From the September 11, 2007, New York Times:
Books of The Times
Former Law Adviser Speaks Out On Bush
By MICHIKO KAKUTANI
THE TERROR PRESIDENCY
Law and Judgment Inside the Bush Administration
By Jack Goldsmith
256 pages. W. W. Norton. $25.95.
Buy for 40% off at Amazon.com
In October 2003 Jack Goldsmith, a legal scholar with sterling conservative credentials, was hired to head the Justice Department’s Office of Legal Counsel, which advises the president and the attorney general about the legality of presidential actions. As he was briefed on counterterrorism measures the Bush administration had adopted in the wake of 9/11, Mr. Goldsmith says he was alarmed to discover that many of those policies “rested on severely damaged legal foundations,” that the legal opinions that supported these counterterrorism operations were, in his view, “sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president.”
Mr. Goldsmith eventually withdrew several key department opinions — including two highly controversial “torture memos” dealing with the authority of the executive branch to conduct coercive interrogation — but only after contentious battles with administration hardliners led by David Addington, then Vice President Cheney’s legal adviser and now chief of staff.
As Mr. Goldsmith recounts in his chilling new book, “The Terror Presidency,” he and his Justice Department colleagues (in consultation with lawyers from the State Department, the Defense Department, the C.I.A. and the National Security Council) reached a consensus in 2003 that the Fourth Geneva Convention (which governs the duties of an occupying power and the treatment of civilians) affords protection to all Iraqis, including those who are terrorists. When he delivered this decision to the White House, he recalls, Mr. Addington exploded: “ ‘The president has already decided that terrorists do not receive Geneva Convention protections,’ he barked. ‘You cannot question his decision.’ ”
The portrait of the Bush administration that Mr. Goldsmith — who resigned from the Office of Legal Counsel in June 2004, only nine months after assuming the post — draws in this book is a devastating one. It is a portrait of a highly insular White House obsessively focused on expanding presidential power and loathe to consult with Congress, a White House that frequently made up its mind about a course of action before consulting with experts, a White House that sidelined Congress in its policymaking and willfully pursued a “go-it-alone approach” based on “minimal deliberation, unilateral action, and legalistic defense.”
Similar portraits, of course, have been drawn by reporters and other former administration insiders, but Mr. Goldsmith’s account stands out by virtue that he was privy to internal White House debates about explosive matters like secret surveillance, coercive interrogation and the detention and trial of enemy combatants. It is also distinguished by Mr. Goldsmith’s writing from the point of view of a conservative who shared many of the Bush White House’s objectives (and who was an ideological ally of John Yoo, one of the main architects of the administration’s legal responses to a post-9/11 world and the author of some of the very opinions Mr. Goldsmith would later call into question). But he found himself alarmed by the Bush White House’s obsession with expanding presidential power, its arrogant unilateralism and its willingness to use what he regarded as careless and overly expansive legal arguments in an effort to buttress its policies.
Mr. Goldsmith does not go into detail here about his role on that March 2004 night when Alberto Gonzales, then White House legal counsel, and the White House chief of staff, Andrew Card, went to the hospital to visit an ailing Attorney General John Ashcroft to try to pressure him into approving a secret program (which was about to expire) over objections from Mr. Goldsmith and Deputy Attorney General James B. Comey. But he does provide a visceral sense of the tensions within the administration, with Mr. Ashcroft and members of the Justice Department often at odds with Mr. Gonzales and the White House, and the hard-line, hard-driving Mr. Addington, backed with the power of the vice president’s office, usually prevailing in the legal policy meetings held in Mr. Gonzales’s office.
Noting that “the president and the vice president always made clear that a central administration priority was to maintain and expand the president’s formal legal powers,” Mr. Goldsmith says that lawyers soon realized that they “could gain traction for a particular course of action — usually, going it alone — by arguing that alternative proposals would diminish the president’s power.”
Working with Congress on matters like detention and military commissions, Mr. Goldsmith says, would have helped the administration establish “a solid legal foundation” for the war on terrorism while diminishing “many complaints about legitimacy.” And yet the White House took working with Congress “off the table,” which meant that “a lot of sensible policy options” simply “were not available.”
Fear of another terrorist attack, Mr. Goldsmith contends, created pressure on administration officials “to act to the edges of the law.” He writes that Gen. Michael V. Hayden, former director of the National Security Agency and now director of the C.I.A., would often say that after 9/11 he was troubled if he was not using “the full authority allowed by law,” and that he was “going to live on the edge,” where “his spikes will have chalk on them.”
This attitude “permeated the executive branch after 9/11,” Mr. Goldsmith says, and he agreed that his own job was “to make sure the president could act right up to the chalk line of legality.” But he adds, “Even blurry chalk lines delineate areas that are clearly out of bounds,” and in some pivotal cases he felt compelled to stand up to the hardliners and insist that the administration’s counterterrorism policies be put on sounder legal footing.
Of the notorious Aug. 1, 2002, torture memo (which narrowly defined torture as “extreme acts” causing “severe pain” of the sort that “accompanies serious physical injury” leading to “death or organ failure,” and which asserted that “any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the commander-in-chief authority in the president”), Mr. Goldsmith writes that its concept of sweeping executive power had “no foundation” in prior Office of Legal Counsel opinions, or in judicial decisions, or in any other source of law.”
What’s more, “the conclusion’s significance sweeps far beyond the interrogation opinion or the torture statute,” he says. “It implies that many other federal laws that limit interrogation — anti-assault laws, the 1996 War Crimes Act, and the Uniform Code of Military Justice — are also unconstitutional, a conclusion that would have surprised the many prior presidents who signed or ratified those laws, or complied with them during wartime.”
Mr. Goldsmith is similarly scathing about how the Bush administration went about side-stepping the 1978 Foreign Intelligence Surveillance Act, which required the president and government agencies to obtain warrants from a special court before conducting electronic surveillance of people suspected of being terrorists or spies. Although he says he shared many of the administration’s concerns on this issue, he “deplored the way the White House went about fixing the problem.”
He quotes Mr. Addington saying of the surveillance act in court: “We’re one bomb away from getting rid of that obnoxious court.” And he observes that top Bush officials dealt with that act “the way they dealt with other laws they didn’t like: 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.”
This sort of unilateral action, Mr. Goldsmith argues, led to “legal and political errors that became very costly to the administration down the road.” In his view it was also a strategy “guaranteed not to work” and “certain to destroy trust altogether,” for “when an administration makes little attempt to work with the other institutions of our government and makes it a public priority to emphasize that its aim is to expand its power, Congress, the courts and the public listen carefully, and worry.”
Mr. Goldsmith concludes this illuminating volume with the observation that unlike Lincoln and Franklin D. Roosevelt — two presidents who also presided over the nation at times of crisis — President Bush has relied only on “the hard power of prerogative,” ignoring “the soft factors of legitimation — consultation, deliberation, the appearance of deference, and credible expressions of public concern for constitutional and international values — in his dealing with Congress, the courts, and allies.” As a result, Mr. Goldsmith says, even if President Bush’s “accomplishments are viewed more charitably by future historians than they are viewed today,” they will “likely always be dimmed by our knowledge of his administration’s strange and unattractive views of presidential power.”
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