Conscience of a Conservative

Jack L Goldsmith was widely considered one of the stars in the conservative firmament. Along with John Yoo he became a leading proponent of the argument that international standards of human rights should not apply in cases before U.S. courts.

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.

Goldsmith was, therefore, a believer. A true Bush foot soldier and loyal servant to the neo-con cause.

And then, the unthinkable happened. Goldsmith resigned. At the time he refused to say why. It now turns out that, even this most loyal Bush believer didn't agree with what he saw as "the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror".

He now, it transpires, had difficulty with the Bush administration on the subject of both torture and illegal wiretapping.

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.

He has now produced a book, “The Terror Presidency,” which he has had to agree to give all the profits of which to charity, in order to see off the usual conservative attack dog response, "Well, he's got a book to sell hasn't he?"

Goldsmith argues that the Presidency would have been strengthened had Bush sought to reach out to the courts and to Congress for support, and states that by going it alone, Bush and Cheney have actually harmed the notion of executive power more than they have enhanced it.

“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.”

He tells of the "War Council" that would meet in Gonzales' office and what they regarded as their greatest obstacles:

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.

In words the FISA law was the thing they considered the greatest challenge and obstacle facing the US after 9-11.

When Goldsmith was then hired to replace Bybee at the Office of Legal Counsel he received a 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. "

Goldsmith ruled that although the Third Geneva Conventions did not apply to Al Qaeda and the Taliban, the Fourth Geneva Conventions certainly did apply to them as civilians.

On receipt of this news Goldsmith says that Addington went crazy stating, “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.”

It really is an interesting notion that individual lawyers, even the ones whose duty it is to advise the President, are considered to have no right to question whether or not a presidential decision is legal or illegal once Bush has decided himself on it's legality.

He then reveals why he had to resign:

He became concerned about the legality of the "torture memos" written in August 2002 and in March 2003 by his friend John Yoo. The August 2002 memo 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.”

The March 2003 memo remains secret as it deals with interrogation of suspects held s ecretly overseas.

He overturned the 2003 memo's legal opinion and then set about overturning the August 2002 memo's legal opinion which he found to be an “extremely broad and unnecessary analysis of the president’s commander in chief power”. The August memo concluded rather boldly 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 thought that the implementation of this would call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996.

When Goldsmith decided that he had to withdraw the August 2002 memo, he expected heat from the White House, since the August 2002 memo provided the legal foundation for the C.I.A.’s interrogation program.

So when he withdrew the 2002 memo, he also offered his resignation.

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.”

So now we, at last, know why Goldsmith resigned. He resigned in order to ensure that the Bush administration accepted his legal opinion that were acting outside of accepted international law, a point that apparently even Gonzales accepted:

Goldsmith recalls that Gonzales, in his own farewell chat with him, said, “I guess those opinions really were as bad as you said.”

Those were the same opinions that the Bush administration were relying upon to justify the acts they were engaging in. Even Gonzales says, “I guess those opinions really were as bad as you said.”

How easily they concede that which they once fervently defended.

One interesting aside on the subject of wiretapping and Addington's hatred of FISA. Goldsmith describes the way the Bush White House treat FISA:

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.

And what does Addington see as the way to get rid of this terrible law that ties the hands of the great leader?

“We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.

Yes, you read that right. Addington will be relieved the day terrorists blow up more American citizens, because then he can dispense with "that obnoxious [FISA] court".

Some people have commented on here that, as we don't know what these people are actually doing regarding FISA and wiretapping, then further discussion is fruitless and bound to be split along partisan lines.

The description of what Bush and his cohorts are actually doing was enough to make one Republican partisan hand in his resignation in order to end the illegality. And when Addington starts wishing for Americans to be blown up in order to free the administration from the overview of a court that they have, anyway, been ignoring; then it's high time to stop giving these guys the benefit of the doubt.

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