Terror Presidency: Law and Judgment Inside the Bush Administration
The problem with hiring competent, principled
attorneys is they don't always tell you what you want to hear. That made Jack
Goldsmith, briefly the assistant attorney general in charge of the Office of
Legal Counsel, an inconvenient Bush administration appointee. His tale of bureaucratic
and legal infighting is simultaneously interesting and important.
appointment grew out of a disagreement between Attorney General John Ashcroft
and White House Counsel Alberto Gonzales. They often clashed: Gonzales usually
won, even though he was usually wrong.
Explains Goldsmith, Gonzales "defeated Ashcroft's effort to take a hard-line
stance against affirmative action before the Supreme Court; he led the creation
of military commissions, which Ashcroft never liked; and he put the brakes on
Ashcroft's attempt to implement an aggressive interpretation of gun rights under
the Second Amendment." They also battled over the FISA program, in which the
attorney general turned out to be a defender of civil liberties.
The OLC position became another battle.
The White House wanted John Yoo, an OLC deputy, to head the office, which assesses
the legality of presidential actions. Yoo authored many of the early opinions
on torture and enemy combatants and was a strong advocate of the unitary executive
– the view that, to paraphrase French King Louis XIV, the president is the state.
Technically on Ashcroft's staff, Yoo "took his instructions mainly from Gonzales,
and he sometimes gave Gonzales opinions and verbal advice without fully running
matters by the attorney general," writes Goldsmith. So Ashcroft said no to Yoo.
Goldsmith, special counsel to the general counsel at the Defense Department,
became the compromise choice.
Goldsmith was no shrinking violet when it came to presidential power. But Goldsmith
soon discovered the downside of not believing President Bush to be the reincarnation
of the famed Sun King. His White House interlocutors failed to ask the right
questions. Goldsmith writes:
"We did not, however, talk about things I didn't know about at the
time, such as the National Security Agency's Terrorist Surveillance Program,
or what President Bush would later describe as the CIA's 'tough' interrogation
regime. Nor did we talk about my disagreements with administration policy –
disagreements that [his Pentagon boss, Jim] Haynes knew about but apparently
did not convey to the White House. While I believed the government could detain
enemy combatants, I thought it needed more elaborate procedures for identifying
and detaining them, and had been working on this issue since I arrived at the
Pentagon. I had long argued to Haynes that the administration should embrace
rather than resist judicial review of its wartime legal policy decisions. I
could not understand why the administration failed to work with a Congress controlled
by its own party to put all of its anti-terrorism policies on a sounder legal
President Bill Clinton also made expansive claims of executive power, observes
Goldsmith. However, this administration has pushed much further. The terrorist
attacks of 9/11 triggered a demand for ever more expansive authority without
accountability, and the OLC was expected to provide the necessary legal justification.
While it is widely thought that administration advocates of an all-powerful
presidency don't care about the Constitution, Goldsmith disagrees. Both David
Addington "and his boss Cheney seemed to care passionately about the Constitution
as they understood it. That is why they fought so hard to return the presidency
to what they viewed as its rightful constitutional place." He rejects the charge
that they manipulated 9/11 to advance their preexisting agenda, but acknowledges
that "their unusual conception of presidential prerogative influenced everything
they did to meet the post-9/11 threat."
The problem of squaring the circle soon became apparent to Goldsmith. Today
the law increasingly frames, regulates, and interferes with combat operations.
Thus, legal opinions, like those from OLC, have enormous operational importance.
(This issue is both fascinating and disturbing, and deserves a book of its own.)
In this circumstance, writes Goldsmith, "Yoo was a godsend. In close coordination
with the War Council, he pumped out opinions on all manner of terrorism-related
topics with a clarity of approval that emboldened the hesitant bureaucracy."
Unfortunately for Goldsmith, he didn't feel comfortable with some of those decisions.
During his first two months in office, he writes:
"I was briefed on some of the most sensitive counterterrorism operations
in the government. Each of these operations was supported by OLC opinions written
by my predecessors. As I absorbed the opinions, I concluded that some were deeply
flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary
constitutional authorities on behalf of the president. I was astonished, and
immensely worried, to discover that some of our most important counterterrorism
policies rested on a severely damaged legal foundation. It began to dawn on
me that I could not – as I thought I would eventually be asked to do – stand
by or reaffirm these opinions."
It would be difficult to rethink prior opinions on such issues in a normal
administration. Doing so in this government was particularly hard.
Alberto Gonzales comes off as a nice nonentity. When Goldsmith was vetted for
the job, he also met with David Addington. Addington, writes Goldsmith, "was
the biggest presence in the room – a large man with large glasses and an imposing
salt-and-pepper beard who had been listening to my answers intently. Addington
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." If anything, Addington was an even more strident advocate of presidential
power than was Yoo, who, relates Goldsmith, "frequently told me stories about
Addington slaying the legal wimps in the administration who stood as an obstacle
to the president's aggressive anti-terrorism policies."
Goldsmith's concerns over administration policy did not turn him into a reflexive
Bush critic. For instance, he endorses the notion of a "war on terror" and believes
that the president has a right to detain irregular combatants, like Yaser Hamdi,
an American citizen captured in Afghanistan. Yet after visiting the Navy brig
where Hamdi was held, Goldsmith had some very un-Bushian sentiments:
"Something seemed wrong. It seemed unnecessarily extreme to hold a 22-year-old
foot soldier in a remote wing of a run-down prison in a tiny cell, isolated
from almost all human contact and with no access to a lawyer. 'This is what
habeas corpus is for,' I thought to myself, somewhat embarrassed at this squishy
Although he backed the administration's legal position – he devotes a chapter
to the question of enemy combatants and military commissions – he believed the
administration's policy "was excessively legalistic, because it often substituted
legal analysis for political judgment, and because it was too committed to expanding
the president's constitutional power." Administration officials believed that
"cooperation and compromise signaled weakness and emboldened the enemies of
America and the executive branch." (Some probably hated the latter more than
the former.) Ironically, he concludes, the administration's policies have made
Congress and the courts more suspicious of executive power and more willing
to constrain the president.
Perhaps the most interesting story, about which he could not write because
so many of the issues remain classified, is warrantless electronic surveillance
under FISA. This question led to the much-publicized race between White House
Counsel Gonzales and the then-deputy attorney general to Ashcroft's hospital
room. Goldsmith supported a looser legal regime, but complained of "the legal
mess that then-White House Counsel Gonzales, David Addington, John Yoo, and
others had created in designing the foundations of the Terrorist Surveillance
Rather than cooperate with either Congress or the FISA court, Goldsmith points
out, "top officials in the administration dealt with FISA 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." Characteristic of the administration's attitude
was Addington's comment to Goldsmith: "We're one bomb away from getting rid
of that obnoxious [FISA] court."
However, torture is the issue that ended Goldsmith's OLC tenure. He concluded
that two Yoo opinions concerning interrogation were erroneous. The documents,
he writes, were "legally flawed, tendentious in substance and tone, and overbroad
and thus largely unnecessary." To some they appeared to be works more of political
than legal scholarship.
But withdrawing the legal authorization for what can fairly be called torture
put interrogators, who had been relying on their government's promise that their
tactics were legal, in an extraordinarily difficult position. Attorney General
Ashcroft accepted Goldsmith's opinion with grace; the White House was more grudging.
Goldsmith asks how the OLC could have issued opinions that "made it seem as
though the administration was giving official sanction to torture, and brought
such dishonor on the United States, the Bush administration, the Department
of Justice, and the CIA?" He answers: fear. Out of fear of future terrorist
attacks, the "OLC took shortcuts in its opinion-writing procedures," shortcuts
undoubtedly encouraged by the sustained push for increased presidential powers.
Goldsmith chose this time to resign. He had the usual personal reasons, but,
he notes, "important people inside the administration had come to question my
fortitude for the job, and my reliability." That is, his reliability to protect
the administration from the Constitution.
The Terror Presidency is one of the most illuminating books on the Bush
administration yet to emerge. Although Goldsmith is a hawk in the war on terror,
he also believes in the rule of law. And he recognizes the importance of building
a popular consensus transcending party. His criticism of the administration
is measured but devastating:
"The Terror Presidency's most fundamental challenge is to establish
adequate trust with the American people to enable the president to take the
steps needed to fight an enemy that the public does not see and in some respects
cannot comprehend. This is an enormously difficult task. The Terror President
must educate the public about the threat without unduly scaring it. He must
persuade the public of the need for appropriate steps to check the threat, explain
his inevitable mistakes, and act with good judgment if an attack comes. And
he must convince the public that he is acting in good faith to protect us and
is not acting at our expense to enhance or protect himself."
Sadly, the contrast between Goldsmith's "Terror President" and George W. Bush
could not be greater.