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:: By Richard Mertens

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Chicago Journal ::

Power struggle

Former Law School professor Jack Goldsmith recounts his clashes with White House insiders.

In October 2003 Jack Goldsmith seemed a natural fit for a sensitive legal job in the Bush administration. A foreign-affairs expert, the former Law School professor agreed with the president on a range of issues, from the use of military tribunals for terrorism suspects to the withholding of American participation in the International Criminal Court. He also was friends with John Yoo, another bright, young conservative lawyer who had formulated the administration’s legal response to 9/11.


And yet Goldsmith’s career as a top adviser in the Justice Department proved stormy and short-lived. Appointed to head the Office of Legal Counsel, Goldsmith was tasked with advising Attorney General John Ashcroft, JD’67, and Bush on the legality of presidential actions. Almost immediately he collided with administration hardliners over domestic spying, the detention and trial of enemy combatants, and coercive interrogation. Faced with growing pressure and disapproval from his superiors, he quit after ten months.

Goldsmith was back in Chicago this past October, not long after the publication of his memoir of those tumultuous months, The Terror Presidency: Law and Judgment Inside the Bush Administration. Appearing at a Program on International Security Policy workshop, he recounted how he clashed with insiders like David Addington, then Vice President Cheney’s legal adviser, reversing earlier Justice Department opinions that the administration had relied upon for its anti-terrorism policies, including the now infamous “torture memos.” He described an administration motivated by genuine fear for the nation’s safety but prone to sloppy legal reasoning, obsessed with expanding the president’s power, and intent on “going it alone.”

Speaking to about 100 students and faculty in Social Science 122, Goldsmith insisted that his account was “not really an attack on the Bush administration.” Instead, he said, it is an argument about the underlying “tension” in government between legal constraints and the fear of not doing enough to protect the country.

“The view of the executive branch was that no matter what we did or no matter how we tried, we’re going to be held responsible when a lot of people get killed, and therefore we have to do everything we can to prevent [terrorism],” he said, a view that caused “the administration to push along every dimension possible.”

The threat of terrorist attacks has put demands on the legal framework of the government equivalent to those faced during the Civil War and World War II, Goldsmith said, arguing that what’s new is the framework itself. Abuses by American intelligence agencies in the ’50s, ’60s, and ’70s led Congress to enact legal constraints unknown to Presidents Lincoln and Roosevelt.

“In this war, more than any other in history, the president is encumbered by everything he does by law, a lot of it very fine-grain law, a lot of it enforceable by criminal sanctions,” he said. “The CIA, the military, and the [National Security Agency] are the most legalized, rule-bound entities I’ve ever encountered. They simply can’t act—they won’t act—without the permission of lawyers.”

For example, Goldsmith said “wishy-washy” advice from attorneys discouraged the CIA from carrying out an elaborate 1998 plan to kill Osama bin Laden. Even quotidian military decisions are vetted by legal experts. “If you’re in the air force,” he said, “you can’t bomb a target without getting permission from a lawyer.”

It was natural, he said, for an administration to push back. As an assistant attorney general, he too felt it was his duty to “push the envelope”—to find legal justification for presidential actions. But an obsession with expanding presidential power and a disdain for “risk-averse” lawyering caused the administration to rely on shaky but expedient legal reasoning, stifle argument, and push ahead without consulting other branches of government.

Excessive secrecy prevented much-needed discussion within the administration, Goldsmith said: “I used to have a naive, uninformed view that secrecy in government was necessary. In national security you can’t let the enemy know what you are doing. What I didn’t understand were the enormous costs of secrecy. … The lack of internal examination and debate led to error after error after error.”

But Goldsmith emphasized that even the administration’s most zealous advocates had good intentions. “It wasn’t because they were crazy, power-hungry people,” he said. “It was a more principled stand than that. … They thought these restrictions were going to tie the president’s hands and prevent him from keeping America safe.”

The heroes in Goldsmith’s tale are Lincoln and Franklin D. Roosevelt who faced similar wartime crises with greater success. Both presidents also pushed executive power as far as they could, but did so using their powers of persuasion to reach out to the public, build a consensus, spread accountability, and put pressure on Congress. “This is the messy process of politics that the Bush administration did not like,” he said. “It involves argument, debate, push back, compromise, explanation, justification—all the things that are costly and difficult. It’s just a lot easier to go it alone.”

Goldsmith, who joined the Harvard Law School faculty after leaving the Justice Department, cautioned that the difficulty of keeping the country safe while complying with the law will not end with the Bush administration. “We may shut down GTMO, but we’re not going to send all the prisoners home,” he said. “We’re not going to end aggressive surveillance.”

Now exploring institutional ways to allow for a powerful executive in wartime but with more accountability than he witnessed in the Bush administration, Goldsmith admitted there are no easy solutions: “At the end of the day it’s not about institutional fixes. It’s about who we elect to positions of power.”