Dispatches from the Culture Wars

The NY Times has an excellent piece on Jack Goldsmith, a Harvard law professor and conservative legal scholar who worked in the DOJ until he could no longer stand the unconstitutional policies the administration was pursuing and tired of fighting the battles against them. The article points out that in some ways, Goldsmith was in line with Bush/Cheney doctrine. For example, he argued vociferously that international human rights standards are not applicable in US courts and that the International Criminal Court had no jurisdiction over US leaders or military personnel. That's why he was named to head the Office of Legal Counsel at the DOJ. But he had strong views against the use of torture and against unconstitutional policies within the US, which is why he only lasted 9 months in that position before resigning. Here's some background from the article:

Goldsmith had been hired the year before as a legal adviser to the general counsel of the Defense Department, William J. Haynes II. While at the Pentagon, Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors from the International Criminal Court might indict American officials for their actions in the war on terror. Goldsmith described this threat as "the judicialization of international politics." No one was surprised when he was hired in October 2003 to head the Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power. Immediately, the job put him at the center of critical debates within the Bush administration about its continuing response to 9/11 -- debates about coercive interrogation, secret surveillance and the detention and trial of enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although he refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror. During his first weeks on the job, Goldsmith had discovered that the Office of Legal Counsel had written two legal opinions -- both drafted by Goldsmith's friend Yoo, who served as a deputy in the office -- about the authority of the executive branch to conduct coercive interrogations. Goldsmith considered these opinions, now known as the "torture memos," to be tendentious, overly broad and legally flawed, and he fought to change them. He also found himself challenging the White House on a variety of other issues, ranging from surveillance to the trial of suspected terrorists. His efforts succeeded in bringing the Bush administration somewhat closer to what Goldsmith considered the rule of law -- although at considerable cost to Goldsmith himself. By the end of his tenure, he was worn out. "I was disgusted with the whole process and fed up and exhausted," he told me recently.

After leaving the Office of Legal Counsel, Goldsmith was uncertain about what, if anything, he should say publicly about his resignation. His silence came to be widely misinterpreted. After leaving the Justice Department, he accepted a tenured professorship at Harvard Law School, where he currently teaches. During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in "justifying torture." "It was a nightmare," Goldsmith told me. "I didn't say anything to defend myself, except that I didn't do the things I was accused of."

Now Goldsmith is speaking out, with a new book called The Terror Presidency. Here's some background on the Office of Legal Counsel and how the Bush administration made decisions on such matters:

When Goldsmith was asked, four years ago, to head the Office of Legal Counsel at the Justice Department, he jumped at the opportunity. Working for the office is one of the most prestigious jobs in government: former heads and deputies include the Supreme Court Justices William H. Rehnquist, Antonin Scalia and Samuel A. Alito Jr. The Office of Legal Counsel interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.

In the post-9/11 era, the office has played a crucial role in providing legal cover to jittery bureaucrats fearful that officials in the White House, Defense and State Departments or the C.I.A. might be prosecuted for their actions in the war on terror. The Justice Department, after all, is the branch of government responsible for prosecutions, and its own prosecutors -- as well as independent counsels -- would be hard pressed to prosecute someone who had relied on the department's own opinions in good faith. For this reason, the office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls "free get-out-of jail cards" by saying yes. Its opinions, he writes in his book, are the equivalent of "an advance pardon" for actions taken at the fuzzy edges of criminal laws.

In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith's arrival were made not by the Office of Legal Counsel but by a self-styled "war council." This group met periodically in Gonzales's office at the White House or Haynes's office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo. These men shared a belief that the biggest obstacle to a vigorous response to the 9/11 attacks was the set of domestic and international laws that arose in the 1970s to constrain the president's powers in response to the excesses of Watergate and the Vietnam War. (The Foreign Intelligence Surveillance Act of 1978, for example, requires that executive officials get a warrant before wiretapping suspected enemies in the United States.) The head of the Office of Legal Counsel in the first years of the Bush administration, Jay Bybee, had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch.

Yoo was a "godsend" to a White House nervous about war-crimes prosecutions, Goldsmith writes in his book, because his opinions reassured the White House that no official who relied on them could be prosecuted after the fact. But Yoo's direct access to Gonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith. (Neither Ashcroft nor Gonzales responded to requests for interviews for this article.) Ashcroft, Goldsmith says, felt that Gonzales and the war council were usurping legal-policy decisions that were properly entrusted to the attorney general, such as the creation of military commissions, which Gonzales supported and Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left the Office of Legal Counsel and Gonzales suggested Yoo as a candidate to lead it. Ashcroft rejected the suggestion. Yoo then recommended his friend Goldsmith to the White House as a suitable alternative. Goldsmith interviewed with Ashcroft at the Justice Department and with Gonzales and Addington at the White House. In his interview with Addington and Gonzales, Goldsmith recalls talking about the dangers of international law and the importance of military commissions. He got the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: "They're going to be really mad. They're not going to understand our decision. They've never been told no."

The article goes into detail on disagreement with David Addington, Cheney's chief adviser, over the Geneva Conventions:

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: "They're going to be really mad. They're not going to understand our decision. They've never been told no." (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the "biggest presence in the room -- a large man with large glasses and an imposing salt-and-pepper beard" who was "known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents." When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. "The president has already decided that terrorists do not receive Geneva Convention protections," Addington replied angrily, according to Goldsmith. "You cannot question his decision." (Addington declined to comment on this and other details concerning him in this article.)

Goldsmith then explained that he agreed with the president's determination that detainees from Al Qaeda and the Taliban weren't protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded.

The most stunning segment of the article involves Addington and the White House's attitude toward the FISA court:

In Goldsmith's estimation, the unnecessary unilateralism of the Bush administration reached its apex in the controversy over wiretapping and secret surveillance. Goldsmith says he did not originally intend to mention the surveillance controversy in his book. But he says he was infuriated, soon before finishing his manuscript, to be handed a subpoena in Cambridge by F.B.I. agents ordering him to testify in a criminal investigation into the leaks that resulted in stories by James Risen and Eric Lichtblau in The New York Times about the National Security Agency's warrentless wiretapping. After having a public conversation with the F.B.I. in the middle of Harvard Square about aspects of the terrorist-surveillance program, Goldsmith concluded he could discuss the same topics in his book.

Goldsmith emphasizes that he was not opposed to investigating the leak, which he agreed with President Bush did "great harm to the nation." In addition, he shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

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.

That line about being one bomb away from doing away with the FISA court should be hung around Addington's neck like an albatross. That someone in that position of power is hoping to be able to use a terrorist act to get rid of the barely minimal safeguards in the FISA act that prevent the complete shredding of the Constitution speaks volumes about the authoritarian tendencies of this administration. Addington should be investigated for this statement, immediately. There is much more in the article, all of which points to the utter contempt this administration has for the rule of law.