The Blog

A Review of Jack Goldsmith's <em>The Terror Presidency</em>

Goldsmith's book is one of the most interesting and insightful books yet to come out of the Bush White House. His objection is not to the Bush administration's policies, but to how they were adopted.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

Jack Goldsmith's The Terror Presidency is one of the most interesting and most insightful books yet to come out of the Bush White House.

In October 2003, President Bush appointed Goldsmith, a self-described conservative who proudly proclaims that he is not a civil libertarian, head of the Justice Department's Office of Legal Counsel, thus making him chief adviser to the president about the legality of presidential actions. Ten months later, Goldsmith resigned because he could not endorse the unlawful policies the administration had implemented in the war on terror.

Shortly after taking office, Goldsmith reviewed a series of highly confidential opinions written by his predecessors in the Bush administration that defended the legality of "some of the most sensitive counterterrorism operations in the government." To Goldsmith's shock and dismay, he found that some of these opinions "were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." What was going on?

In part, The Terror Presidency recounts Goldsmith's personal journey during the 10 months he served the president. It describes in considerable detail, consistent with the need to protect classified information, his conversations with John Ashcroft, Alberto Gonzales, David Addington (counsel to the vice president) and other Bush insiders. It is a fascinating and unnerving story. But what makes this work particularly compelling is not its inside-the-White-House anecdotes, but Goldsmith's institutional, historical and legal analyses of the unique challenges that confronted the White House after 9/11.

The following anecdote captures the mood: In spring 2004, Goldsmith informed Addington that the administration could not lawfully implement a potentially important counterterrorism measure. Addington, who "acted with the full backing" of the vice president and who routinely "crushed bureaucratic opponents," exploded: " 'If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.' "

Addington's response speaks volumes about the incredible and understandable pressure felt by the Bush administration to keep America safe. Every morning, the White House receives a " 'threat ma- trix' " that lists every threat directed at the U.S. in the preceding 24 hours. The matrix can be dozens of pages long. As Goldsmith notes, "It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives."

One of Goldsmith's colleagues in the administration analogized "the task of stopping our enemy to a goalie in a soccer game who 'must stop every shot,' " for if the enemy " 'scores a single goal,' " the terrorists succeed. To make matters worse, " 'the goalie cannot see the ball -- it is invisible. So are the players -- he doesn't know how many there are, or where they are, or what they look like.' " Indeed, the invisible players might shoot the ball " 'from the front of the goal, or from the back, or from some other direction -- the goalie just doesn't know.' " With such a mind set, it is no wonder that 9/11 generated a "panicked attitude" within the White House.

Exacerbating this attitude was a profound and little-noted transformation in the legal position of the executive branch over the last 50 years. In past crises, presidents like Abraham Lincoln and Franklin Roosevelt faced extreme threats to the national security. But they enjoyed broad freedom to respond to the danger without meaningful legal constraint.

To illustrate this point, Goldsmith relates in some detail Roosevelt's decision to intern almost 120,000 people of Japanese descent after Pearl Harbor. Although Atty. Gen. Francis Biddle strongly opposed this action and advised Roosevelt that it was unlawful and unconstitutional, the president blithely ignored Biddle's advice. Goldsmith writes:

"Having failed once to prevent a surprise attack by people of Japanese ancestry, [Roosevelt] did not think he could afford to ignore popular demands for security. . . .

"Roosevelt could think this way because the law governing presidential authority during his era was largely a political rather than a judicial constraint on presidential power."

FDR was concerned "about the reaction of the press, the Congress, and most of all, the American people," but he was not at all concerned "about being sued or prosecuted, or about defending his actions before a grand jury or an international court."

All this had changed by the time of 9/11. After the widespread abuses of executive power during the Vietnam War and Watergate, and the shocking disclosure of the FBI's, the CIA's and the National Security Agency's extensive surveillance of political dissenters from the 1950s to the 1970s, the U.S. government enacted a series of laws -- such as the War Powers Act of 1973, the Foreign Intelligence Surveillance Act of 1978 and the Torture Act of 1994 -- that sharply restricted "many aspects of presidential war power." Moreover, in the decades after World War II, the international community enacted a broad range of regulations, such as the Geneva Conventions on Prisoners of War, that assert international jurisdiction over human-rights violations.

Although conceding that there "were many good reasons for these" domestic and international regulations, Goldsmith notes that they have had a powerfully intimidating effect on government officials, particularly because most of these laws are vaguely worded. Public officials engaged in protecting the national security worry that "investigators acting with the benefit of hindsight" might someday prosecute them for their "heat-of-battle judgment calls." Moreover, these officials are acutely aware that even if they emerge " 'innocent' " from such a prosecution, the investigation itself "can produce reputation-ruining dishonor and possibly end one's career."

The caution generated by this new legal environment has been "reinforced by the swarm of lawyers that rose up in the military and intelligence establishment to interpret" these laws and "provide cover for those asked to act close to the legal line." Over the years, intelligence officers "seeking to avoid 'retroactive discipline' increasingly sought lawyers' permission before acting." By the time of 9/11, "a paralyzing culture of risk-averse legalism" had spread through the military and intelligence Establishments. "[S]pooked by cautious lawyers" -- there are now 10,000 lawyers in the Defense Department alone -- intelligence officers, according to Goldsmith, "failed to take actions that might have prevented the 9/11 attacks."

The Bush administration's response to this dilemma was to embrace a historically unprecedented conception of the constitutional powers of the president. This view, which was championed by Addington and John Yoo, author of the notorious "torture memos," maintains that presidential power is "coextensive with presidential responsibility." In Addington's view, because the president "would be blamed for the next homeland attack, he must have the power" to do whatever he deemed necessary to prevent it, regardless of international and U.S. laws. According to Goldsmith, in advocating this position, which goes far beyond anything any president has ever asserted, Addington "was channeling the Vice President and . . . the President."

As it implemented its "go-it-alone" conception of executive authority, the administration "rejected any binding legal constraints" on the president's power. Whenever anyone suggested consulting Congress on such matters as detention, interrogation, habeas corpus, military commissions, or surveillance, Addington's invariable response was, " 'Why are you trying to give away the President's power?' "

The most critical issue Goldsmith encountered involved the "torture memos," which purported to provide a "legal basis for what President Bush later confirmed were 'alternative interrogation procedures used at secret locations.' " Consistent with the administration's extreme view of presidential authority, the memos argued that the Torture Act of 1994 -- which made it unlawful for government officials to engage in torture -- violated the president's inherent constitutional power as commander in chief to authorize torture. According to Goldsmith, CIA interrogators viewed these memos as a " 'golden shield' " that would insulate them against criminal liability.

Although no head of the Office of Legal Counsel had ever overturned an opinion issued by the office in the same administration, Goldsmith concluded that the extreme assertion of presidential authority in the torture memos had "no foundation" in any "source of law." They rested entirely on "one-sided legal arguments" and were nothing more than unreasoned assertions of "sheer power." Goldsmith decided he had a legal and constitutional responsibility to withdraw the torture opinions.

At the same time he informed Atty. Gen. Ashcroft that he was withdrawing the opinions (Ashcroft, by the way, was "supportive" of Goldsmith's conclusion), he also submitted his resignation, in part "to ensure that my withdrawal" of the torture memos "would stick." The timing, he believed, "would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest." He was right, and it worked.

To understand this book, it is necessary to keep in mind that Goldsmith generally agrees with the Bush administration about the measures the government must take to protect national security. His objection is not to the policies, but to the way they were adopted. Put differently, he is concerned less with civil liberties than with the separation of powers. As Goldsmith observes, "Political debate is one of the strengths of democracy in wartime, for it allows the country's leadership to learn about and correct its errors." Because the Bush administration eschewed consultation with Congress, the nation "still lacks the comprehensive, coherent, and durable institutions it needs to surveil, detain, and incapacitate terrorists."

The net effect of the Bush administration approach has been deeply ironic. Although "the President and Vice President wanted to leave the presidency stronger than they found it," they "achieved the opposite." By unlawfully disregarding statutory, international and constitutional law, they "borrowed against the power of future presidencies -- presidencies that . . . will be viewed by Congress and the courts . . . with a harmful suspicion and mistrust." Because of the Bush administration's obsession with excessive presidential power, our nation and our democracy are less secure.

This review appears in the Chicago Tribune on October 7, 2007.