[inteldump] Phillip Carter:

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Posted by Phillip Carter:

http://inteldump.powerblogs.com/archives/archive_2007_09_09-2007_09_15.shtml#1189348569


   [1]Photo: NYT Today's [2]Sunday NY Times Magazine features a lengthy
   profile of Harvard law professor Jack Goldsmith by Jeffrey Rosen, a
   prominent legal scholar in his own right. Goldsmith, you may remember,
   ran the Justice Department's Office of Legal Counsel from October 2003
   to June 2004. OLC is the executive branch's in-house adviser on
   matters of Constitutional law, and Goldsmith ran it during an
   extremely important time. He resigned in June 2004, and now has a book
   ("[3]The Terror Presidency") coming out about his experiences. In the
   NYT, Rosen offers a few teasers about what Goldsmith has to say:

     . . . Although he refused to discuss his resignation at the time,
     he had led a small group of administration lawyers in a
     behind-the-scenes revolt against what he considered the
     constitutional excesses of the legal policies embraced by his White
     House superiors in the war on terror. During his first weeks on the
     job, Goldsmith had discovered that the Office of Legal Counsel had
     written two legal opinions â both drafted by Goldsmithâs friend
     Yoo, who served as a deputy in the office â about the authority of
     the executive branch to conduct coercive interrogations. Goldsmith
     considered these opinions, now known as the âtorture memos,â to be
     tendentious, overly broad and legally flawed, and he fought to
     change them. He also found himself challenging the White House on a
     variety of other issues, ranging from surveillance to the trial of
     suspected terrorists. His efforts succeeded in bringing the Bush
     administration somewhat closer to what Goldsmith considered the
     rule of law â although at considerable cost to Goldsmith himself.
     By the end of his tenure, he was worn out. âI was disgusted with
     the whole process and fed up and exhausted,â he told me recently.
     After leaving the Office of Legal Counsel, Goldsmith was uncertain
     about what, if anything, he should say publicly about his
     resignation. His silence came to be widely misinterpreted. After
     leaving the Justice Department, he accepted a tenured professorship
     at Harvard Law School, where he currently teaches. During his first
     weeks in Cambridge, in the fall of 2004, some of his colleagues
     denounced him for what they mistakenly assumed was his role in
     drafting the torture memos. One colleague, Elizabeth Bartholet,
     complained to a Boston Globe reporter that the faculty was remiss
     in not investigating any role Goldsmith might have played in
     âjustifying torture.â âIt was a nightmare,â Goldsmith told me. âI
     didnât say anything to defend myself, except that I didnât do the
     things I was accused of.â
     Now Goldsmith is speaking out. In a new book, âThe Terror
     Presidency,â which will be published later this month, and in a
     series of conversations I had with him this summer, Goldsmith has
     recounted how, from his first weeks on the job, he fought
     vigorously against an expansive view of executive power championed
     by officials in the White House, including Alberto Gonzales, who
     was then the White House counsel and who recently resigned as
     attorney general, and David Addington, who was then Vice President
     Cheneyâs legal adviser and is now his chief of staff. Goldsmith
     says he is not speaking out for the money; though he received a low
     six-figure advance for the book, he is, after deducting some minor
     expenses, donating the advance and any profits to charity. Nor is
     he speaking out because he disagrees with the basic goals of the
     Bush administration in the war on terror. âI shared, and I still
     share, a lot of their concerns about what we have to do to meet the
     terrorist threat,â he told me. When I asked whether he thought
     Gonzales should have resigned and whether Addington should follow,
     he demurred. âI was friends with Gonzales and feel very sorry for
     him,â he said. âWe got along really well. I admired and respected
     Addington, even when I thought his judgment was crazy. They thought
     they were doing the right thing.â
     Goldsmith told me that he has decided to speak publicly about his
     battles at the Justice Department because he hopes that âfuture
     presidents and people inside the executive branch can learn from
     our mistakes.â 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 â as well as his own
     lawyers â 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?
     In Goldsmithâs 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, âgo-it-aloneâ view of executive
     power. As Goldsmith sees it, this strategy has backfired. âThey
     embraced this vision,â he says, âbecause 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.â

References

   1. http://www.nytimes.com/2007/09/09/magazine/09rosen.html
   2. http://www.nytimes.com/2007/09/09/magazine/09rosen.html
   3. http://www.amazon.com/gp/product/0393065502?ie=UTF8&tag=inteldump-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0393065502