Counsel, Legal and Illegal

by The New Republic | November 9, 2007

The Terror Presidency: Law and Judgment Inside the Bush Administration

By Jack L. Goldsmith

(W.W. Norton, 256 pp., $25.95)

Jack Goldsmith's book is quite possibly the first sober account of the pressures that a post-9/11 president faces in the attempt to respond under the rule of law to the security threats facing this country. The book is largely a memoir of Goldsmith's service as an assistant attorney general for the Office of Legal Counsel (OLC), and of his terrible predicament as he found himself in the midst of an extraordinary debate among administration officials about how best to respond to the threat of terrorism. While OLC operates in relative obscurity for most Americans, it is in fact a genuinely significant institution of American government: all thorny legal questions within the executive branch are supposed to be submitted to this tiny elite office. OLC is the "decider" of these questions, and its judgments bind the entire executive branch.

In the fulfillment of his duties at OLC, Goldsmith said no to the White House on various matters, including torture and electronic surveillance. As a result, he soon left his Justice Department position and decamped to Harvard Law School. Now he has written this remarkable book--a book that anyone concerned about civil liberties in the war on terror must read. Goldsmith is not a civil libertarian. And this is not a kiss-and-tell book. It is a serious book with a serious lesson: that the war on terror is here to stay and will continue to pose extraordinary challenges to our current legal framework. Those inclined to think that the next administration will instantly shut down mass detention centers such as Guantanamo, or promptly terminate massive electronic surveillance under the Patriot Act, are likely to be sorely disappointed, no matter who sits in the Oval Office.

In 2002, as a young law professor at the University of Chicago, Goldsmith co-wrote (with Curt Bradley) an important article arguing that President Bush's order of November 2001 establishing military tribunals to try suspected terrorists was perfectly legal. (I should disclose that Goldsmith's article was a critique of my own Senate testimony on this matter, in which I had argued that the president cannot create a trial system on his own and that congressional approval of these tribunals is necessary; and also that Goldsmith and I subsequently co-authored a New York Times piece on other matters in the war on terror.) Goldsmith analyzed in some detail the laws passed by Congress, concluding that "President Bush probably has independent constitutional authority to establish military commissions, and, in any event, clearly has statutory authority to do so." He also confidently concluded that detainees could not be protected by the Geneva Conventions because the president had determined that even the most minimal protections did not apply, and that "U.S. courts reviewing the validity of the commissions on habeas corpus are not likely to question these political branch characterizations."

Now, in The Terror Presidency, Goldsmith says that from his first days in government he "could not understand why the administration failed to work with a Congress controlled by its own party to put all of its antiterrorism policies on a sounder legal footing." He claims that if the administration "had earlier established a legislative regime of legal rights on Guantanamo Bay, it never would have had to live with the Supreme Court's holding on Common Article 3 of the Geneva Convention, or with the War Crimes Act. If the administration had simply followed the Geneva requirement to hold an informal 'competent tribunal' or had gone to Congress for support on its detention program in the summer of 2004, it probably would have avoided the more burdensome procedural and judicial requirements that became practically necessary under the pressure of subsequent judicial review." The result of "the unnecessary unilateralism of the Bush years" has been for Congress and the courts to harbor a deep "suspicion and mistrust" of the executive that will infect future presidents for years to come. Bush, Goldsmith now warns, "borrowed against the power of future presidencies."

What changed? How did the confident and brash Goldsmith of 2002 become the hand-wringing Goldsmith of 2007? It might be thought that Goldsmith's change of tune stemmed from his move from the more conservative University of Chicago to the more liberal Harvard Law School, or that he has been watching the courts and reacting to the fact that the Supreme Court struck down the president's military tribunals last year in Hamdan v. Rumsfeld. But none of these explanations is correct. Something else is at work.

Goldsmith's book reveals how a theoretical idea at the fringes of constitutional law morphed into a radical new philosophy of government. Many mainstream constitutional lawyers--myself included--support what is called the "unitary executive theory," which holds that the Founders vested the president with the full power of the executive. So, for example, we believe that Congress cannot interfere in the firing of executive branch officials. A key reason that we favor this theory is that it concentrates popular accountability in the president. The president is responsible for his choices, and cannot point the finger at a meddlesome Congress when his policies fail. The unitary executive theory, like many matters of law, is certainly debatable, but it has an eminent pedigree of supporters both left and right.

Goldsmith's book describes a disturbing exfoliation of this theory, and its subsequent career in government. He explains how a radical offshoot of this theory secretly became official White House policy. The aggrandized version of the theory of the unitary executive was this: that the president has a virtually unlimited and unsupervised ability to override laws of Congress that interfere with his duties as commander-in-chief. The most influential proponents of this version of the theory were John Yoo, a law professor from Berkeley, and Vice-President Cheney, who in this context is indistinguishable from his then-chief counsel (now chief of staff) David Addington. What this extreme notion of the unitary executive meant, in practice, was that Goldsmith's predecessors at the Justice Department wrote a series of classified opinions that asserted that the executive could legally ignore a variety of federal laws, including laws that prohibit torture and laws that prohibit many types of electronic eavesdropping on Americans without a special court order. Goldsmith's predecessor was a law professor named Jay Bybee, and Bybee evidently outsourced much of the work to his deputy Yoo. Sometimes, Goldsmith reveals, Yoo would simply provide legal opinions himself, under the authority of the attorney general, without informing his superiors, including Attorney General John Ashcroft, of his actions.

Goldsmith's book does not go into it, but it is important to note that Addington's and Yoo's activities did in fact betray the premise of the unitary executive theory. Since these opinions were issued in secret, popular accountability could not check the president. Instead, these opinions were essentially a license for the president and his administration to break the law without reprisal. These were cavalier advance pardons, and nobody was supposed to find out about them.

Goldsmith explains that Yoo's "secret yes, always" mentality ultimately cost him when Ashcroft, that now-rehabilitated civil libertarian, blocked him from succeeding Bybee. (Bybee was rewarded with a federal appellate judgeship.) Goldsmith was plucked from relative obscurity at the Pentagon to take over as the head of OLC. He looked good on paper: he had written those exuberant passages about military tribunals and had been a deep skeptic of international law as a constraint on federal power. And although he is too modest to say so in his book, Goldsmith is also one of the pre-eminent scholars of the law governing foreign affairs.

Within a matter of days, Goldsmith learned that he was expected to kowtow to the White House's legal demands. The first battle came with respect to the Fourth Geneva Convention, a treaty ratified by the United States a half-century ago to protect civilians during war. Goldsmith ruled that it applied to terrorists in Iraq, even if they were members of Al Qaeda. His deputy, Patrick Philbin, warned that the White House was "going to be really mad.... They're not going to understand our decision. They've never been told 'no.'" (Cheney would later block Philbin's promotion at the Justice Department because he dared to question the legality of the NSA eavesdropping program.) Battle after battle took place, with Goldsmith saying that the president was not at liberty to do this or that and the White House disagreeing. At one point Addington warned Goldsmith that "if you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands." All of this made Goldsmith, an honest and learned man who did not like to see the Constitution traduced by ideology or power, more than despondent, and eventually he left the Department of Justice.

Goldsmith's book is a reflective look at these deeply troubling episodes. At its best, the book deftly advances two central claims: that the law governing presidential action has markedly shifted in recent years to constrain the president and his advisers; and that the president faces vast pressures to push the law to its limit because of the fear of another attack, particularly since he will be the focus of blame should an attack take place. About both of these matters he is persuasive, and it is one of the strengths of Goldsmith's book that even as it dissents from the Bush administration's understandings of the Constitution and national security, it takes the threat to American security very seriously.

Sometimes, though, the book veers into a rather strained attempt to defend the administration, perhaps out of a sense of loyalty. In a passage that some are citing as proof that the administration has acted with fidelity to the law, Goldsmith argues: "Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death. The administration has paid attention to law not necessarily because it wanted to, but rather because it had no choice." But to say this is to say nothing at all. No one doubts that the administration "paid attention" to legal constraints--they hired lawyers such as Yoo to "pay attention" to these constraints by finding ways around them. Paying attention to law so as to loophole it is not much of a defense of the administration. It is ironic that many who pick up Goldsmith's book on the basis of its title will no doubt assume that the book is about how the president has created terror, instead of about his response to it. But since the administration departed from longstanding traditions and embraced instead a radical constitutional agenda of its own, such a view of what is described in Goldsmith's book is, in significant ways, correct.

Reading Goldsmith's account of his experience of an academic theory applied to public policy in a time of crisis, one comes away with some rueful thoughts about the larger question of the relationship between the legal academy and the practice of law. The various events depicted in Goldsmith's book were set in motion by a wild notion dreamed up in America's law schools. Yoo's unitary-executive-on-steroids idea was not the first crazy theory to emerge from the legal academy; but it is likely the first to have achieved a secret stranglehold on the levers of government.

Law professors at elite universities today are predominantly theoreticians, paid to come up with large and original ideas. In the real world, if you came up with an idea like the John Yoo version of the unitary executive theory, you would get laughed out of town, because such a theory does not comply with the traditions and the values of this country. But in the legal academy, you get tenure. This trend in the modern law school, where practice has been subordinated to theory, has several consequences, but the most important one is that law professors can get sold on a theory with little understanding of how its implementation would work and what it would actually mean. There is little or no field-testing of these theories: legal scholars are rewarded mainly for cleverness and originality. The phenomenon is exacerbated by the fact that many top law schools are increasingly hiring faculty with no significant experience in legal or government practice.

It is not entirely surprising, therefore, that the practicing lawyers at the Justice Department and elsewhere were cut out of the discussions when Yoo was implementing his theories. This story has been documented elsewhere, most powerfully by Tim Golden in The New York Times. But Goldsmith offers some new details, including the fact that Yoo was part of a "secretive five-person group" that styled itself the "War Council"--a council that would make legal decisions, even to the point of excluding interagency views. Such secretive groups are often sold as ways to make sure classified information is not divulged; but in many instances such a justification is patently unbelievable. Can anyone really believe that it would be a security risk to have let National Security Adviser Condoleezza Rice and Secretary of State Colin Powell know that the president was going to sign an executive order setting up military tribunals? Or that, as Goldsmith has recently revealed, the number-two official at the Justice Department, James Comey, could not be told about the NSA program when many private telecom executives already knew about it? What was really going on was that a tiny cabal wanted to impose its will by fiat and sought to preclude any internal criticism or debate. And such a course of action is particularly tempting for a law professor who dwells in the hothouse world of theory.

When it comes to government policy, theoretical purity cannot be the only basis on which the government should act. It must be a central test of a theory's validity whether it comports with the values and the practices of the nation. Practitioners, as that term implies, often have sensible instincts on such questions. They often know why something has been done a certain way in the past, and they may appreciate the ways in which a new theory can destabilize or destroy other legal positions or programs. When a hot new theory such as the radical version of the unitary executive theory was proposed, its open vetting by a diverse group of practitioners drawn from the government should have been required for the theory to be taken seriously.

But Yoo did not do that; and Goldsmith, newly on the job, started to vet legal positions with lawyers across the federal bureaucracy. He found serious problems with a "short stack" of Yoo's opinions, and began a process to roll them back and to seek interagency views. Goldsmith's aforementioned opinion on the Fourth Geneva Convention, for example, was shared by a "consensus" of lawyers from "the State Department, Defense Department, CIA, and the National Security Council"; but not by David Addington, nor, it appears, by then-White House Counsel Alberto Gonzales. It is really quite remarkable--and it may count as a tribute to his legal acumen or his bureaucratic skill--that Goldsmith's view prevailed.

But alas, much of Goldsmith's handiwork would soon be undone. After his departure, his more pliant successor, Steven Bradbury, gave the administration what it wanted. According to a recent New York Times story that could easily serve as an epilogue to Goldsmith's book, the administration put Bradbury on a probationary period as acting head of OLC, refusing formally to nominate him until they had seen how he would rule in his acting capacity on a variety of issues. Bradbury evidently resurrected much of Yoo's legacy, finding that none of the CIA's "enhanced interrogation techniques" violated the law. Comey, the second-highest official at the Justice Department at the time, reportedly told colleagues that they would be "ashamed" if the opinion ever came to light. Comey was overruled by Gonzales, and he left the department soon thereafter. The outcome was finally that one way or another the Department of Justice had been purged of its leading dissenters. The post-Goldsmith era, which looks strikingly similar to the pre-Goldsmith era, had begun.

This brings us to another valuable and insufficiently explored lesson of Goldsmith's book: the power of internal checks and balances. Our Founders devised a government premised on the idea that, as Madison wrote in The Federalist, "the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.... Ambition must be made to counteract ambition." But this idea seems hopelessly outdated. Madison's words presume three branches with equivalent ambitions of maximizing their powers--but abdication instead of ambition has characterized Congress's action in the war on terror. Nor have the courts been much better. While there have been some notable rebukes to the president, they have taken years and have forced the courts into the difficult position of adjudicating national security disputes where their institutional competence is not at its height.

On this score, Goldsmith's keen observations about the workings of government in a time of danger add up to a powerful implicit recommendation. What his book unwittingly demonstrates is the need to re-orient the American government so as to bring the "separation of powers" into the executive branch itself. Precisely because Congress and the courts are not able or not willing to exercise their functions sufficiently, internal executive checks and balances become more important. Goldsmith shows how the existing checks within the executive branch sometimes resulted in a significant policy decision in favor of treaty compliance and individual liberty, such as his ruling on the Fourth Geneva Convention. The policy question in the wake of The Terror Presidency should be: how do we encourage the development of internal checks such as these? Goldsmith, remember, was practically run out of town.

Begin by recalling Goldsmith's stories about the clash between the State Department and the Defense Department. Since State and Defense have overlapping jurisdiction, rivalries emerge and different perspectives are brought to bear on a problem. Bureaucratic rivalry, far from being something to be squelched by the White House, is something to be encouraged. Franklin Roosevelt, whom Goldsmith exalts but does not discuss with respect to this issue, was a connoisseur of this strategy. As Arthur Schlesinger Jr. observed, "His favorite technique was to keep grants of authority incomplete, jurisdictions uncertain, charters overlapping." The result was better policy, as the inevitable differences of opinion and policy clashes produced a more informed result. When bureaucratic friction is bypassed by a White House bent on imposing an ideologically satisfying solution, bad policy inexorably results.

Bureaucratic rivalry is only one piece of this problem. If talented people such as Philbin have to worry about their job every time they give advice that the White House does not want to hear, less straight talk will emerge. The White House repeatedly justifies its claims of executive privilege with the notion that if Congress is privy to private deliberations, lesscandid discussions will result--so it is particularly ironic that the administration has resorted to career reprisals that have an even more chilling effect, inhibiting candor far more effectively than the rare possibility that executive secrecy will be violated down the road. The fear of reprisals is a particular problem for those unlike Philbin (now a successful lawyer in private practice) who plan on remaining in government for the entirety of their careers. So, in order to develop the full regimen of internal checks, a vibrant civil service is necessary. That, at present, is hard to accomplish: unlike in France, where many top graduates join the civil service, in the United States a career in government is often viewed as a refuge for the mediocre.

But there are a variety of ways to create a dynamic civil service, perhaps by patterning some of it on the successes of the foreign service. Compared to its civilian counterpart, the foreign service does a pretty good job of providing for career advancement without the corruptions of political patronage. Its "up or out" promotion system forces turnover, while its job-rotation requirements help to ensure freshness. Perhaps most innovatively, the State Department maintains a "Dissent Channel" that permits an employee anywhere on the globe to question the actions of the department on a policy level. Rather than suffering retaliation, individuals who use the channel are at times promoted. While there are of course problems with the Foreign Service, these mechanisms help to ensure a group of trained and knowledgeable employees who possess the energy to do their jobs and are better situated to voice their opinions when they are disagreeing with political appointees.

But developing a better civil service will only go so far. When rival agencies disagree, there needs to be a neutral decision-maker--a "decider." The Office of Legal Counsel, as Goldsmith's book suggests, can hardly be that entity. OLC has two roles--adviser to the president and adjudicator of legal issues-- and these turn out to be in fundamental tension with one another. No one wants an adviser who has ruled against him as an adjudicator. The result is an OLC that is too tempted to tell the president what he wants to hear and an OLC that is employed by the White House to squelch a reluctant bureaucracy:

A White House confident about what it wanted to do also used lawyers, and especially legal opinions by OLC lawyers, as a sword to silence or discipline a recalcitrant bureaucracy. Many people in the government were nervous or upset about implementing the President's post 9/11 counterterrorism policies: military lawyers objected to military commissions, which departed from well- settled ways of conducting modern military trials; so too did some Justice Department prosecutors, who preferred the civilian trial system where they were in charge; the State Department objected to parts of the [Guantanamo] detention program; and some in the CIA were reportedly anxious about the special interrogation program for high-value detainees.

The only way that OLC can have the legitimacy to act as a "mini-court" within the executive branch is when it exercises independent judgment and brings its institutional expertise to bear on resolving legal disputes. But Goldsmith's book documents how OLC functioned as an advocate--to the point where Goldsmith criticizes the torture memo produced by his friend Yoo as a "one-sided effort to eliminate any hurdles posed by the torture law" characterized by an "unusual lack of care and sobriety," and reports that a senior government lawyer called the memo "a bad defense counsel's brief." The torture memo debacle underscores that without OLC's impartiality and independence, the system breaks down. The decisions of the office begin to look suspect, resembling a third-world courtroom flush with political influence rather than law.

And yet the political pressure on OLC officials is unavoidably immense. Its lawyers--the head of the office and all its deputies--are political appointees themselves. They are expected to advise the president rather than merely to adjudicate disputes, and they are regularly present at White House meetings. In this climate, there is simply no way that OLC's institutional aspiration to act as a neutral decision-maker can play out in practice the way one would hope. Simply put, the Office of Legal Counsel is an in-house law firm with a single client to serve.

For these reasons, Congress should consider a drastic overhaul of OLC--one that strips it of its role as a "mini-court" and permits it only to function as an adviser to the government. The adjudication function should be transferred to a separate official--say, a director of adjudication--who would resolve inter-agency disputes and straddle presidential terms. Goldsmith's book shows that the current OLC cannot withstand the conflict in its dual roles, and so one of its roles needs to be split off. Otherwise many presidents will be too tempted to appoint John Yoos of their own; and if somehow a Jack Goldsmith-type figure is named to the office, he will almost certainly not last long there.

Generally speaking, the most urgent task in the wake of the legal and constitutional mess that will be a part of George Bush's "legacy" is to think seriously about how the separation of powers can become laced into the executive branch itself, rather than hoping that it will rematerialize in Congress and the courts. Each of those players has limitations: the former owing to the rise of the party system, the latter owing to well-designed institutional limits on its jurisdiction and its mandate in a republican democracy. As Goldsmith points out, the fear of another attack coupled with the reality that the president is going to get blamed for it places a spectacular pressure on the president to push the law to its limit. Owing to the obvious need for secrecy, quick action, and competence in these specialized areas, internal checks are necessary to replace the withering external ones. The trend toward executive branch power threatens our Founders' conception of divided government. By building upon practices that are subtle aspects of our contemporary constitutional landscape--such as bureaucratic overlap, civil- service protections, and internal adjudication--some of the harms from this trend can be resisted and our Founders' design adapted to an age that demands a strong executive.

In a way, Goldsmith's book is about the importance of architecture to government. Both physical architecture (whose office is near whose) and institutional architecture (how the various federal agencies are designed) play crucial roles in Goldsmith's account of the war on terror. He begins his book by describing the complaints of many former Justice Department officials when the OLC offices were relocated far down the hall from the attorney general's office, lamenting that "a Republican Attorney General [gave] the space to a political consultant with no law degree, something the former OLC officials interpreted as evidence that OLC's 'glory days' were over and, more ominously, as a sign that law in the Department of Justice had taken a backseat to politics."

For those who grew up on too many West Wing episodes, such complaints will be viewed as the whining of folks who use geographic proximity as a way to measure their success and their ego. But Goldsmith suggests something deeper: that physical location dramatically effects the exchange of ideas, which is to say, who talks to whom. By placing divisions with different perspectives near one another, a better process and a better policy can result.

And Goldsmith's book provoked in me also a very different consideration about architecture. This one, a more grim matter, concerns the physical location of America's detention facilities. For a long time now I have reflected on how my visits to Guantanamo fundamentally changed the way I thought about the Hamdan case. It was very hard to understand the stakes--human, moral, legal--until I actually saw Hamdan himself and the conditions in the camp. Far from being an abstract issue for a law professor, going there taught me that the issues in his case were devastatingly concrete--about the core of personhood and individual dignity. One reason why Guantanamo was chosen as the site of the camp, I think, is that it is very difficult for ordinary Americans and the media to see it or visit it. It is easy to swallow a government story about the people at Guantanamo being the "worst of the worst" if you cannot yourself behold them.

Goldsmith tells a different story, but with the same point, about going to the brig in Norfolk, Virginia, to see another enemy combatant, Yassir Hamdi, on a closed-circuit television:

Witnessing the unmoving Hamdi on that fuzzy black-and-white screen, however, moved me. Something seemed wrong. It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. "This is what habeas corpus is for," I thought to myself, somewhat embarrassed at the squishy sentiment.

I do not mean to embrace the trendy talk about alterity, but there is no doubt that when detainees are kept geographically distant, with no media images except the rare photo of the rough and haggard Khalid Sheikh Mohammed, it becomes easier to regard these individuals as something less than human. Goldsmith and I traveled to see different detainees, and with opposite goals in mind; but both of us came away with the same reaction. Perhaps security reasons compel detainees to be kept far out of public sight. Still, we should be aware of the costs of such a policy. It has the effect of making us more manipulable, and less able to appreciate that these Others are, after all, human beings.

Goldsmith concludes his book by remarking that the "permanent emergency" of terrorism is upon us, and that future presidents will likely continue many of Bush's substantive policies. There is no doubt that a president, even (or especially) a Democratic president, will continue some of the policies that Bush has implemented. But any president who reads this volume and reflects upon the destruction of trust in the executive branch, and the loss of its institutional and reputational capital in the wake of the Bush administration, will not go about these policies in quite the same way as our current president. By writing this brave and important book, by detailing the Bush administration's compendium of errors, Jack Goldsmith has helped to ensure a better dispensation for generations to come--one devoted to a government of laws, not of men.

 

Neak Katyal is a law professor at Georgetown University. He previously served as National Security Adviser at the U.S. Justice Department and successfully argued the Supreme Court case Hamdan v. Rumsfeld, which struck down the Guantanamo Bay military tribunals last year.

By Neal Katyal

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