Everyone must read this article.
Goldsmith is scheduled to testify in front of the SJC when congress returns from summer recess, and the article provides background for what may be very important testimony in the Senate oversight of the Warrantless Wiretapping program.
Although Goldsmith is admittedly a conservative, he differed with the Bush Administration over how far the executive could go alone:
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.
The article is flush with examples of how Jack Goldsmith challenged the unprecedented Unitary Executive expansion crafted from within the Office of the Vice President after 9/11. It is clear that the War on Terror facilitated the thrust for broad executive powers that had no legal basis. One telling quote illustrates the dependency of the usurpers of the constitution on Terrorism:
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.
Important insights from the Article:
- Decisions about how to prosecute the "War on Terror" originated outside the normal legal channels of Government:
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." ... 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.
- John Yoo acted virtually alone in crafting the broad executive power justifications of torture:
The head of the Office of Legal Counsel in the first years of the Bush administration, Jay Bybee, had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch.
- Ashcroft opposed the "War Council" concept"
Ashcroft, Goldsmith says, felt that Gonzales and the war council were usurping legal-policy decisions that were properly entrusted to the attorney general, such as the creation of military commissions, which Gonzales supported and Ashcroft never liked.
- Goldsmith became the Nemesis of Addington/Cheney/Gonzales within hours of his appointment. After deciding the Geneva Convention applied to Iraqi civilians including insurgents and terrorists, Goldsmiths Deputy Patrick Philbin told him "They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no."
- Terror events were a useful tool to Addington/Cheney/Gonzales in forcing broader executive powers. In addition to the Addington quote above the fold, the article notes that when Goldsmith tried to question another presidential decision, Addington told him "If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands."
- The Yoo Torture memo was withdrawn by Goldsmith in consultation with Philbin and Comey, and with Ashcroft's support. Further,
on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story.
Goldsmith notes that "The timing was designed to ensure that the decision stuck."
- The White House (and especially Addington in the OVP) was driving the executive overreach:
"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."
- Warrantless wiretapping is top secret, but not so secret that it cannot be discussed when they subpoenaed Goldsmith for the leak investigation:
After having a public conversation with the F.B.I. in the middle of Harvard Square about aspects of the terrorist-surveillance program, Goldsmith concluded he could discuss the same topics in his book
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Summary
There are other important details from this article that shed light on the machinations of the Bush Administration, and I encourage everyone to read it in full. The SJC investigations into the DOJ and Warrantless Wiretapping will continue, and Goldsmith will no doubt be an important witness. It is clear that the Cheney was the mastermind of the efforts to create a Unitary Executive, and that Terror incidents facilitated these efforts. From October 2003- June 2004, the only brake to executive overreach was a group of DOJ lawyers consisting of Goldsmith, Patrick Philbin, and James Comey, who had the support of Jim Ashcroft.
We do not know what happened in our government after these principled men left the Bush Administration. We do know that Gonzales, one of Cheney's Flying Monkeys of Executive Overreach, became Attorney General when Ashcroft stepped down. According to the article, Goldsmith's principled stand did not have that much affect on Administration policies:
Yoo says it is his understanding that no policies or interrogation techniques changed as a result of the withdrawal of the torture memo, noting that all policies that were legal under the withdrawn opinions are also acknowledged as legal under the opinion that eventually replaced the withdrawn ones. (That opinion was issued in December 2004, six months after Goldsmith’s resignation, and was signed by Daniel Levin, his acting successor as head of the Office of Legal Counsel.)
Nonetheless, there is a sparkling tidbit in the article that offers hope for the Post-Gonzales DOJ: Paul Clement, the former DOJ Solicitor General who replaced Gonzales, apparently sided with Goldsmith/Comey on Administration overreach issues:
Not long before Goldsmith left, the Supreme Court approved in June 2004, in the Hamdi case, the detention power itself but put some modest restrictions on the administration’s ability to detain citizens without trial. Afterward, Gonzales, Addington, Goldsmith and others, including the deputy solicitor general, Paul Clement, met again, Goldsmith recalls, and he and Clement again proposed going to Congress to put the administration’s legal strategy on a more sound footing. Once again, Goldsmith told me, the advice was ignored, and the White House continued to operate as if it assumed it could avoid a strong rebuke from the Supreme Court.
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