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?[Link via How Appealing.]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.”
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):
- More from Jack Goldsmith:
- Resolving the Goldsmith Contradiction:
- The Conscience of Jack Goldsmith:
Here is a sample:
Thank goodness there was one lawyer involved, Addington, who understood that these are not law review articles, but rather life and death.
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?
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.
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?
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.
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.
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.
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.
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.
You obviously remember the 2002 election differently than I do.
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.
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.
You talking about G.W. "my way or the highway" Bush? Hah! 'Course he would've appreciated them falling into his line.
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).
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
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.
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.
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.
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?