Litigating the Good Fight
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

It says something about the present political moment that a major commercial house has decided to publish a memoir by a mid-level political appointee in the Justice Department who served less than 10 months on the job. It says something about the author, Jack Goldsmith, assistant attorney general in the Office of Legal Counsel from October 2003 to June 2004, that “The Terror Presidency: Law and Judgment Inside the Bush Administration” (W.W. Norton, 220 pages, $25.95) reads much more like a political science text than a kiss-and-tell expose of Bush administration secrets.
Mr. Goldsmith endorses the critique often made by critics on the left, that the anti-terror policies of the Bush administration relied on dangerously broad claims of executive authority. Mr. Goldsmith is also concerned to defend his own record, and he explains that he was not responsible for the memos, depicted by critics as a license to torture, which were produced by his predecessors at the OLC. He explains some of the legal concerns that induced him to seek the recall of these memos, even before they were leaked to the press and provoked a firestorm of denunciation among legal academics.
The controversy dogged him personally, as he acknowledges. When he was subsequently offered a position at the Harvard Law School, the Boston Globe reported that a number of professors protested against hiring an apologist for torture. But only a small part of this book deals with Mr. Goldsmith’s attempts to defend his own conduct.
Most of the book tries to explain why the challenges faced by administration lawyers in crafting a legal framework for the war on terror proved so difficult. Contrary to what critics often charged, top policy-makers in the Bush administration were not indifferent to the law, Goldsmith writes. They were, if anything, extremely anxious about the possibility that they might be indicted for violations of some disputable legal standard by a future administration, or perhaps even by a foreign government.
The concern about legal liability extended down the ranks. Midlevel officials of the CIA and the Defense Department were concerned about how far they could go and still remain within the law. Careers had been ruined in the 1980s and 90s by charges of legal wrong-doing, even when officials had acted in good faith on genuine national security matters. So the CIA had assembled more than 100 lawyers, and the Pentagon many thousands, to provide advice about what was and was not permissible, even in the conduct of missions overseas.
Lawyers in these agencies looked in turn to the Justice Department, especially to its highly respected Office of Legal Counsel. A formal OLC opinion, authorizing a certain form of conduct, came to be viewed as a “golden shield” against subsequent legal challenges – since officials believed they could not be faulted for acting in ways that OLC had advised were legally permissible.
It was not arrogance, in Mr. Goldsmith’s telling, which made the White House so keen to have OLC opinions authorizing conduct at the outer boundaries of legality. It was instead an abiding sense of responsibility. Top officials thought that everything possible should be done to avert another terrorist attack, perhaps one even more devastating to America. On one occasion, Mr. Goldsmith reports, when he argued for a somewhat more restrictive view of what would be legally permissible, a White House lawyer warned him that he would have the blood of fellow-citizens on his conscience if his standard crippled the government’s capacity to avert the next terror attack.
On the whole, Mr. Goldsmith does not quarrel with the substance of policies charted in the aftermath of the attacks of September 11. He defends the detention of prisoners at Guantanamo, the denial of Geneva prisoner of war status to Taliban fighters, proposals to try such prisoners by military commissions and the effort to exclude American courts from reviewing the commission verdicts. He does not even criticize the general effort to restrict the definition of “torture” in ways that would leave considerable latitude to interrogators, though he indicates that the original legal guidance on this subject was too sloppily drafted (and too dismissive of ethical and legal concerns) to be relied on.
Mr. Goldsmith’s main criticism is that the Bush administration was far too ready to build its preferred policies upon sweeping claims of executive authority. It would have been far better, he argues, to seek authorization from Congress for controversial policies, such as the treatment of detainees at Guantanamo. Congress would have been highly receptive to administration proposals in the months immediately following the attacks of September 11. The failure to engage in wider political consultation at that time, he concludes, laid the groundwork for suspicion and recrimination. By contrast, Lincoln and Roosevelt secured more political support for their war policies by consulting more often with Congress and with the leaders of the opposition party.
There is sense to this line of argument. But as Mr. Goldsmith himself concedes, Lincoln and Roosevelt also did many things on their own initiative — such as shutting down opposition newspapers, trying American citizens by military commissions, placing tens of thousands of American citizens in detention camps because of their ancestry — which the Bush administration would not dream of doing. Times have changed.
In recent decades, we have surrounded wartime presidents with more legal restrictions than their predecessors, partly for good reasons, but perhaps also because we find it harder to restrain partisan attacks, even in wartime. Legalism is the natural resort for partisan critics and partisan defenders alike. In this memoir, the official charged with interpreting the law for the executive branch devotes his most earnest arguments to claims about presidential authority that are fundamentally political. He may be right, but he should be the last to express surprise if such claims, from someone of little significant political experience, fail to win a sympathetic hearing.
Mr. Rabkin is a professor of law at George Mason University.