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A legal conservative’s critique on Bush

Times Staff Writer

On the long shelf of books written from inside President George W. Bush’s administration, none is more fundamentally significant, nor as challenging to the preconceptions of left and right, as Jack Goldsmith’s “The Terror Presidency: Law and Judgment Inside the Bush Administration.”

Goldsmith, now a law professor at Harvard University, is one of those rare legal scholars who write with unforced clarity. He is also a committed philosophical conservative in the American tradition, deferential to precedent and custom, reverential toward democratic institutions as expressed in the Constitution and deeply learned in the history of presidential power exercised in the face of wartime exigencies.

That such a man could survive only eight months inside the Bush administration is the most severe indictment of this government’s conduct yet leveled.

Goldsmith, then on leave from the University of Chicago law school, was serving as legal advisor to the Defense Department in October 2003 when he was asked to head the Justice Department’s Office of Legal Counsel, which advises the White House on the legality of the president’s proposed actions. Goldsmith was a surprise choice for the post, and his name surfaced only after conservative legal scholar John Yoo’s nomination was vetoed by then-Atty. Gen. John Ashcroft, who distrusted Yoo as too close to the White House and, particularly, to Vice President Dick Cheney’s staff.

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At the time of his own nomination, the administration’s inner circle knew little of Goldsmith beyond that he was a conservative -- often linked mistakenly in scholarly publications with his then-friend Yoo.

There were, however, significant differences in their legal analysis of presidential wartime powers, an issue that preoccupies this administration. Yoo believes the chief executive’s wartime powers derive from a so-called “unitary theory” of executive powers and are inherent in the office. There are no serious scholars of the Founders and their era who share Yoo’s views on this issue.

Goldsmith, by contrast, has long been concerned -- from a conservative perspective -- with the potential infringements of international agreements on American popular sovereignty. He also has read and reflected deeply on the wartime presidencies of Abraham Lincoln and Franklin D. Roosevelt. While readers may differ from the conclusions he draws concerning those presidents and their wartime conduct, his arguments are clear, formidable and authoritative.

All of this quickly made Goldsmith anathema inside the Bush White House. By the time he resigned as head of the Office of Legal Counsel, he had withdrawn more legal opinions rendered by his predecessors than all previous counsels combined. Among those were Yoo’s now-infamous memos justifying the use of torture to interrogate suspected terrorists. As Goldsmith writes, he came to believe those opinions rested on legal foundations “sloppily reasoned, overboard, and incautious in asserting extraordinary constitutional authorities on behalf of the president.”

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One of several crucial areas illuminated by this book is the role the Bush administration and, particularly, Cheney have found for a relatively small cadre of zealots, who have acted as enablers for an unprecedented expansion of presidential powers that has been characterized as conservative but is in fact authoritarian. Yoo, of course, is one of these, and so too is Cheney’s former legal counsel, now chief of staff, David Addington.

When Goldsmith went to the White House to deliver his first opinion as head of the Office of Legal Counsel, he argued that the Fourth Geneva Convention, which governs the conduct of occupying powers, did in fact cover the U.S. treatment of Iraqi insurgents. Addington exploded, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.”

On another occasion, in spring 2004, Goldsmith was asked to evaluate an “important counterterrorism initiative.” When he told the White House that “the Justice Department could not support the initiative’s legality,” Addington reacted “in disgust,” snapping, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.”

Still, in his entirely measured way, Goldsmith muses that “Addington was. . . not on entirely thin ice in thinking that President Bush, like Franklin Roosevelt and Abraham Lincoln, had the power under the Constitution to do what was necessary to save the country in an emergency. But Addington took this idea further than Roosevelt and Lincoln” in his categorical assertion that Congress never need be consulted by the executive:

“Lincoln claimed and exercised similar emergency powers, but he too was sensitive to Congress’ prerogatives and constitutional propriety. He invoked the emergency power to exercise powers reserved for Congress. But he did so only until Congress could meet in session and, at Lincoln’s invitation, either ratify or reject his actions.

“Addington had no such instincts. To the contrary, long before 9/11 he and his boss had set out to reverse what they saw as Congress’ illegitimate decades-long intrusions on ‘unitary’ executive power. . . . This underlying commitment to expanding presidential power distinguishes the Bush Administration from the Lincoln and Roosevelt administrations. . . . Vice President Cheney and David Addington -- and through their influence, President Bush and Alberto Gonzales --. . . shared a commitment to expanding presidential power that they had long been anxious to implement.”

Goldsmith concludes that Bush’s “accomplishments will likely always be dimmed by our knowledge of his administration’s strange and unattractive views of presidential power. The American people know better today than during the Civil War and World War II that Lincoln and Roosevelt, in [Arthur] Schlesinger’s words, regarded ‘executive aggrandizement as but a means to a great end, the survival of liberty and law, of government by, for, and of the people,’ and that ‘they used emergency power, on the whole, with discrimination and restraint. . . .’ We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln’s and Roosevelt’s tenets of democratic leadership in crisis.”

The rhetorical impulse is to end on that quote, congenial as it is to the reviewer’s own opinions on the matter. Goldsmith’s entire approach to these vital questions, however, is a rebuke to the narrowly ideological or merely rhetorical impulse and all the props of zealotry that have become central to our politics.

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“The Terror Presidency” is an important book -- and a genuine service to the national interest -- on several levels, none more pressing than its implicit demand for a sober consideration of the current historical moment in all its complexity. As Goldsmith said in a recent interview:

“Usually the restrictions on liberties during wartime are temporary. The fight against al Qaeda and its affiliates may last a long time. As a country we need to figure out a way to give the presidency the extraordinary authorities it needs to keep us safe, while at the same time minimizing unnecessary intrusion on our liberties. That is, of course, easier said than done.”

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timothy.rutten@latimes.com

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The Terror Presidency

Law and Judgment Inside the Bush Administration

Jack Goldsmith

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W.W. Norton: 256 pp., $25.95


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