Thursday, September 6, 2007

Jack Goldsmith: Shameless Shill? or Clueless Conservative?

In "Conscience of a Conservative", Jeffrey Rosen of the New York Times Magazine gives his readers an advance look at "The Terror Presidency", a book coming soon from Jack Goldsmith [photo], who headed the
Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power
for nine months between September 2003 and June 2004.

Goldsmith resigned in order to strengthen a decision he had made to restrict presidential power -- one of several such decisions that Goldsmith reportedly made during his short tenure in office.

Given that Goldsmith came to the administration as a highly-regarded University of Chicago law professor, and given that he's currently teaching at Harvard Law School, it doesn't seem right to call him "clueless". And given his resistance to the Bush administration's power-grabbing agenda, it doesn't seem right to call him "shameless". Or does it?

Read what Goldsmith says; author Jeffrey Rosen gets out of the way as much as possible in the following excerpts (my emphasis throughout):

About the Office of Legal Counsel:
The Office of Legal Counsel interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.
For this reason, the office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.

In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith’s arrival were made not by the Office of Legal Counsel but by a self-styled “war council.” This group met periodically in Gonzales’s office at the White House or Haynes’s office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo. These men shared a belief that the biggest obstacle to a vigorous response to the 9/11 attacks was the set of domestic and international laws that arose in the 1970s to constrain the president’s powers in response to the excesses of Watergate and the Vietnam War.

Goldsmith told me that he objected to what he calls the “extremely broad and unnecessary analysis of the president’s commander in chief power” in the memos. [...] He also found the tone of both opinions “tendentious” rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.
About the GWOT and the Geneva Conventions:
“I shared, and I still share, a lot of their concerns about what we have to do to meet the terrorist threat,” he told me. When I asked whether he thought Gonzales should have resigned and whether Addington should follow, he demurred. “I was friends with Gonzales and feel very sorry for him,” he said. “We 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.”

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.”

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.”

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.
Subtle, no?

About the quest for unlimited power:
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.”

Goldsmith puts the bulk of the responsibility for the excesses of the Office of Legal Counsel on the White House. “I probably had a hundred meetings with Gonzales, and there was only one time I was talking about a national-security issue when Addington wasn’t there,” Goldsmith told me. “My conflicts were all with Addington, who was a proxy for the vice president. They were very, very stressful.”

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes. Goldsmith’s first experienced this extraordinary concealment, or “strict compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.

He shared the White House’s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.

“I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith told me. “It’s hard to know how he would know.”

The Bush administration’s legalistic “go-it-alone approach,” Goldsmith suggests, is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”

In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
In my view, Goldsmith's statement that Bush
“could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.”
misses the point entirely.

Bush didn't "reach out to other institutions of government" because he was not looking to build a relationship with those institutions. He wanted to negate "other institutions of government", and he has managed extremely well.

There were always presidential powers other than the power to persuade. But there are a lot more of them now than there used to be.

It's a great mystery: How can a gifted attorney, who has seen the administration's favorite tactics close-up, fail to understand that this is what they were trying to do?
The patently illegal surveillance programs of the authoritarian regime have now been codified into law by the Democratic Congress, which has also let stand the evisceration of habeas corpus in the Military Commissions Act, and a raft of other liberty-stripping laws, rules, regulations and executive orders. Bush's self-proclaimed arbitrary power to seize American citizens (and others) without charge and hold them indefinitely -- even kill them -- has likewise been unchallenged by the legislators. Bush has brazenly defied Congressional subpoenas -- and even arbitrarily stripped the Justice Department of the power to enforce them -- to no other reaction than a stern promise from Democratic leaders to "look further into this matter." His spokesmen -- and his "signing statements" -- now openly proclaim his utter disdain for representative government, and assert at every turn his sovereign right to "interpret" -- or ignore -- legislation as he wishes. He retains the right to "interpret" just which interrogation techniques are classified as torture and which are not, while his concentration camp at Guantanamo Bay and his secret CIA prisons -- where those "strenuous" techniques are practiced -- remain open. His increasingly brazen drive to war with Iran has already been endorsed unanimously by the Senate and overwhelmingly by the House, both of which have embraced the specious casus belli concocted by the Bush Regime.

Look at the facts, the reality: Bush wants Congressional approval of his illegal surveillance; he gets it. Bush wants to launch spy satellites against the American people; he does it. Bush wants concentration camps and secret prisons with torture; he's got them. Bush wants to escalate a ruinous, murderous, unpopular war; he does it. He wants to declare people "enemy combatants" and imprison them indefinitely; he does it. Bush's spokesmen openly claim that the laws passed by the people's representatives are "just advisory" and "the president can still do whatever he wants to do," and there is no outcry, no action, no defense of the Republic against this overthrow of the Constitution.
But despite all this, Jack Goldsmith says
that the Bush administration “badly overplayed a winning hand.” In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
Is he pitifully ignorant or deliberately lying? And why is our country always in the hands of people who are definitely one or the other?

On further reflection, it's a wrong question! There's no need for the "or". There's nothing mutually exclusive about anything here.

Goldsmith, despite his teaching history and his short-lived internal opposition to power-hunger, appears to be both shameless and clueless, just as our country appears to be in the hands of people who are both ignorant and lying.

But that may be a mirage. Jack Goldsmith was one of three editors of a book published in 2005 by Princeton University Press. The book is called "On Nineteen Eight-Four: Orwell And Our Future".

How do you get a gig like that? There's only one way.

He's not clueless. He's not ignorant. He's just a shameless spinner, who put up some token resistance that hasn't even mattered in the long run. But he's a hero -- the sort of guy who inspires the NYT editors to shoehorn the words "Conservative" and "Conscience" into the same title.

Another passage from "Magazine Preview: Conscience of a Conservative" shows that Goldsmith had no real concern for the preservation of liberty, and was only quibbling about methods:
“I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he told me. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.”
I can't help wondering whether that's the sort of thing one has to say to get the New York Times to promote one's new booke.

If Goldsmith had told the truth -- if he had said that far from weakening it, Bush has strengthened the presidency beyond beyond all constraint; if he had said that this was the president's goal all along -- he might just have had to go out and sell those books himself!

If you're Jack Goldsmith, you're thanking goodness for the old grey bitch of the "liberal media". If you preferred what your country used to be, you're shaking your head in disgust.

At least your eyes won't get stuck.


[See also]

Bob Parry: Bowing Before an American Tyranny