Law on TerrorLos Angeles Daily Journal, Feb. 1, 2008, at 6.A few days after Sept. 11, Vice President Dick Cheney appeared on NBC’s “Meet the Press” with Tim Russert and informed the public that the rules had changed; that we had to work on “‘the dark side’… We’ve got to spend time in the shadows in the intelligence world…. [I]f we are going to be successful… it’s going to be vital for us to use any means at our disposal.” It came to be that “any means” included torture.
In his book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” Jack Goldsmith, former assistant attorney general in charge of the Office of Legal Counsel, chronicles the events following that horrible day and his role in it.
Shortly after Sept. 11, it became apparent to the administration that its war on terror had to be placed on a firm legal footing. By happy coincidence, John Yoo – the Jack Bauer of jurisprudence – was sitting in the Office of Legal Counsel on Sept. 11. According to Goldsmith, the Berkeley law professor was a “prominent academic who possessed at the tip of his confident pen all of the crucial precedents” dealing with presidential powers during war. “He believed that when the Constitution vested ‘the executive power’ in the president, it gave him all of the military powers possessed by the king of England save those expressly given to Congress.”
Therefore, he turned out to be the perfect person to give our intelligence community the needed cover to operate on “the dark side.” Office of Legal Counsel opinions, after all, give “counterterrorism officials the comfort of knowing that they could not easily be prosecuted later for the approved actions.” This was especially true in the political atmosphere that existed. Goldsmith himself “witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls.”
Additionally, the “[i]ntelligence community was disinclined to take risks because of what a 1996 Council of Foreign Relations study decried as ‘retroactive discipline’ – ‘the idea that no matter how much political and legal support an intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment.’” This had a “chilling effect on CIA lawyers, and thus on the agency itself.” Goldsmith also notes that contrary to the fact that “[m]any people think that the Bush administration has been indifferent to wartime legal constraints….the opposite are true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death.”
I have no doubt that underlying these events were also a Bush/Cheney desire to return presidential powers to their pre-Watergate might. But this desire was not limited to the Bush administration. Clinton’s Office of Legal Counsel also wrote opinions arguing the “president could disregard congressional statutes that impinged on the commander in chief or related presidential powers. Also, it signed off on the CIA’s original rendition program and it approved unilateral uses of presidential military force in Kosovo, Bosnia, and Haiti.” The latter marked the “first time in our history that a president waged war in the face of direct congressional refusal to authorize the war. … It also marked the first and only time that a president exceeded the limitations on the 1973 War Powers Act.”
Goldsmith does a good job of putting the events leading to the release of the so-called torture memos, Abu Ghraib scandal, and the NSA wiretapping program in perspective. Attorney General John Ashcroft’s directive from the president was not to try his best to stop the next attack. “He was telling him to stop the next attack, period -- whatever it takes.” And it was up to people like Yoo to implement those orders. It should be noted, and Goldsmith does so toward the end of the book, that the president succeeded in stopping the next attack. “Whatever one thinks about the means he has employed and the mistakes he has made, this is an accomplishment that seemed impossible on September 12, 2001.”
Goldsmith also reminds us that today, Abraham Lincoln and Franklin Roosevelt are seen as great wartime presidents. “We tend to forget about their mistakes and excesses, for which they were roundly criticized as incompetents and dictators in their day.” (Lincoln suspended the writ of habeas corpus, while Roosevelt interned Japanese-Americans.) “Historians might come to think of the interrogation controversies … as deeply regrettable, but relatively unimportant episodes in the larger arc of the war.”
Of course, Goldsmith’s book is not all praise of Yoo and the administration’s overreaching. To the contrary, Goldsmith is highly critical of Yoo. Nevertheless, the tenor of his book is surprising. He is humble enough to point out that he came out of the Office of Legal Counsel knowing that the political atmosphere was quite different right after Sept. 11, when Yoo was there, and two years later when he took over in October 2003 (For Yoo’s version of the events and the political climate in which he was operating in, I recommend his book, “War by Other Means”).
“The Terror Presidency” is worth reading not only because of the events surrounding our war on terror, but also as a good lesson about the Office of Legal Counsel, one of the most powerful offices in government, and one that not too many people, including lawyers, know much about.
