Jack Goldsmith | The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton: 2009)
by Isha Mehmood, a law student at New York University School of Law
Jack Goldsmith’s book, The Terror Presidency, is an insightful look into the circumstances that shaped some of the Bush administration’s most important national security policies after September 11th. Following Goldsmith’s time as head of the Office of Legal Counsel, the book provides an insider perspective on the administration’s responses to what Goldsmith terms the “twin pressures” – the fear of not doing enough to stop the next terrorist attack and the fear of doing too much and ending up before a court or grand jury. Goldsmith’s book is a portrait of the controversial legal and policy decisions made during the Bush administration and the dangers of undefined presidential power.
In October 2003, President Bush appointed Goldsmith, a self-described “conservative intellectual” as Assistant Attorney General of the OLC. The appointment was in some respects an improbable choice – a legal scholar, Goldsmith lacked the political credentials typical for the position. He had taken a leave of absence from the University of Chicago to join the Department of Defense, but with plans to return to academia shortly after. Yet in his brief time in government, Goldsmith had already made a name for himself for his views on international law and his work on a range of post-9/11 legal issues. As a result, when Jay Bybee resigned from his position as Assistant Attorney General of the OLC, Goldsmith was considered a fitting candidate for his replacement.
As chief advisor to the President and Attorney General on the legality of presidential actions, the OLC was uniquely positioned to influence the Bush administration’s national security policy. But as Goldsmith describes, his predecessors at the OLC had spent more of their time finding legal arguments that supported the President’s agenda than providing reasoned analyses on whether the government’s actions were lawful. Shortly after his appointment, Goldsmith recalls being briefed on some of the government’s most sensitive counterterrorism operations. As he reviewed the legal opinions that the OLC had written to support its actions, Goldsmith writes that he was astonished to find that many of its arguments rested on “severely damaged legal foundations” that were “sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.” Unsure that he would be able to stand by these opinions as head of the OLC, Goldsmith undertook to amend what he saw as errors in the department’s legal reasoning and to save the policies that, in his view, a “sound legal analysis” would support.
Goldsmith’s position pitted him against many of his superiors and senior administration officials. The first of many confrontations occurred only a week after he was sworn in. After concluding that the Fourth Geneva Convention (which governs the duties of an occupying power and treatment of civilians) affords protections to all Iraqis including members of Al Qaeda, Goldsmith recalls a mixed response from his colleagues. The President had previously determined that al Qaeda and Taliban detainees fell outside of the Third Geneva Convention, which governs prisoners of war. Goldsmith agreed with this decision, in part because members of both terrorist groups do not comply with the laws of war, but believed that the situation in Iraq was distinguishable. Attorney General John Ashcroft and White House Counsel Alberto Gonzales asked Goldsmith to walk through his analysis but did not push him hard on his conclusions. David Addington, legal counsel to the Vice President, became angry. “The President has already decided that terrorists do not receive Geneva Convention protections,” he barked. “You cannot question his decision.” But Goldsmith’s position would be accepted and define the legal limits of the administration’s national security efforts, demonstrating the OLC’s increasing role as a “frontline policymaker” in the war on terror.
Goldsmith’s book suggests an OLC that is independent of political considerations, despite “the unusual pressures on OLC, the office’s pro-President disposition, and the lack of real oversight” which may seem to belie the notion that the office can bind the President to the rule of law. During times of crisis, particularly wartime, presidential powers may need to be expanded in such a way as to address threats to national security and the OLC plays a critical role in doing so. According to Goldsmith, this perspective was not new: Clinton’s OLC had allowed him to disregard congressional statutes that limited his power, permitted controversial aspects of the CIA’s rendition program, and approved the President’s unilateral use of force despite congressional opposition. According to Goldsmith, the distinct pressures that the Bush administration felt in response to the September 11 attacks led to a particularly acute desire to define the legal limits of executive power in such a way as to permit the President to take the actions he deemed necessary to protect American lives.
At the time, the Bush administration was concerned with the possibility of another terrorist attack. Goldsmith argues that this contributed to an aggressive “go-it-alone” approach by the White House to combating terrorism. The role of the OLC became increasingly more important, as it provided what Goldsmith calls the “legal cover needed to overcome law-induced bureaucratic risk-aversion.” As a senior Justice Department prosecutor told Goldsmith, “It is practically impossible to prosecute someone who relied in good faith on an OLC opinion, even if the opinion turns out to be wrong.” In effect, this provided the OLC with the power to bestow an “advance pardon” on government officials for actions taken “at the edges of vague criminal laws.” This was a useful way to allow the administration to address real and continuing threats to national security, but Goldsmith found himself uncomfortable with the ambiguity that allowed the President to expand his power.
In particular, Goldsmith reviewed the administration’s controversial “torture memos” – an August 2002 OLC opinion that formed part of the legal basis for “alternative” interrogation techniques and a March 2003 OLC opinion that later became the “controlling authority” for a Defense Department report on interrogation. On the surface, Goldsmith writes, the opinions appeared thorough and scholarly. But as he delved more deeply into the OLC’s arguments, there were problems. The opinions defined torture too narrowly and expanded the President’s executive powers farther than any prior OLC opinion, stating that any effort by Congress to regulate the interrogation of detainees would violate the President’s authority as commander-in-chief. Further, Goldsmith writes, the opinions seemed to promote a particular view more than provide unbiased legal advice. After careful deliberation, he determined that the opinions were flawed, rested on cursory and one-sided legal arguments, and were overbroad. In an unprecedented action, Goldsmith decided that both opinions should be withdrawn. The OLC has a tradition of adhering to past opinions even when the head of office concludes that they are wrong; and although opinions had been overturned in the past, Goldsmith’s decision was the first time that it had been done within a single administration.
Through comparisons to Roosevelt and Lincoln’s presidencies, Goldsmith provides a historical analysis of presidential power during times of crisis. Both Roosevelt and Lincoln exploited the undefined limits of their power to prevent what they considered to be threats to national security. Yet, Goldsmith argues that the war on terror can be distinguished from World War II and the Civil War, where the stakes to the nation were more obvious. In his opinion, this war has “no draft, little mobilization, relatively few casualties, and no shortages, rationing or economic controls” making victories largely invisible and consisting mostly of capturing or killing individual terrorists. According to Goldsmith, this made the Bush administration resistant to consultations with Congress and government agencies, preferring to operate on “minimal deliberation, unilateral action, and legalistic defense.” However, as the United States continues to face a threat of terrorism, Goldsmith argues that it is increasingly important for the President and future administrations to embrace Lincoln’s and Roosevelt’s soft factors of legitimation – “consultation, deliberation, the appearance of deference, and credible expressions of public concern for constitutional and international values.”
Ultimately, Goldsmith resigned from his position after only nine months at the OLC. His book therefore is a brief but intimate look into some of the most important legal issues that took place during Bush’s presidency. Described as an administration “strangled by law” and “lawyered to death,” Goldsmith writes that the Bush administration paid attention to law not necessarily because it wanted but rather because it had no choice. In his opinion, it was fear that pushed the OLC to identify and exploit the edges of law and made “playing it safe no longer feasible.” Officials considered themselves, as did the public, personally responsible for preventing terrorist attacks, placing an immense amount of pressure on decision-makers. Defining the limits of the law and ensuring that the administration fell within those limits consequently became a priority. These anxieties pervaded the Bush administration on a daily basis, Goldsmith writes, recalling an incident where he told Gonzales and Addington that the OLC could not support a new counterterrorism initiative because of its illegality. Addington angrily responded, “If you rule that way, the blood of a hundred thousand people who die in the next attack will be on your hands.”
The Terror Presidency provides a close look into the role of law and presidential power during times of war. Goldsmith argues throughout the book that the Bush administration’s obsession with preventing another terrorist attack resulted in a dangerous expansion of the power of the Executive Branch. Although sympathetic to the unique challenges posed by the security threat of terrorism—a “lethal, hard to find enemy; growing public doubts about the reality of the threat because of the absence of new attacks; the need for preemptive action that invariably brings mistakes and recriminations; and a suspicions and constrictive legal culture”—Goldsmith is also critical of how the Bush administration made some of its decisions. Emphasizing the importance of democratic accountability, Goldsmith’s portrait of his time at the OLC provides special insights into executive power and constitutional traditions.
David Cole on Goldsmith’s The Terror Presidency
As an insider in the Bush administration, Goldsmith offers an invaluable perspective on the approach that the White House took in what it called the “war on terror.” Goldsmith shows that the White House, and in particular Vice President Dick Cheney and his chief lawyer, David Addington, pursued a strategy of unilateral executive power and opposed congressional involvement, often to the detriment of the administration’s legitimacy.
Jeremy Waldron on Goldsmith’s The Terror Presidency
This is much more an account of Goldsmith’s stint as head of the Office of Legal Counsel in the Justice Department from October 2003 until June 2004 than any general reflection on the rule of law in the war against terrorism. But as such it provides an intriguing depiction of politics and personalities in the years immediately following 9/11, particularly the author’s interactions with John Ashcroft, Alberto Gonzalez and the infamous David Addington (with whom Goldsmith clashed repeatedly during his tenure). The most riveting part of the book is Goldsmith’s account in Chapter 5 of his decision to withdraw the infamous “torture memos,” drafted mainly by John Yoo and issued as OLC opinions under Jay Bybee, Goldsmith’s predecessor in 2002-3. There are some reflective passages and they are valuable, but it is the insight into the politics of the OLC and its relation to the White House, the office of the Vice President, and the Department of Defense that is the real payoff for The Terror Presidency.
- Doug Bandow, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” Antiwar.com (February 2, 2008) Very positive
- Jeffrey Breinholt, “Jobs That Hurt: A Review of Jack Goldsmith’s ‘The Terror Presidency’,” Counterterrorism Blog (October 24, 2007) Mixed
- John Cieslewicz, “The Terror Presidency [Jack Goldsmith],” Blog.cieslewi.cz (May 4, 2008) Very positive (blurb)
- David Cole, “The Man Behind the Torture,” N.Y. Rev. Books (November 7, 2007) Mixed
- Stefan Fergus, “‘The Terror Presidency’, by Jack Goldsmith,” Pol. Reader (May 14, 2009) Very positive
- John E. Finn, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” 18 L. & Pol. Book Rev. 956 (2008) Somewhat critical
- Major Brian P. Gavula, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” 198 Mil. L. Rev. 210 (2008) Somewhat positive
- Michiko Kakutani, “Former Law Adviser Speaks Out on Bush,” N.Y. Times, (September 11, 2007) Somewhat positive
- Neal Katyal, “Counsel, Legal and Illegal,” Powell’s Books (November 8, 2007) Positive
- Douglas W. Kmiec, “Yoo’s Labour’s Lost: Jack Goldsmith’s Nine-Month Saga in the Office of Legal Counsel,” 31 Harv. J. L. & Pub Pol’y 795 (2008) Somewhat critical
- Lessig, “The Terror Presidency: Hard Questions for All of Us,” Lessig (November 12, 2007) Very positive
- Jules Lobel, “‘The Terror Presidency’ by Jack Goldsmith,” Pittsburghpost-gazette.com (December 9, 2007) Somewhat critical
- Steven Molinar, “The Terror Presidency: Law and Judgment Inside the Bush Administration, by Jack L. Goldsmith,” 46 Osgoode Hall L.J. 215 (2008) Somewhat positive
- NC Dem, “Jack Goldsmith ‘The Terror Presidency’: A Review,” Daily Kos (September 12, 2007) Somewhat positive
- Peter Raven-Hansen, “Terror Lawyers,” 102 Am. J. Int’l L. 672 (2008) Mixed
- Anis Shivani, “Just How New Is the Terror Paradigm?,” 62 Ga. Rev. 780 (2008). Somewhat critical
- Peter Spiro, “Jack Goldsmith’s The Terror Presidency,” Opinio Juris (September 18, 2007) Very positive
- Brian Steele, “Public Confidence and Executive Power: The Symbiosis,” 38 Presidential Stud. Q. 540 (2008) Somewhat positive
- Geoffrey R. Stone, “A Review of Jack Goldsmith’s The Terror Presidency,” Huffington Post (October 6, 2007) Very positive
- John Thompson, “Jack Goldsmith: The Terror Presidency, Law and Judgment Inside the Bush Administration,” 2 Freedom Center J. 55 (2010) Very positive
- Steve Vladeck, “Individual Rights and/in ‘The Terror Presidency’,” Prawfsblawg (September 24, 2007) Somewhat critical
- Ed Whelan, “Jack Goldsmith’s The Terror Presidency—Part 1,” Nat’l Rev. Online (September 6, 2007, 2:15 PM); Ed Whelan, “Jack Goldsmith’s The Terror Presidency—Part 2,” Nat’l Rev. Online (September 6, 2007, 3:59 PM); Ed Whelan, “Jack Goldsmith’s The Terror Presidency—Part 3,” Nat’l Rev. Online (September 6, 2007, 4:37 PM) Somewhat positive