Tuesday, May 31, 2011

Die Walküre and the Law: Brünnhilde, Meet Ollie; Wagner's Chilling Dilemma: Do I Obey the Leader or the Law?

The following is the text of an article about Oliver North's participation in the so-called Iran-Contra matter, originally published on June 4, 1989 by The Washington Post. The article was written by Georgetown University Law professor David J. Luban. 

THE TRIAL of Oliver North is behind us, and now Wagner's "Ring of the Niebelung" is upon us. But how many in tonight's audience of "Die Walkurie," the second opera in Wagner's great cycle, will recognize that its central moral problem and that of the North trial are exactly the same? It is, indeed, the central moral and legal problem facing any subordinate government official in a system devoted to the "rule of law, not of men": Which should I follow, the leader's will or the law's word?

A synopsis of the opera is in order. Wotan, king of the gods (played in the last Washington production by Ronald Reagan), derives all of his power from laws and binding agreements-covenants like our own Constitution. Though laws are the source of his power, he chafes at the fact that he must comply with them: "I became ruler through contracts; by my contracts I am now enslaved."

Wotan's defense and foreign policy has been to create puppet armies "through shady treaties deceitfully binding," who will fight on the gods' behalf (as in, say, Central America). Now, to face a new emergency (call it the Sandinistas), Wotan needs an ally not bound by his own laws, and so he agonizes: "How can I create a free agent . . . who by defying me will be most dear to me?"

Fans of the opera know his solution: He fathers the twins Siegmund and Sieglinde, whose incestuous and adulterous love will itself beget Siegfried-the hero Wotan needs for an ally. (Wagner characterizes Siegfried as brainless, fearless but irresistably strong-a role rather badly performed by the contras. And dare we suggest that the alliteration twins Singlaub and Secord can stand in for Siegmund and Sieglinde?)

But Wotan is caught by his wife Fricka (Congress, speaking through the Boland Amendment). As the goddess of marriage, Fricka is indignant. She compels Wotan to sacrifice Siegmund's life to preserve the law against incest and adultery.

Wotan's favorite child is the warrior-goddess Brunnhilde (stunningly portrayed by Ollie North). She loves her father and identifies with him completely: "Who am I if not your will?" asks Brunnhilde. And when, with heavy heart, he orders her to ensure Siegmund's death to comply with the law, Brunnhilde, knowing this is contrary to Wotan's deepest wish, disobeys him.

Here opera and reality seem to part ways. As far we we know, Ronald Reagan never ordered anyone to comply with the Boland Amendment; to the contrary, North's defense claims Reagan virtually ordered North to disobey. (Reagan was a less faithful servant of the law than Wotan.)

Of course, the trial evidence reveals nothing so explicit as a direct presidential order to resupply the contras illegally. Rather, Reagan merely made no secret of his real wish, and North, like Brunnhilde, took that wish as his command. So reality was faithful to the opera, after all.

The climax comes in Act 3, Scene 3 as Wotan prepares to deal with Brunnhilde's treason. Her defense is that "faithful to you inwardly, I disobeyed your order . . . . My own intelligence told me only one thing: to love what you love." To which Wotan bitterly replies, "So you did what I wanted so much to do, even though necessity forced me not to do it? . . . . Against myself I had turned in agony . . . . You have renounced me. I must keep away from you."

What if Oliver North receives a presidential pardon? This too has been anticipated by Wagner. At the end of "Die Walkurie," Wotan partly relents and mitigates the harshness of his sentence. "Farewell, you bold, wonderful child!" he sings as he leaves Brunnhilde. "You, my heart's holiest pride, farewell, farewell, farewell!" It's mushier than Ronald Reagan calling North a real American hero, but the leader's sentiment is the same: Though you have broken the law, I love you all the more for doing so. Did Brunnhilde and North do wrong? That depends in large measure on what we think of the policies they pursued. I find Ronald Reagan's Central American policies as odious and ill-conceived as Wotan's disastrous brainstorms; you may disagree, so I concede the point for the sake of argument. And I will ask North's supporters to concede, also for the sake of argument, that resupplying the contras violated the Boland Amendment. Now, what can we say?

First, we must realize that the dilemma is scarcely unique. Whenever an administration wishes to change course, and indeed whenever it faces a hostile Congress, it will find itself hemmed in by laws it doesn't like. As we have often seen, that administration's political appointees will be sorely tempted to implement the new policy, disregarding the law or looking for loopholes. How, then, should lower-level personnel respond when they are given legally questionable orders?

I recall a conversation with a former law school colleague preparing to enter the Reagan administration as general counsel for a Great Society agency that was anathema to Ronald Reagan. He said to me, with some satisfaction, "My job is to dismantle my agency." He took the agency's ideological new director to be his client, and by dismantling the agency he was merely doing the client's bidding-or so he thought.

As a teacher of legal ethics, I was appalled. It is axiomatic that an organizational lawyer's client is the organization itself, and this organization's aims were set by Congress. My colleague proposed to disembowel his own client by placing Ronald Reagan's will over Congress's word. This seemed doubly wrong: disloyal to the client and disobedient to the law. Yet obviously his dilemma was a real one, for if he had defended the agency against the president's wishes he would not have lasted two weeks on the job. Oliver North's dilemma was no different.

The second, infinitely more important point is that my colleague and North were wrong-because Wotan was right. The president is a creature of the law; he is constrained by the law and cannot place his policies above it. And what if his Brunnhilde-like subordinates know that his wish-to disobey the law-runs in a different direction from his word-to obey it? They must ignore that knowledge of his wish and stay with his word. For otherwise we will be ruled by a government in which the president's subordinates willingly execute illegal policies authorized by the president's body English even though they are unauthorized (and perhaps in fact prohibited) in spoken or written English.

Let us not forget that it was in Nazi Germany that legal philosophers proposed the theory that the Fuhrer's will was law. Thus monstrous policies were executed, with no public directives whatever documenting the perpetrator's responsibility. None were needed, for subordinates knew their leaders' hearts as Brunnhilde knew Wotan's.

The message remains fresh today. We must never forget the opposite of "the rule of law, not of men" is the rule of men, not of law. And, as the authoritarian '80s draw to a close, we must remind ourselves that there is more to law than the leader's will.

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