New
York Times Magazine (9.9.07).
Goldsmith had been hired the year before as a legal adviser
to the general counsel of the Defense Department, William J. Haynes II. While
at the Pentagon, Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld
warning that prosecutors from the International Criminal Court might indict
American officials for their actions in the war on terror. Goldsmith described
this threat as “the judicialization of international politics.” No one
was surprised when he was hired in October 2003 to head the Office of Legal
Counsel, the division of the Justice Department that advises the president on
the limits of executive power. Immediately, the job put him at the center of
critical debates within the Bush administration about its continuing response
to 9/11 — debates about coercive interrogation, secret surveillance and the
detention and trial of enemy combatants.
Nine months later, in June 2004, Goldsmith resigned.
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 — both drafted by Goldsmith’s friend Yoo, who served
as a deputy in the office — about the authority of the executive branch to
conduct coercive interrogations. Goldsmith considered these opinions, now known
as the “torture memos,” 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 —
although at considerable cost to Goldsmith himself. By the end of his tenure,
he was worn out. “I was disgusted with the whole process and fed up and
exhausted,” 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
Now Goldsmith is speaking out. In a new book, “The
Terror Presidency,” 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
Cheney’s 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. “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.”
Goldsmith told me that he has decided to speak publicly
about his battles at the Justice Department because he hopes that “future
presidents and people inside the executive branch can learn from our mistakes.”
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
In Goldsmith’s 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, “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.”
I have known Goldsmith since
we were at law school together. In addition to being intellectually curious and
having good judgment, he always struck me as a pragmatic rather than an
ideological conservative. Born in 1962 in
When Goldsmith was asked, four years ago, to head the
Office of Legal Counsel at the Justice Department, he jumped at the opportunity.
Working for the office is one of the most prestigious jobs in government:
former heads and deputies include the Supreme Court Justices William H.
Rehnquist, Antonin Scalia and Samuel A. Alito Jr. 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.
In the post-9/11 era, the office has played a crucial role in
providing legal cover to jittery bureaucrats fearful that officials in the
White House, Defense and State Departments or the C.I.A. might be prosecuted
for their actions in the war on terror. The Justice Department, after all, is
the branch of government responsible for prosecutions, and its own prosecutors
— as well as independent counsels — would be hard pressed to prosecute someone
who had relied on the department’s own opinions in good faith. 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. (The Foreign Intelligence Surveillance
Act of 1978, for example, requires that executive officials get a warrant
before wiretapping suspected enemies in the United States.) 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.
Yoo was a “godsend” to a White House nervous about war-crimes prosecutions, Goldsmith writes in his
book, because his opinions reassured the White House that no official who
relied on them could be prosecuted after the fact. But Yoo’s direct access to
Gonzales angered his boss, Attorney General John Ashcroft, according to
Goldsmith. (Neither Ashcroft nor Gonzales responded to requests for interviews
for this article.) 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.
The matter came to a head in the fall of 2003, when Bybee
left the Office of Legal Counsel and Gonzales suggested Yoo as a candidate to
lead it. Ashcroft rejected the suggestion. Yoo then recommended his friend
Goldsmith to the White House as a suitable alternative. Goldsmith interviewed
with Ashcroft at the Justice Department and with Gonzales and Addington at the
White House. In his interview with Addington and Gonzales, Goldsmith recalls
talking about the dangers of international law and the importance of military
commissions. He got the job.
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.” (Philbin declined to discuss the conversation.)
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
Goldsmith then explained that he agreed with the
president’s determination that detainees from Al Qaeda and the Taliban weren’t
protected under the Third Geneva Convention, which concerns the treatment of
prisoners of war, but that different protections were at issue with the Fourth
Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not
persuaded. (Goldsmith told me that he has checked his recollections of this and
other meetings with at least one other participant or with someone to whom he
described the meetings soon after.)
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.”
The conflict over the Geneva Conventions was just the
beginning. About six weeks after he
started work, Goldsmith became aware that there might be what he calls
“potentially problematic” opinions drafted by the Office of Legal Counsel.
These were the “torture memos,” one of which was written in August 2002 and the
other in March 2003. The August opinion defined torture as pain “equivalent in
intensity to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function or even death.” Goldsmith concluded that
this opinion defined torture far too narrowly. He also had concerns about the
March 2003 opinion, the contents of which remain classified but which dealt
with the military interrogation of aliens held outside the
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. The August opinion, for example, boldly concluded that
“any effort by Congress to regulate the interrogation of battlefield combatants
would violate the Constitution’s sole vesting of the Commander in Chief
authority in the President.” Goldsmith says he believed at the time, and
still does, that “this extreme conclusion” would call into question the constitutionality
of federal laws that limit interrogation, like the War Crimes Act of 1996,
which prohibits grave breaches of the Geneva Conventions, and the Uniform Code
of Military Justice, which prohibits cruelty and maltreatment. 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.
Yoo has acknowledged drafting the August 2002 memo, which
he says was the basis for the interrogation of Abu Zubaydah, a top Al Qaeda
operative. Yoo also wrote and signed the March 2003 opinion. His friendship
with Goldsmith made it especially awkward for Goldsmith to criticize the memos.
“I was basically taking steps to fix the mistakes of a close friend, who I knew
would be mad about it,” Goldsmith told me. “We don’t talk anymore, and that’s
one of the many sad things about my time in government.”
In December 2003, Goldsmith decided that he had to withdraw
the March opinion — that is, he had to tell administration officials that they
could no longer rely on it. “But figuring out how to withdraw it was very
tricky,” he told me, “since withdrawal would frighten everyone who relied on
the opinions in a very sensitive area.” In the past, the Office of Legal
Counsel had occasionally changed its legal positions between presidential
administrations to reflect different legal philosophies, but Goldsmith could
find no precedent for the office withdrawing an opinion drafted earlier by the
same administration — especially on a matter of such importance. Goldsmith
concluded that he could immediately tell the Defense Department to stop relying
on the March opinion, since he was confident that it was not needed to justify
the 24 interrogation techniques the department was actually using, including
two called “Fear Up Harsh” and “Pride and Ego Down,” which were designed to
make subjects nervous without crossing the line into coercion. But the
withdrawal of the August opinion was a much harder call. The August opinion
provided the legal foundation for the C.I.A.’s interrogation program, Goldsmith
says, which he considered much closer to the legal line. (He refused to discuss
the details of the program.)
Goldsmith, however, says he didn’t have the time or
resources to create a replacement opinion immediately. In his initial months on
the job, his attention was focused on the more pressing matter of addressing legal
issues surrounding the terrorist-surveillance program. In April 2004,
however, Goldsmith’s priorities were reversed when the Abu Ghraib scandal
broke. Then, in June of that year, Yoo’s August 2002 opinion was leaked to the
media. “After the leak, there was a lot of pressure on me within the
administration to stand by the opinion,” Goldsmith told me, “and the problem
was that I had decided six months earlier that I couldn’t stand by the
opinion.”
A week after the leak of Yoo’s August 2002 memo, Goldsmith
withdrew the opinion. Goldsmith made the decision himself, in consultation
with Philbin and Deputy Attorney General James B. Comey, both of whom,
Goldsmith says, agreed it was the right thing to do. He then told Ashcroft, who
was, Goldsmith writes, “unbelievably magnanimous: it had happened on his watch,
and he could have overruled me, and he didn’t.” Goldsmith was concerned,
however, that the White House might overrule him. So he made a strategic
decision: 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. “If the story had come out that the U.S.
government decided to stick by the controversial opinions that led the head of
the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith
told me. “The timing was designed to ensure that the decision stuck.”
Again, according to Goldsmith, Addington was furious.
During his brief time in office, Goldsmith had withdrawn not only the two
torture opinions but also others. (He refused to discuss the other opinions
with me.) In the end, he says, he had withdrawn more opinions than any of his
predecessors. Shortly before he resigned, Goldsmith says, Addington confronted
him in Gonzales’s office, pulling out of his jacket pocket a 3-by-5 card that
listed the withdrawn opinions. “Since you’ve withdrawn so many legal opinions
that the president and others have been relying on,” Addington said, according
to Goldsmith, “we need you to ... let us know which [of the remaining] ones you
still stand by.” Goldsmith recalls that Gonzales, in his own farewell chat with
him, said, “I guess those opinions really were as bad as you said.”
Looking back, Goldsmith says, he criticizes but does not
vilify Yoo, whom he believes wrote and defended the opinions in good faith.
Praising Yoo’s “knowledge, intelligence and energy,” he writes in his book that
“the poor quality of a handful of very important opinions is probably
attributable to some combination of the fear that pervaded the executive
branch, pressure from the White House and Yoo’s unusually expansive and
self-confident conception of presidential power.”
I have known Yoo since we were in law school together as well,
and I called him for a response. “I think Jack and I had a good-faith
disagreement, but I think at some level this was elevating form over
substance,” he said. Yoo said that in writing the torture memo, he experienced
no pressure from the White House, which he described as “hands off.” Instead,
he said, “there was an urgency to decide so that valuable intelligence could be
acquired from Abu Zubaydah, before further attacks could occur.” 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.)
Yoo also rejects the criticism that his reasoning was
unnecessarily broad, describing the criticism of his opinion as something that
could have been made only with the benefit of hindsight. “You can claim it’s
too broad after the policy has been decided on, but I didn’t have that luxury
in the spring of 2002,” he told me. “If you’re providing the legal advice
before they choose the policy, how could you know?”
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.”
During his tenure at the Office of Legal
Counsel, Goldsmith also clashed with Addington over the detention and trial of
suspected terrorists. In January 2004, the Supreme Court agreed to review a
lower-court decision approving the detention of Yaser Hamdi, an American
citizen then being held as an enemy combatant. A group of administration
lawyers including Goldsmith met with Gonzales and Addington in Gonzales’s
office to discuss the implications of the case. “Why don’t we just go to
Congress and get it to sign off on the whole detention program?” Goldsmith
recalls asking, reasoning that the Supreme Court would be less likely to strike
down a detention program in wartime if Congress had explicitly supported it.
According to Goldsmith, Addington shot down the idea.
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.
That rebuke finally arrived, however, last year in the Hamdan case, when the Supreme Court rejected the
administration’s claim that it could try suspected terrorists in military
commissions created without Congressional approval. In a further blow to the administration, the court held
that the legal protections of “common article 3”
of the Geneva Conventions, which contains minimal protections for detainees in
wartime, also applied in the war against Al Qaeda. Goldsmith says he believes this ruling was “legally erroneous” but
“hugely consequential.” It provided detainees at Guantánamo with more rights
than the administration had ever acknowledged, and it implied that the War
Crimes Act might be used to prosecute administration officials for their
treatment of detainees.
In debates over the detention of suspected terrorists,
Goldsmith says he was struck by how Addington’s efforts to expand
presidential power ultimately weakened it. In September 2006, two months
before the midterm elections, Bush eventually did ask Congress to approve his
military commissions, and Congress promptly passed a law that gave him
everything he asked for, authorizing many aspects of the military commissions
that the Supreme Court had struck down. Although Bush had won the battle,
Goldsmith sees the refusal to go to Congress earlier as the cause of an
unnecessary Supreme Court defeat. “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.”
In Goldsmith’s estimation, the unnecessary
unilateralism of the Bush administration reached its apex in the
controversy over wiretapping and secret surveillance. Goldsmith says he
did not originally intend to mention the surveillance controversy in his book.
But he says he was infuriated, soon before finishing his manuscript, to be
handed a subpoena in Cambridge by F.B.I. agents ordering him to testify in a
criminal investigation into the leaks that resulted in stories by James Risen
and Eric Lichtblau in The New York Times about the National Security Agency’s
warrentless wiretapping. After having a public conversation with the F.B.I. in
the middle of
Goldsmith emphasizes that he was not opposed to
investigating the leak, which he agreed with President Bush did “great harm to
the nation.” In addition, 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.
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.
Goldsmith also witnessed perhaps the most well-known
confrontation over the administration’s aggressive tactics: the scene at
Ashcroft’s hospital bed on March 10, 2004, when Gonzales and Andrew Card, the
White House chief of staff, visited the hospital to demand that the ailing
Ashcroft approve, over Goldsmith and Comey’s objections, a secret program that
was about to expire. (Goldsmith refuses to identify the program, but Robert S.
Mueller III, the F.B.I. director, has publicly indicated it was the terrorist
surveillance program.) As he recalled it to me, Goldsmith received a call in
the evening from his deputy, Philbin, telling him to go to the
Suddenly, Gonzales and Card came in the room and announced
that they were there in connection with the classified program. “Ashcroft, who
looked like he was near death, sort of puffed up his chest,” Goldsmith recalls.
“All of a sudden, energy and color came into his face, and he said that he
didn’t appreciate them coming to visit him under those circumstances, that he
had concerns about the matter they were asking about and that, in any event, he
wasn’t the attorney general at the moment; Jim Comey was. He actually gave a
two-minute speech, and I was sure at the end of it he was going to die. It was
the most amazing scene I’ve ever witnessed.”
After a bit of silence, Goldsmith told me, Gonzales thanked
Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith
recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening
to her sick husband, looked at Gonzales and Card as they walked out of the room
and stuck her tongue out at them. She had no idea what we were discussing, but
this sweet-looking woman sticking out her tongue was the ultimate expression of
disapproval. It captured the feeling in the room perfectly.”
Goldsmith, Comey, Mueller and other Justice Department
officials were prepared to resign en masse if the White House implemented the
program over their objections. Two days later, Comey had a conversation at the
White House with Bush in which the president told him to do whatever was
necessary to make the program legal. And in the end, the entire controversy was
arguably unnecessary since the program was eventually approved by Congress and
brought, at least partially, under the supervision of the
The heroes of Goldsmith’s book — his
historical models of presidential leadership in wartime — are Presidents
Lincoln and Franklin D. Roosevelt. Both of them, as Arthur Schlesinger noted in
his essay “War and the Constitution,” “were lawyers who, while duly respecting
their profession, regarded law as secondary to political leadership.” In
Goldsmith’s view, an indifference to the political process has ultimately made
Bush a less effective wartime leader than his greatest predecessors.
Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions
in the war on terror to be adopted in his name, without bothering to try to
persuade Congress and the public that his positions were correct. “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.”
Goldsmith says he remains convinced of the seriousness of
the terrorist threat and the need to take aggressive action to combat it, but
he believes, quoting his conservative Harvard Law colleague Charles Fried, 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.”
Jeffrey Rosen, a law professor at George Washington
University, is a frequent contributor to the magazine. He is the author most
recently of ‘‘The Supreme Court: The Personalities and Rivalries That Defined