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'The Terror Presidency' by Jack Goldsmith

Written by Jules Lobel

Sunday, 09 December 2007

George Bush's rationale for bending law draws challenge from former Justice staffer

When White House officials selected Jack Goldsmith to head the Justice Department's Office of Legal Counsel, they undoubtedly thought that this high-powered, conservative law professor who shared their basic outlook, would compliantly support every administration position, as did his predecessor.

That prediction proved wrong, and the ensuing conflict between Goldsmith and David Addington, Vice President Dick Cheney's counsel, provides the central drama of Goldsmith's fascinating account of the inner workings and conflicts within the Bush administration.

That a reliable conservative like Goldsmith could run so afoul of Addington speaks volumes about the extremist ideology that dominates the Bush White House.

The Office of Legal Counsel (OLC), an obscure branch of the Justice Department, is the chief advisor to the president about the legality of presidential actions.

OLC holds what Goldsmith terms, "one of the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail free cards."

By giving its stamp of approval to an otherwise dubious government program, the OLC provides those who implement that program a good faith defense to a later prosecution.

Under John Yoo and Jay Bybee, the OLC was freely issuing get-out-of-jail free cards to skittish government officials, who might have otherwise balked at using interrogation methods such as waterboarding.

In Goldsmith's nine months in office, he reversed or rescinded more OLC opinions than any of his predecessors.

He criticizes the administration's "go it alone approach," best exemplified by Addington who argued that the Constitution empowers the president to do whatever is necessary to protect the nation.

Addington's view recalls President Nixon's infamous remark that "when the president does it, that means that it is not illegal."

Addington and Yoo went one step further and concluded that this broad presidential power to respond to the terrorist threat could not be checked by Congress.

Goldsmith compares Bush unfavorably to Presidents Abraham Lincoln and Franklin D. Roosevelt, who also expanded presidential power in wartime, but did so by utilizing what Goldsmith terms "the soft factors of legitimation-consultation, deliberation, the appearance of deference and credible expressions of public concern for constitutional and international values."

The Bush administration by contrast emphasized secrecy, closed-looped deliberations by a small, largely like minded group of officials, and eschewed genuine consultation and dialogue with Congress, preferring to rely on the "hard power of prerogative."

Goldsmith clashed repeatedly with Addington, who wanted the lawyers to "find some way to make what [the President] did legal."

Addington reacted to Goldsmith's views that certain administration programs could not be legally supported with anger and "disgust," once telling him that "if you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands."

Goldsmith did not cave in, demonstrated courage and principle, and eventually resigned.

Yet despite his bravery in the line of Addington's fire, Goldsmith unfortunately agrees with the legality of almost all of the Bush administration's actions in conducting its war on terror, including invading Iraq, establishing military commissions, denying Al Qaeda prisoners even the basic, minimal protections of Common Article 3 of the Geneva Conventions and depriving Guantanamo detainees of any right to habeas corpus.

His complaint is not that the administration was acting unlawfully, but rather that it went about achieving its aims unilaterally without consultation with Congress and the American people.

Indeed, Goldsmith's withdrawal of the 2002 OLC infamous torture opinion did not, as he points out, affect any of the interrogation techniques approved by the Defense Department or the CIA.

Goldsmith's objection to that opinion turns out not to be to the substance of what CIA officials were doing, but that it was "poorly reasoned," had a "terrible tone" and was "unnecessary and overbroad."

His most problematic chapter argues that the Bush administration was "ensnared" and "strangled by law." Yet Goldsmith's own account explains why the laws the administration were most concerned about -- the Federal Torture Statute, the Geneva Conventions, the War Crimes Act and the Foreign Intelligence Surveillance Act -- are most essential in time of crisis.

He points out that administration officials reading threat reports became "paranoid about the threat," and developed "fear bordering on obsession," an overreaction not unique to this administration.

Laws prohibiting torture provide critical checks to that official "paranoia" that so often leads executive officials to adopt tactics that are both immoral and counterproductive.

Ironically, the Roosevelt administration that Goldsmith so admires set in motion the very international legal framework that Goldsmith complains now unduly restricts the president and the United States.

Roosevelt supported the creation of the United Nations and the Nuremberg Tribunal which established the principle that individuals be held legally accountable for the commission of war crimes.

Perhaps a future administration will accept not only what Goldsmith admiringly terms "Roosevelt's tenets of democratic leadership in crisis," but also the legal commitment made at Nuremberg.