A new niche has been carved in the cathedral of opposition to President Bush’s “war on terror,” and it is enshrining an unlikely saint -- a conservative law professor who believes that the U.S. Supreme Court departed from precedent when it ruled that it had the right to “scrutinize the legality of the government’s actions on Guantanamo.”
I’m referring to Harvard’s Jack Goldsmith, the former head of the office of legal counsel, or OLC, in the Justice Department, whose fascinating memoir, “The Terror Presidency,” is the latest Bible for Bush-bashers who believe that the president has shredded civil liberties on the pretext of preventing another 9/11.
But there is less to Goldsmith’s dissent than you might think. Goldsmith does fault former Justice Department lawyer John Yoo, now a law professor at Berkeley, for asserting in a 2002 OLC opinion that “any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s vesting of the commander-in-chief authority in the president.”
This is the infamous “torture memo” issued under the name of Jay Bybee, Goldsmith’s predecessor at the OLC. A dramatic moment in “The Terror Presidency” comes when Goldsmith decides that he must rescind the memo, which is best known for its narrow description of physical torture as pain accompanying “serious physical injury, such as death or organ failure.”
That isn’t the only place in the book where Goldsmith earns his canonization by critics of the “war on terror.” In discussing Bush’s end run around Congress with the so-called Terrorist Surveillance Program of electronic eavesdropping, Goldsmith offers a damning quotation from David Addington, Vice President Dick Cheney’s consigliere. Referring to the judicial oversight created by the Foreign Intelligence Services Act, Addington crowed: “We’re one bomb away from getting rid of that court.”
Goldsmith is a compelling witness for the proposition that Bush, Cheney and their “war council” were executive-power freaks. But in several ways he parts company with those who see Bush as an authoritarian for whom 9/11 enabled a natural tendency to exalt security over liberty. If the administration cut corners, Goldsmith says, it wasn’t because of “idiosyncratic Bush and Cheney marching orders.” Rather, such policies flowed from the same sort of anxiety for public safety that moved Franklin D. Roosevelt to approve the internment of Japanese Americans during World War II.
Critical as he is, Goldsmith convicts his former colleagues of a lesser offense than authoritarianism: a counterproductive failure to cross the constitutional Ts and dot the political I’s.
In 2004, for example, after the Supreme Court announced that it would review procedures at Guantanamo Bay, Goldsmith asked: “Why don’t we just go to Congress and get it to sign off on the whole detention program?” Addington demurred, asking Goldsmith: “Why are you trying to give away the president’s power?”
Eventually the court did assert jurisdiction over Guantanamo. But wait: Bush then belatedly followed Goldsmith’s advice and won Congress’ approval of two bills -- the Detainee Treatment Act and the Military Commissions Act -- that gave the administration most of the leeway it wanted, including provisions preventing detainees from petitioning for a writ of habeas corpus. (On Wednesday the Senate fell four votes short of restoring habeas protection.)
Similarly, a Democratic-controlled Congress recently agreed to loosen constraints on the National Security Agency, a development Goldsmith welcomes as proof that “when the president forces Congress to stand up, be counted and assume responsibility, he can get a lot of what he thinks he needs for national security.”
It is also what Goldsmith thinks the president needs. Earlier in the book, he writes: “It seemed crazy to require the commander in chief and his subordinates to get a judge’s permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail and $10 cellphones.”
Last weekend, I attended a panel discussion at the William & Mary Law School titled: “Executive Power and the War on Terror.” One of the panelists was John Yoo, who was unapologetic about his theories on presidential power and his skepticism about the propriety of the courts supervising the conduct of any war. Yoo also took satisfaction in the fact that Congress, when given a say on Guantanamo, took a narrower view of detainees’ rights than did the Supreme Court. On that he and “St. Jack” seem to agree.