Armed Democracy

Jack Goldsmith was a first-term Bush appointee who, from October 2003 to July 2004, headed the Justice Department’s Office of Legal Counsel. OLC provides legal advice to the president and the executive branch. Like his predecessors, including such luminaries as William Rehnquist, Antonin Scalia, and Theodore Olson, Goldsmith dealt with classified information and opined on highly sensitive legal issues. Necessarily for Goldsmith, many of his opinions dealt with the war on terrorism.

Goldsmith, it became known after he left OLC, withdrew several post-9/11 OLC opinions, including two on interrogation, which critics charged with supporting torture. In The Terror Presidency Goldsmith, now teaching at the Harvard Law School, recounts his labors on the job, the disagreements he had with others in the Bush administration, and his resignation.

As usual with a book by a former Department of Justice official, Goldsmith submitted his manuscript to the department for its review. Officials there told me that he was advised of his legal obligation not to disclose privileged information. They were also concerned that lawyers at the OLC might find themselves less willing to speak their minds for fear that a colleague might be, in effect, taking mental notes for a book. The upshot would be an Office of Legal Counsel less able to offer its best legal advice, a deprivation for any president.

Goldsmith, I am told, accepted some but not all of the “numerous” editorial suggestions made by Justice officials, evidently confident that he was striking the right balance. It’s hard for an outsider to judge whether he did so or not, but it has to be noted that this book runs risks for a department whose importance in the war on terrorism is manifest, and whose finest traditions Goldsmith claims to respect. Even assuming that Goldsmith has not violated legal norms, is it really a good thing–is it seemly–for a former head of the Office of Legal Counsel to unbutton himself about the work he did for his clients, chief among them the president of the United States?

The propriety of writing a book like this is a question that inevitably comes to mind for those familiar with the Department of Justice. It is a fair question. Still, if you can set aside the matter of the book’s seemliness, The Terror Presidency is not uninteresting. The title is unfortunate because Goldsmith is not contending, as some on the left do, that the Bush presidency threatens terror. Rather, Goldsmith uses “the terror presidency” generically, to mean that every presidency for the foreseeable future is going to have to deal with terror. Goldsmith has some important things to say about the difficulties President Bush has faced, and doubtless his successors will face, in combating terrorism, and the advice he offers them–ironically, not so much legal as political, and this from a lawyer who says that before he joined the Bush administration he was not very interested in politics–is worth mulling. But Jack Goldsmith’s own story dominates the narrative.

Goldsmith might not have told his story but for a push from the press. In late 2004, toward the end of his first semester at Harvard, news stories were published associating him with the interrogation opinions, notwithstanding that it was he who had nullified them. Professors asked to comment on their new colleague faulted the school for failing to scrutinize Goldsmith’s apparently nefarious work before it hired him.

But later, in early 2006, Newsweek published a story that painted Goldsmith quite differently–as “the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers.” The story told “a quietly dramatic profile in courage,” of how Goldsmith led other department lawyers in standing up to administration “hardliners” who held expansive views of executive power, chief among them David Addington, Dick Cheney’s chief of staff; and how they fought to bring interrogation and other counterterrorism policies, including those involving surveillance, within the law, with Goldsmith withdrawing the two interrogation opinions.

Goldsmith writes in The Terror Presidency that he liked the Newsweek story better. But he didn’t like being called a hero by Bush critics and worried that their praise “would make it appear, incorrectly, that I had been currying favor in my new environment at the expense of my old colleagues.” Even more, he says, he was concerned about “the Manichean tone of the Newsweek story, a tone one sees so often when the press and intellectuals criticize the Bush administration attempts to balance security and liberty.” His “fights with David Addington and others were not struggles between the forces of good and evil,” between people who love the Constitution and those who would shred it. To the contrary, he writes, all parties were acting “in good faith to protect the country.” Disturbed by the incorrect and conflicting press accounts of his time at OLC, aiming to tell his story on his terms, Goldsmith was shopping a book proposal by the summer of 2006.

A professor at the University of Chicago Law School specializing in international law, Goldsmith came to Washington in 2002 as a special assistant to Jim Haynes, the Pentagon’s top lawyer. The war powers scholar John Yoo, then a deputy at OLC, had recommended him for the job. Yoo worked on counterterrorism issues with White House counsel Alberto Gonzales and Addington, and he was their choice to head OLC in the summer of 2003 when the incumbent, Jay Bybee, became a circuit judge.

Unfortunately for Yoo, his close working relationship with the White House alienated Attorney General John Ashcroft, who blackballed Yoo as Bybee’s successor. Goldsmith writes that he had no desire to advance in the administration and that he had informed Haynes of his intention to return to teaching. But Yoo, who had shaped the law on interrogation that Goldsmith later found problematic, suggested his friend for the position. So did Haynes.

Goldsmith reports that, in the job interview he had with Gonzales and Addington, there was no discussion about his disagreements with administration legal policies, even though Haynes was aware of them. Goldsmith thought that the government needed more elaborate procedures for identifying and detaining enemy combatants; that the administration should “embrace rather than resist” judicial review of its wartime legal policy decisions; and that the administration should have worked with Congress (especially since it was controlled by the same party) to put its counter-terrorism policies on a sounder legal footing. Goldsmith also had been critical of what he saw as “unnecessarily broad assertions of presidential power in an obscure draft opinion” composed by Yoo.

“After an uneventful confirmation hearing,” writes Goldsmith, he soon found himself taking positions at odds with what the White House–meaning Gonzales and Addington–wanted. In his first opinion, he held that the Fourth Geneva Convention applied to all Iraqis, including those suspected of belonging to al Qaeda. Thus, violations of the convention could be punished under the domestic war crimes statute. Goldsmith writes that Addington was “plain mad,” insisting (apparently incorrectly) that the president had already decided the question. But Goldsmith was not asked to change the opinion. It stuck.

Goldsmith also discusses the time he went to the White House to advise that he could not find proper legal footing for “an important counter-terrorism initiative.” Addington’s “angry response” was: “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.”

And then there were the two interrogation opinions. The first, dated August 1, 2002, was addressed to Ashcroft from Bybee, since he was the assistant attorney general for the Office of Legal Counsel. Drafted by Yoo, the opinion provided part of the legal basis, Goldsmith writes, for what President Bush later confirmed were “alternative” interrogation procedures used at secret locations on, among other terrorist leaders, Abu Zubaydah, a top al Qaeda operative, and Khalid Sheikh Mohammed, who planned the 9/11 attacks. The second opinion was from Yoo to Haynes and dated March 1, 2003. Unlike the first opinion, which is in the public domain, having long since been leaked, the second opinion remains classified, though Goldsmith notes public confirmation of the fact that it served as the controlling authority for a Pentagon report that “contained much of the same analysis as” the August 1, 2002, opinion.

The main legal issue in both opinions concerned the effect upon interrogation procedures of a law banning torture and making it a capital crime. The law defined the prohibition on torture narrowly, yet it contained enough ambiguities to require legal interpretation. Yoo has said that the intent behind the first opinion (and thus the second) was to give sufficiently clear guidance so that “our agents would know exactly what was prohibited and what was not.”

The opinion defined torture as acts that cause the amount of pain “associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions.” Acts not meeting that definition were not torture, and if agents actually did commit torture, defenses against criminal prosecution were available–such as the prevention of catastrophic harm and self-defense. The opinion also held that the torture law would be a violation of the president’s constitutional authority if it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”

Goldsmith writes that he found the opinions “deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president.” He withdrew the March 1, 2003, opinion first, but also advised the Pentagon that it could continue the 24 interrogation techniques it had adopted in light of the now rescinded opinion. They still were fully legal.

In June 2004 Goldsmith withdrew the August 1, 2002, opinion. He was not, however, in a position to advise on the legality of the CIA’s specific interrogation techniques. That was left for others to do. The “replacement” opinion provided “a far more rigorous and balanced interpretation of the law,” says Goldsmith. And yet no previously approved CIA interrogation technique had to change as a result of the new opinion.

According to Goldsmith, Addington was the only administration official who was still defending the critical August 1, 2002, memo. Yet Goldsmith doesn’t report that Addington–who gets worse press than anyone in the administration, with the possible exception of his boss–was angry with him for withdrawing the interrogation opinions. Perhaps Addington, who has declined to comment on The Terror Presidency, understood that Goldsmith’s actions would not necessarily affect the interrogation techniques used by the CIA and the military: They could continue as before.

The interrogation opinions weren’t the only ones Goldsmith withdrew. Appearing on an ABC evening news broadcast recently, Goldsmith answered the question of how many by saying the number was “more than two and less than 10.” Doubtless he set a record for the number of OLC opinions overturned within a single administration (and doing so in less than a year). Shortly before Goldsmith resigned, Addington–before a group of administration lawyers, including Goldsmith–said to him sarcastically, “Since you’ve withdrawn so many legal opinions that the President and others have been relying on, we need to know which ones you still stand by.”

“It was a biting point,” Goldsmith comments, “and not entirely unfair.”

Goldsmith writes that he expected his superiors, having had it with so many withdrawn opinions, would tell him when it was time for him to go. But he doesn’t report that they ever did. Rather, it was Goldsmith who told himself to go. Why? Mainly because “important people within the administration had come to question my fortitude for the job and my reliability.”

Goldsmith does not identify these people, though one surely is Addington. Goldsmith’s friendly treatment of Ashcroft and Gonzales suggests that neither became Goldsmith skeptics. Maybe Goldsmith’s point is that he felt isolated. He says he considered resigning on three different occasions, and when he finally decided to resign, he chose to do so on the same day that he advised the White House of his withdrawal of the August 1, 2002, opinion. There was cunning in this: “The timing,” he writes, “would make it hard for the White House to reverse my opinion without making it seem like I had resigned in protest.” Goldsmith got what he wanted; there was no White House reversal.

Was Goldsmith right to withdraw the opinions he did? The Terror Presidency invites that question, but it’s a hard one to answer. Most of the withdrawn opinions and their replacements are classified. So a side-by-side review isn’t possible. It is possible to compare the different lawyering on the interrogation issue, and Goldsmith makes some points against the original opinion, finding serious shortcomings in its interpretation of certain statutes. But he also acknowledges that the opinion was written at a time when the administration had good reasons to worry about a follow-up attack on the anniversary of 9/11. Fear of “bodies in the street,” Goldsmith quotes one ranking Justice official as telling him, is his main explanation for why the opinion was written the way it was.

Goldsmith is candid about the impact of his decision to withdraw the opinion: I had done something I had tried very hard to avoid: I had changed the rules in the middle of the game in a way that potentially jeopardized national security and that certainly harmed an institution I had come to admire, the CIA. .  .  . The agency had been asked to go out on a limb in 2002, and it had demanded and received absolute legal assurances from the Department of Justice and the White House. I had done the unthinkable in withdrawing its golden shield.

He had done that, of course, because he believed that the rule of law, whatever he may have thought about the policy behind it, left him no other choice.

Goldsmith tells his story while also discussing the political and legal context in which George W. Bush has fought the war on terrorism. Goldsmith notes that when the United States entered World War II, “Neither the law nor the legal culture presented any real threat to aggressive presidential action.” Since then the courts have placed constraints on executive power, some of them a result of the civil liberties revolution. And Congress, which has come to have less regard for the presidency, has passed laws affecting executive action in wartime. As was not true when Franklin Roosevelt set up a military commission to try the eight Nazi saboteurs captured in the United States in 1942–a story Goldsmith usefully retells–a phalanx of skilled litigators now stands ready to challenge this or that war policy or operation.

It belongs uniquely to the executive, however, to carry the war to an enemy. And to do that President Bush has had to consult lawyers at every turn. A constant theme of The Terror Presidency is that the Bush administration, far from being “indifferent to wartime legal constraints,” has been “strangled by law.” Indeed, “the war has been lawyered to death.”

Goldsmith closes with a chapter on what future presidents–facing terrorist threats as they almost certainly will–might learn from the Bush years. The most fundamental one is “to establish trust with the American people.” This cannot be done, says Goldsmith, by a unilateral approach grounded in assertions of executive power. A president, instead, should welcome judicial review of executive decisions, and should seek legislative authority for new policies. A president should not eschew ordinary politics, “the need to explain, to justify, to convince, to get people on board, to compromise.” A president who does such things has a better chance than not of strengthening his authority. That approach also may help us prevail in war.

Agree or disagree with Jack Goldsmith on these points, he has written a book that also demonstrates just how hard it is to be president today in an era of abiding terrorist threat. Surely we are fortunate that, whatever else may be said about George W. Bush’s war presidency, on his watch, so far at least, the country has not seen a repeat of 9/11.

Terry Eastland is publisher of THE WEEKLY STANDARD.