Cautions of a conservative

Jack Goldsmith is a law professor at Harvard. He has also taught law at the University of Chicago and the University of Virginia. Goldsmith is the co-author of The Limits of International Law, which I consider a brilliant book.
This and other writings helped establish Goldsmith as a leading conservative legal scholar. As such, he became a legal adviser to Jim Haynes, the general counsel of the Defense Department. In that role he warned of “the judicialization of international politics.”
In October 2003, Goldsmith became the head of the Office of Legal Counsel at the Justice Department, an enormously prestigious and influential shop. With the government facing difficult and often novel issues of international law arising from the war on terror, it seemed to me that the administration was quite fortunate to have an international law expert of Goldsmith’s caliber in this position.
Less than a year later, however, Goldsmith was gone, having resigned after repeated clashes with other administration lawyers, especially Vice President Cheney’s legal counsel David Addington. One of these clashes has been widely reported. It was Goldsmith who reversed the Justice Department’s position regarding the legality of a particular surveillance program. This, in turn, led to the famous visit by Alberto Gonzales and Andrew Card to John Ashcroft’s sick-bed. Goldsmith was present for that encounter.
Now, Goldsmith has written a book about his time in the administration. It’s called The Terror Presidency. The New York Times Magazine will run a lengthy story by liberal law professor Jeffrey Rosen about Goldsmith and his book this Sunday. The Washington Post has also previewed the book.
Rosen’s story is called “Conscience of a Conservative,” which of course was the name of Barry Goldwater’s seminal book on conservatism. The title foreshadows Rosen’s near-worshipful portrait of Goldsmith as a conservative with a conscience. Yet Goldsmith told Rosen that his adversaries in the administration “thought they were doing the right thing.” Thus, the issue isn’t anyone’s conscience or lack of one.
The issues, instead, appear to be at least three-fold. First, Goldsmith found the legal work done by the Office of Legal Counsel prior to his arrival to be shoddy. Second, Goldsmith thinks it was grave error for the administration to have adopted a “go-it-alone” legal strategy instead of enlisting Congress. Third, Goldsmith has problems with the aggressive and often secretive approach Addington used to maximize the chance that the views of the Vice President’s office prevailed.
I’m not in a good position to opine on any of these matters. As to the first, though, I agree with Goldsmith’s criticism of aspects of the “Bybee memo” of August 2002, which Rosen refers to as the “torture memo.” (Jay Bybee, now a federal judge, was Goldsmith’s predecessor at OLC; the memo apparently was largely the work of John Yoo, a friend of Goldsmith who worked in Bybee’s shop). It’s not possible for me to assess the quality of the other memos that Goldsmith overturned because (to my knowledge) they are classified. As a general matter, it seems to me that most, but not all, of the administration’s legal positions that have become public are at a minimum defensible, and most have commanded enough support when challenged in court to support this assessment. The legal issues associated with the war on terror tend to be difficult and novel, and reasonable people can disagree about most of them.
The case certainly can be made that, as Goldsmith believes, the administration should have worked more closely with Congress on issues like what to do about FISA. However, I understand the administration’s reluctance to do so. First, leaks must have been a substantial concern. For example, the success of the NSA intercept program depended on terrorists not knowing about it. Had President Bush gone to Congress, there’s a good chance terrorists would have learned about the program much sooner than they did. I’m also less sanguine than Goldsmith and others about the extent to which Congress would have cooperated as a general matter. The golden days during which Congress was unified around a serious anti-terrorism policy didn’t last long. For example, the Patriot Act passed easily the first time around, but only with great difficulty the second. Conservative Republicans like John Sununu, John McCain, and Lindsey Graham famously balked at various administration’s legal positions on terrorism issues. Thus from a purely pragmatic standpoint, which is the argument I understand Goldsmith to be making here, there was a case for having the Commander-in-Chief make these calls with as little congressional involvement as possible. Even in hindsight, I’m not sure that pragmatic case has been discredited.
Finally, I’m not in a position, based on Rosen’s article, to assess the “process” issue — i.e., the claim that Addington and Gonzales usurped decision-making responsibility, including legal-policy decisions that were properly entrusted to the attorney general. In Washington, one man’s skillful bureaucrat is often another man’s usurper.
According to Goldsmith, Addington once said, “We’re going to push and push and push until some larger force makes us stop.” That’s not necessarily the wrong approach for the executive branch to adopt in these circumstances, provided that the approach includes a good faith, high-quality analysis as to whether the “pushing” is consistent with constitutional limits and good judgment. If too many high-quality voices within the executive branch are cut-out of the process, the likelihood of such an analysis is diminished.
UPDATE: Ed Whelan, who worked with Goldsmith at the Office of Legal Counsel, has a series of posts about Goldsmith’s book at NRO’s Bench Memos. He doesn’t take sides in Goldsmith’s dispute with Addington et al, but instead emphasizes that the book focuses on much more than what the press is reporting. In particular, Ed notes that Goldsmith spends considerable time criticizing the legal obstacles, and the overall legal culture, that are being superimposed on the country’s/President’s ability to conduct war.
FURTHER UPDATE: I was too busy to get on the internet this morning, but now I see that Glenn Reynolds, who’s been reading Goldsmith’s book, makes the same point as Ed Whelan. According to Glenn:

[W]hat newspapers have chosen to excerpt. . .gives the book more of an anti-Bush spin than it really possesses. . . .Goldsmith is quite critical in places, but he also makes clear. . .that he thinks people in the Administration meant well, and were responding to near-intolerable pressures, even if he often thinks they responded in a sub-optimal fashion.

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