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.