Remarks on the Role of the Legal Advisor of the US State Department

Conclusion

The weight given by the US Government to the advice of its international lawyers somewhat depends on the nature of the issue and the decision-makers involved. In the routine run of matters in which legal considerations play a part, the position of the LA is regularly factored in and generally followed. But when a bureau has decided to contest or ignore the advice of its Assistant LA and pursue a course of action which in his view violates international law, the Assistant LA will inform the LA of the bureau's intentions. If the LA supports his colleague's position, he will confront the member of the bureau involved, lending his voice to the negative advice already given. If the member of the bureau still refuses to conform his behaviour to the advice proffered, the LA may present the issue to a higher authority within the bureau, usually an Assistant Secretary of State, often in the form of a legal memorandum. This memorandum may contain a summary of the position taken by the bureau, a review of the other options for dealing with the issue, and the legal grounds upon which the LA's Office bases its refusal to clear the bureau's position. If the Assistant Secretary of State sustains his bureau's position, the LA may appeal to an Under-Secretary of State. If the Under-Secretary refuses to accept the Office's advice, the LA can bring the matter to the attention of the Secretary of State. Although it is the official duty of the LA to ensure that the Secretary of State takes no action in violation of the legal obligations of the United States, and the LA is therefore required to inform the Secretary if such action is about to be pursued in his name (all actions of the State Department are nominally the responsibility of the Secretary of State) in practice the LA may personally contact the Secretary of State only if he is confident in the personal relationship they enjoy. If the LA has ready personal access to the Secretary, or, failing that, if he knows he will be given the opportunity to present his position on an issue following the submission of his memorandum, it's very different than if he has to rely on that memorandum alone. These intangibles actually have a great impact on the disposition of the issue.

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