Former Assistant Attorney General Jack Goldsmith was a Bush Administration insider, with a stack of conservative credentials. As Glenn Greenwald notes, Goldsmith is “no hero.” He “is a hard-core right-wing ideologue who continues to support many of the administration’s most radical positions, including his view that Common Article 3 of the Geneva Conventions does not apply to terrorist suspects (the position rejected by Hamdan).”
But with the publication of his new book, we’re able to get some new insights into what Goldsmith saw, and it appears that even this staunch conxservative was disapproving of the White House’s tactics.
Exhibit A is FISA. Like others in the Bush White House, Goldsmith was concerned that the FISA law would prevent wiretaps on international calls involving terrorists….
But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls [David] Addington [Cheney’s legal counsel] telling him in February 2004.
Their debate over the Geneva Conventions was even more striking.
When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)
Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded.
Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”
So even in the White House, the rule of law got shoved in the backseat, and fear of the terrorists took control.
Exhibit B. The infamous showdown in Ashcroft’s hospital room:
As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.
Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”
But I love this part….
After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”
Exhibit C — the White House’s approach to law-breaking:
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. Goldsmith’s first experienced this extraordinary concealment, or “strict compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.
It’s not surprising that Goldsmith was unable to bear the Bush Administration longer than he did.
Why did Dick Cheney’s lawyer David Addington get so upset over rescinding this or that Office of Legal Counsel memorandum? The purpose of the OLC’s review process is to collect legal guidance about courses of prospective policies an administration might want to pursue. Under the Bush administration, however, OLC review became a waiver of immunity for breaking the law. From Jeff Rosen’s profile of Jack Goldsmith:[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.
Recall that after the news of the August 1, 2002 OLC torture memo broke, then-AG John Ashcroft testified to the Senate that “There is no presidential order immunizing torture.” Maybe not from the president. But according to Goldsmith’s account, immunization from prosecution is the elephant in the room when administration lawyers discussed in 2002 what CIA interrogators could lawfully do to al-Qaeda and Taliban detainees.