outside the mainstream that they were withdrawn by a new head of OLC, the aforementioned Jack Goldsmith.

I wrote a lot about the torture memos back in the day and I heard many arguments form lawyers and law professors that basically amounted to, if a position barely passes the straight-face test, it is a sufficient basis for advice that something is lawful. Some lawyers went farther and denied what I asserted above, which is that there is a continuum of plausibility, and some arguments are better than others. One questioner at a talk I gave was so insistent about this that I kind of lost it, and responded that if he believed that, he couldn’t grade his students’ constitutional law exams based on how well they did at analyzing fact patterns based on the relevant cases and interpretive methodologies. That’s why Goldsmith withdrew the OLC opinions authorizing torture. They weren’t good enough. They did not represent a good faith account of what the law is, as opposed to an argument that a lawyer might assert in court without the judge busting out laughing, or imposing sanctions.

No, I don’t think the head of OLC should be subjected to a disciplinary proceeding for providing this opinion, even if it is as implausible as knowledgeable commentators suggest. For one thing, it’s hard to find a basis in the rules of professional conduct for imposing discipline in these cases. I thought about this a lot in connection with the torture memos and the best I was able to come up with is the requirement in Rule 2.1 that a lawyer exercise independent professional judgment and render candid advice. (The DOJ’s Office of Professional Responsibility considered that as a basis for the discipline of John Yoo, but their recommendation was rejected by the Deputy Attorney General. See this article by Milan Markovic for a good overview of the proceedings.) The ethics of providing golden shield opinions has to come down more to professional craft, the traditions of an office like the OLC, and reputational concerns, not enforcement of rules of professional conduct.

Rely at Your Peril?

In the Post article, Sen. Schiff is quoted as saying

that he saw legal risk to service members for participating in these operations. “I would certainly not want to rely on the rationale I’ve read,” Schiff said.

To which a service member involved in the Venezuelan boat strikes would presumably respond “yikes!” Sen. Schiff has had access to the OLC opinion that most of us have not (although Marty Lederman apparently did a very good job reverse-engineering what it must say), and in any event, the whole point of legal advice is that people subject to legal restrictions need expert professional assistance to determine what the law permits or requires. The promise of a golden shield is that it is the fact of the opinion having been issued, not the quality of the legal analysis it contains, that provides the desired prospective immunity. To again borrow a concept from H.L.A. Hart, this is a content-independent reason for affected service members.

The efficacy of a golden shield opinion depends on the defense of entrapment by estoppel. The Ninth Circuit, which has a well developed body of law on this doctrine, defines it as follows:

To establish this defense, the defendant has the burden to show by a preponderance of the evidence that:

First, an authorized [federal government official] [agent of the federal government] was empowered to render the claimed erroneous advice;

Second, the [federal government official] [agent of the federal government] had been made aware of all the relevant historical facts;

Third, the [federal government official] [agent of the federal government] affirmatively told the defendant the proscribed conduct was permissible;

Fourth, the defendant relied on the false information; and

Fifth, this reliance was reasonable.

The fifth element is obviously the sticking point here. Would it be reasonable for a helicopter pilot or drone operator, or a higher-ranking officer involved in directing these strikes, to rely on the OLC opinion? The jurisprudential insight, and the reason I mentioned Hart, is that the answer to this question has to be content-independent. That is, it cannot be the case that reliance is reasonable just in case the legal position taken in the opinion is sufficiently well supported. That would be nuts, because it would basically be asking Navy Lieutenant Jones, in command of an MH-60 Seahawk helicopter employing Hellfire missiles against Venezuelan boats, to second-guess the legal advice given by a senior official in the Justice Department. Lt. Jones may be a good helicopter pilot, but not much use as a lawyer.

Thus, the Ninth Circuit test for the fifth element asks whether there is anything about the circumstances that would put a reasonable person on notice that they should inquire further:

Reasonable reliance occurs if “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.” Lynch, 903 F.3d at 1077 (citation omitted). See also Batterjee, 361 F.3d at 1217 (holding that defendant dealing with complicated intersection of immigration and criminal law, who was told by federal licensee that he was “legally purchasing and possessing a firearm,” could reasonably rely on those assurances because he had no reason to believe he needed to inquire any further).

Even if Sen. Schiff is correct in his assessment that the rationale in the OLC opinion is fairly thin, it does not follow that service members cannot rely on it, unless there is something about the situation that put them on notice that they need to inquire further. Granted, this administration has been consistently contemptuous of the idea that there can be any legal restrictions on the president doing pretty much whatever he wants. But it is significant – and Goldsmith mentions this too – that the administration did go to the trouble of obtaining an OLC opinion before beginning the boat strike campaign. That suggests they were not simply intending to evade the law. The “sincerely desirous” test for reasonable reliance refer to the person whose conduct is in question – our hypothetical Lt. Jones – not the president or the Attorney General or the head of OLC.

Thus, the golden shield will have its effect. The consequences of straining too hard to reach a legal result that is not supported by a good faith reading of existing law and the use of reasonable interpretive methodologies will not fall on Lt. Jones, or on the OLC lawyer who prepared the memo, but on the occupants of boats in the Caribbean deemed by the administration to be drug traffickers.

And that sets the terms for the broader moral analysis, but enough said on this for now.