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The Conscience of Jack Goldsmith:

Next Sunday, the New York Times Magazine will feature a profile of Harvard Law Professor Jack Goldsmith written by Jeff Rosen. The profile centers on Goldsmth's work on international law and national security issues, and his brief tenure as the head of the Justice Department's Office of Legal Counsel during the Bush Administration. It also previews Goldsmith's forthcoming book, The Terror Presidency: Law and Judgment Inside the Bush Administration. Here's a brief taste:

Goldsmith told me that he has decided to speak publicly about his battles at the Justice Department because he hopes that "future presidents and people inside the executive branch can learn from our mistakes." In his view, American presidents for the foreseeable future will, like George W. Bush, face enormous pressure to be aggressive and pre-emptive in taking measures to prevent another terrorist attack in the United States. At the same time, Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith's view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, "go-it-alone" view of executive power. As Goldsmith sees it, this strategy has backfired. "They embraced this vision," he says, "because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it."

[Link via How Appealing.]

For those with an interest in the development of legal opinions related to counter-terrorism efforts, including the infamous "torture memos," the article is a must read. Among other things, it discusses Goldsmith's decision to withdraw some of the controversial memoranda. Goldsmith apparently withdrew more OLC legal opinions than any of his predecessors, including others related to the "War on Terror."

Goldsmith comes off very well in the article, as well he should. From what I understand of the internal debates on these issues, Goldsmith (and his deputy, Patrick Philbin) remained true to their conservative legal principles while resisting pressure to adopt ends-oriented conclusions in their legal analyses. The Administration could have used more political appointees like them throughout the Justice Department.

Related Posts (on one page):

  1. More from Jack Goldsmith:
  2. Resolving the Goldsmith Contradiction:
  3. The Conscience of Jack Goldsmith:
Ugh (mail):
Is there a more insane individual in the administration than David Addington?
9.4.2007 11:22am
Just an Observer:
From Rosen's article, it is clear that Goldsmith's forthcoming book will be both gripping and significant. (I suspect the same will be true of his testimony before Senate Judiciary.)

Here is a sample:

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: "They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations," he writes. Goldsmith's first experienced this extraordinary concealment, or "strict compartmentalization," in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.'s inspector general to see a copy of the Office of Legal Counsel's legal analysis supporting the secret surveillance program. "Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department's legal analysis of what N.S.A. was doing," Goldsmith writes.
9.4.2007 11:30am
A.S.:
Goldsmith comes across as a true Ivory Tower academic: "hey, let's get Congress to sign off on all this! Let's get the courts to sign off on all this!" Yeah, right. Remember what happens when you ask the FISA court to sign off on the NSA program? The FISA court shuts it down. Good plan! (Whoever in DoJ told the White House to just submit the NSA program to the FISA court should have been fired the next day after it the program was shut down.)

Thank goodness there was one lawyer involved, Addington, who understood that these are not law review articles, but rather life and death.
9.4.2007 11:33am
Anderson (mail):
"The president has already decided that terrorists do not receive Geneva Convention protections," Addington replied angrily, according to Goldsmith. "You cannot question his decision."

Nothing bad enough will ever happen to that man.

Is there a more insane individual in the administration than David Addington?

Where does A.S. work?
9.4.2007 11:37am
Simon Dodd (mail) (www):
Jon:
Goldsmith (and his deputy, Patrick Philbin) remained true to their conservative legal principles while resisting pressure to adopt ends-oriented conclusions in their legal analyses.
But just to be clear, in so saying, you're not suggesting that everyone in the administration who took a broader view of executive power than did Goldsmith did so because they succumbed to "pressure to adopt ends-oriented conclusions in their legal analyses," correct? Goldsmith is careful to stress his belief that Yoo (and presumably some others) reached the conclusions they reached in good faith.
9.4.2007 11:54am
LotharoftheHillPeople:
A.S.,

The issue is whether the government has to follow the law. Your view seems to be that government lawyers should not follow the law, because the law might be bad (and presumably going to Congress to get them to change it is too troublesome). If the law shouldn't be followed, why have it at all?
9.4.2007 12:17pm
Steve:
"If you rule that way," Addington exclaimed in disgust, Goldsmith recalls, "the blood of the hundred thousand people who die in the next attack will be on your hands."

It's nice to see that the rhetoric of highly-placed Bush Administration lawyers is indistinguishable from the sort of stuff you find in blog comment sections.
9.4.2007 12:30pm
Simon Dodd (mail) (www):
LotharoftheHillPeople:
The issue is whether the government has to follow the law.
To some extent, the issue is what the law is, not whether the government has to follow it whatever it may be.
9.4.2007 12:47pm
Anderson (mail):
To some extent, the issue is what the law is, not whether the government has to follow it whatever it may be

Mr. Dodd is correct, but I hope he would also understand those of us who equate "the law is whatever the president says it is" with "no law at all."

Which brings us to:

If the law shouldn't be followed, why have it at all?

Do not expect the Addington-addled to draw the prudent conclusion from this not-so-rhetorical-as-it-should-be question.
9.4.2007 1:14pm
ejo:
the problem is this-the President could get a legal opinion approving any position, just like we could get any opinion we might like on any topic. that is what lawyers do. relying on these opinions is a recipe for inaction-view the allegations on whether the Clinton Administration had a "basis" to kill OBL. I would like to know why those opinions in opposition to Bush policy are correct (helps us win a war) as oppposed to why the Bush policies are wrong. if those topics aren't even addressed, the argument is worthless.
9.4.2007 1:22pm
Simon Dodd (mail) (www):
Mr. Dodd is correct, but I hope he would also understand those of us who equate "the law is whatever the president says it is" with "no law at all."


Of course. Of all people, a formalist will be the last to say otherwise. ;) My point was that it isn't as simple as saying "just follow the law," a fortiori where you have several sources of law that overlap and must therefore be reconciled. For example, Goldsmith talks about construing the Fourth Convention, and whatever anyone says, that's not a straightforward "just follow the law" question. What does the 4th convention itself mean, to what extent is it (thought to be) incorporated into U.S. law, to what extent can it be incorporated into U.S. law given the limitations of the treaty-making power (see e.g. Reid v. Covert), what statutory provisions bear on it, and how does this whole, complex body of law interact? Even if there is, after thoughtful consideration, not only a single, right answer, but an pretty obviously right answer, the folks who say "just follow the law" are, as I see it, painting a falsely simple picture of what the law is, and I think that people hostile to this administration fall into that trap repeatedly.
9.4.2007 1:49pm
David Drake:
A.S. mentions then dismisses the main point in the article--the Administration should have asked Congress to authorize the detentions and the tribunals and to amend FISA as soon as they believed it was obsolete. They did not and paid a huge price.

The article and specifically the comments in the article comparing the Lincoln and FDR presidencies with the Bush Administration go a long way to explaining what I regard as the tragedy of the Bush presidency--the inability or unwillingness to exercise the basic tool of the Presidency: the "Bully Pulpit" whether appealing to the public or to Congress.
9.4.2007 1:54pm
JosephSlater (mail):
David:

Tragically, part of the explanation for the "inability or unwillingnes" was that at least for two elections (2002 and 2004), the war was used as a significant political wedge issue against the Dems.
9.4.2007 2:07pm
Bob from Ohio (mail):
A regular profile in courage. Quitting quietly after 9 months leaving the field to Addington et al.
9.4.2007 2:43pm
BGates (www):
JosephSlater - that can't be the explanation for why Bush didn't do as well as Lincoln in keeping public support. In the elections of 1862 and 1864 the war was a significant political wedge issue, for the same reasons: Democratic opposition to the existence of the war and every aspect of its prosecution. I'm sure Bush would have liked to find common ground on the war with Gore and Kerry, as Lincoln would have with Breckinridge and McClellan, but that wasn't possible.
9.4.2007 3:03pm
LotharoftheHillPeople:
Simon Dodd, note that I was responding to A.S.'s comment:
Goldsmith comes across as a true Ivory Tower academic: "hey, let's get Congress to sign off on all this! Let's get the courts to sign off on all this!" Yeah, right. Remember what happens when you ask the FISA court to sign off on the NSA program? The FISA court shuts it down. Good plan! (Whoever in DoJ told the White House to just submit the NSA program to the FISA court should have been fired the next day after it the program was shut down.)

Thank goodness there was one lawyer involved, Addington, who understood that these are not law review articles, but rather life and death.
I believe A.S.'s view is that whatever the law is is merely a "law review article" for "Ivory tower academics." What matters is "life and death" and keeping the program up and running no matter what the law is -- the Addington way.
9.4.2007 3:10pm
Steve:
In the elections of 1862 and 1864 the war was a significant political wedge issue, for the same reasons: Democratic opposition to the existence of the war and every aspect of its prosecution.

You obviously remember the 2002 election differently than I do.
9.4.2007 3:13pm
JosephSlater (mail):
BGates:

Oh yeah, I forgot, the Dems today are all cowardly appeasers and/or traitors supporting the other side, just like the Dems during the Civil war. That's why it was OK to smear actual veterans like Max C. with TV ads featuring Osama, to pick just one example.

And for those of us that remember, Max's real sin was opposing the Bush administration drive to deprive workers at DHS of their pre-existing right to bargain collectively.

The Bush admin. politicized this war from the start -- despite all sorts of favorable votes from Dems. They got some benefits from that cynical game in the past, but now that dog is less and less able to hunt.
9.4.2007 3:43pm
Fred F.:
Just what we need -- another kiss and tell conservative. You know the blogs and liberal press will soon nominate him for sainthood. Good for him for doing the job he felt he should do, but shame on him for publicly making himself a hero.
9.4.2007 3:44pm
David M. Nieporent (www):
That's why it was OK to smear actual veterans like Max C. with TV ads featuring Osama, to pick just one example.
Never happened. It's a myth. Here's the actual ad. It's as factual as any 30-second spot, which is to say only intermittently so, but it in no way "smears" him.
And for those of us that remember, Max's real sin was opposing the Bush administration drive to deprive workers at DHS of their pre-existing right to bargain collectively.
Indeed. But you can't really have it both ways; if that's important, then you can't wave it away as insignificant. If it's actually insignificant, then why did Cleland insist upon it?
9.4.2007 4:39pm
JosephSlater (mail):
Respectfully, David M., I see that ad as supporting my point. It's politicizing the war -- Clelland won't stand up to OSAMA (here's a helpful picture of OBL, in case you forgot). See, he's voted AGAINST THE PRESIDENT on war/security matters.

Which war and security matters? The ad, revealingly, didn't say. Why do you suppose the ad didn't explain that what Clelland opposed was Bush's plan to take away collective bargaining rights from DHS employees? Shouldn't Republicans have been proud of that, given the emphasis they put on it at the time?

No, what actually happened is that the Repubs saw a chance to kill two birds with one stone: do some union busting in the federal service and have a "security" issue where they could paint the Dems as obstructionist, without saying what that issue really was.

More broadly, I'm an historian, and I can't remember a major war in the last century or more in which a war was so politicized by the party of the President who started and presided over the war.
9.4.2007 4:52pm
bittern (mail):
Thanks for the ad link, David M. Nieporent. Subtle is maybe not the word, but the ad IS more subtle than I was led to believe by left-side bloggers. Might not be considered exactly a good-will gesture by our Uniter in Chief, though. Cleland's real sin was not having enough strong enough legs to run through the red tide of Georgia in a game of hardball.

I'm sure Bush would have liked to find common ground on the war with Gore and Kerry

You talking about G.W. "my way or the highway" Bush? Hah! 'Course he would've appreciated them falling into his line.
9.4.2007 5:47pm
Mahan Atma (mail):
Prof. Adler,

I'm surprised to hear you take Goldsmith's side. Back when Yoo's memos were first being made public, I seem to recall that you supported him quite vigorously (as Juan Non-Volokh at the time).
9.4.2007 9:47pm
Jonathan H. Adler (mail) (www):
Just to quickly answer a few questions:

Mr. Dodd - I am not claiming that John Yoo operated in bad faith. I do believe, however, that there was pressure to reach given conclusions and not much tolerance for opposing views in the development of these policies. Those who disagreed or challenged desired conclusions were often cut out of the policy development process. From my conversations with various folks who worked at OLC before and during the Bush Administration, the lack of more give-and-take in the opinion writing and development process further undermined their quality and the robustness of their conclusions. Just as I and other academics produce better work when we work in an environment where there is robust intellectual exchange, I believe Yoo and others would have produced better work had they been operating within a different environment.

Mr. Atma -- I never defended the substance or the conclusions of John Yoo's memos. Rather, I opposed the campaign to have him recant his views or resign his academic post, and I criticized the argument that he was legally culpable for aiding and abetting war crimes. My JNoV posts on the matter are summarized and rounded up here.

JHA
9.4.2007 10:04pm
Anderson (mail):
Prof. Adler, re: Yoo's good faith, I have never been able to get around his notorious omission of Youngstown from his memo on presidential powers vs. Congressional limits on torture, etc.

How does a bright lawyer like Yoo *omit* Youngstown from any such analysis -- a move that would rightly earn his memo a failing grade if it were a law-exam answer?

I find it difficult to take his good faith seriously, when I see such cavalier disregard for inconvenient authority. Distinguishing the case w/ some more or less plausible argument is one thing; ignoring it is something else.
9.4.2007 10:31pm
Christopher Cooke (mail):
Professor Adler:

your defense of Mr. Yoo seems to rest on the following premise:

even if he was nuts, he believed in the advice he was giving.

My own view is that Yoo is an ends-oriented legal writer: he writes a brief to advocate a predetermined position, not a memo that attempts to determine what the law is.

Goldsmith was right to resign.
9.5.2007 12:02am
spitball:
Was I the one who was baffled by the reference at the end of the NYT Mag article about Lincoln and FDR? Goldsmith apparently suggests (according to Jeff Rosen) that Lincoln and FDR approached limits on civil liberties the right way because they worked with Congress.

First, despite the overheated rhetoric today, the limits on civil liberties today are very, very minor compared to FDR's and Lincoln's transgressions (e.g., suspension of habeas corpus, the internment of American citizens based on their ethnic orgin).

Second, Lincoln and FDR could "work" with Congress (e.g., the Radical Republicans' ratification of Lincoln's unconstitutional suspension of habeas corpus) because Congress was truly a rubber-stamp Congress then. The GOP was decimated by the Great Depression, and most of Lincoln's opponents weren't in Congress because they, well, seceded.

Does anyone know what Goldsmith was trying to get at? Jeff Rosen's article doesn't shed much light on this point, but it was very perplexing.
9.5.2007 12:31am
spitball:
Argh -- typo above. I meant, "Was I the only one who was baffled . . ." In any event, if someone knows what Goldsmith was trying to get at, can he/she explain?
9.5.2007 12:34am
TokyoTom (mail):
As Goldsmith sees it, this strategy has backfired. "They embraced this vision," he says, "because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it."


Am I the only one who doesn't see Goldsmith's conclusion here? I mean, hasn't Congress simply caved, including on the latest revisions to FISA? It seems to me that the Administration's power continues to grow, at the expense of both Congress and the courts. If not, would we be worried that the Administration might soon be bombing Iran, based partly on a list of causus belli approved nearly-unanimously in the Senate?

No one in Congress seems particularly interested either in their institutional prerogatives or our civil liberties. Aren't Hillary and Barack just itching to get their hands on the great new imperial presidency?
9.5.2007 8:40am
ejo:
the conscience of Jack Goldsmith-I guess I have a hard time caring about his conscience. Would policies he advocates, whatever they are, be more effective or not? Lincoln and Roosevelt managed to get to sleep despite their expansions of government and civil rights encroachments.
9.5.2007 3:38pm