Too Much Even For A Repug

A long one is coming up here.

I was remiss in not getting to this earlier, but in the Sunday New York Times magazine on September 9th (the one with the face of Rudy! plastered in the cover like he’s a Hollywood tough guy in a profile by Matt Bai, who I guess took a break from bashing Democrats and lefty bloggers in particular with Nick Gillespie's help to fluff the presumptive Repug nominee for preznit), writer Jeffrey Rosen profiled Jack Goldsmith, who started as a legal counsel within Bushco’s Defense Department but soon found himself hired to head the Office of Legal Counsel in the Justice Department in October 2003.

And he quit nine months later.

As Rosen tells us…

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 (and fellow law professor John) 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 challenged Bushco on other legal issues, and he left the job “fed up and exhausted” when it became too much. And his silence was interpreted as consent (particularly when it came to the torture memos) by people such as Elizabeth Bartholet of the Harvard Law School, a colleague of Goldsmith’s (he accepted a tenured professorship there after leaving government). As Goldsmith tells Rosen, that has a lot to do with why he wrote the book.

In “The Terror Presidency,” Goldsmith recounted the following…

…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.

…

In Goldsmith's view, the Bush administration went about answering (the questions of limits of executive power and legal liability) 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.''

And concerning his friend Yoo (though Goldsmith tells us in the book that they no longer communicate, which earns points for Goldsmith as far as I’m concerned)…

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 (Gonzales, Addington, Defense Department General Counsel William J. Haynes II and Yoo) 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 more I hear of Ashcroft as of late, by the way (including the infamous hospital room confrontation where he was asked to sign off on the domestic spying program while still very sick, and Goldsmith witnessed that also), the more I think he at least had a conscience among these cretins.

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 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.'' (Addington declined to comment on this and other details concerning him in this article.)

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.''

Anyone who still believes David Addington is a sane individual at this point needs to question their own sanity as far as I’m concerned (and another choice item involving this guy is coming up later).

And concerning the two opinions from Yoo that Goldsmith considered to be “tendentious, overly broad and legally flawed,” Goldsmith withdrew the second opinion of March 2003 (which dealt with the military interrogation of aliens, though the contents are classified) in December of that year. Concerning the first opinion from Yoo written in August 2002 (and leaked in June 2004, which tried to keep Congress from "(tying) the hands of the president in regulating the interrogation of battlefield combatants")…

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.''

…

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.

…

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) shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But (he) 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.

Nice guy, that David Addington. Doesn’t matter who you kill or how many to get what you want for the preznit, does it, you psycho?

And coming back once more to what Goldsmith pointed out earlier…

The Bush administration's legalistic ''go-it-alone approach,'' Goldsmith suggests, is the antithesis of Lincoln and Roosevelt's willingness to collaborate with Congress (Lincoln and FDR, strangely enough, are heroes to Goldsmith). 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.''

Sounds like “history’s actors” have created a template for future presidencies sadly deficient from the grandiose one they once envisioned. How utterly appropriate for these clowns.