Justice Perverted by Politics and Fear

By Jack Goldsmith
W.W. Norton, 256 pages, $25.95

During the Reagan years, Washington’s legal insiders all knew that the intellectual shock troops of the conservative revolution in constitutional policymaking were holed up in the Justice Department’s Office of Legal Counsel, where two dozen or so young lawyers out of top law schools and judicial clerkships mapped the counterattack on the perceived excesses of the Warren Court and the post-Watergate Democratic Congress. It was an undersocialized group, almost all male, with their breast-pocket copies of the Constitution, never more comfortable than when arguing the finer points of obscure constitutional clauses. There was among the O.L.C. crew an intense sense of intellectual mission and camaraderie. Think Animal House, minus the fun stuff.

The party had mostly broken up, to academic posts and law firm partnerships, by the time the Democrats regained the White House in 1992. Few have returned to government service in Bush II. Oh, how we should lament their absence. For however one might disagree with their vision, at least they held their commitment to the Constitution above their commitment to politics and any particular president. Hacks they were not.

Jack Goldsmith didn’t work at O.L.C. in its glory days, a little too polished for its rank and file (he instead went straight from a clerkship with Anthony Kennedy to teaching posts at the Universities of Virginia and Chicago, and since to Harvard) and a little too young to have been in charge during Reagan or Bush I. His sensibilities, however, are with that crowd: conservative but remote from the political trenches. Before he took a leave from academe to advise the Defense Department’s top lawyer in 2002, Mr. Goldsmith’s only campaign contribution was to a liberal law professor friend who ran for Congress as a Democrat.

Mr. Goldsmith’s The Terror Presidency is the story of old and new Republicans at loggerheads, an unsettling, compelling and highly credible account of how the Bush presidency took a constitutional wrong turn in the war on terror. When Mr. Goldsmith took the helm at O.L.C. in 2003, he discovered a raft of opinions written by the office on 9/11 issues (included the infamous “torture memos”) that were “legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary,” comprising “more an exercise of sheer power than reasoned analysis.” The worst among these he set out to have withdrawn, while he tried to rein in the White House on other fronts. In the process he ran straight into the executive-power buzzsaw of Dick Cheney counsel David Addington, who had grown used to Mr. Goldsmith’s yes-men predecessors at O.L.C. Although Mr. Goldsmith succeeded in modifying the offending memos, he was gone after an exhausting nine months of pitched interagency battle.

Unlike so many tell-alls (the most recent example: Bush speechwriter Matthew Scully whining about his boss’ ego in the Atlantic Monthly), this isn’t a grudge book. Mr. Goldsmith is true to his Memphis boyhood, and his characterizations are all the more damning for their civility. Mr. Addington comes across as the bully who was blind to the historical imperative of garnering congressional and popular support for wartime’s inevitable legal improvisation. (Mr. Goldsmith artfully interweaves accounts of the more successful Lincoln and Roosevelt war presidencies by way of contrast.) Alberto Gonzales, then the White House counsel, looks the affable lightweight: His provincial career as a Texas corporate lawyer and state court judge left him way out of his depth on national security law. John Yoo, O.L.C.’s point person on terror issues in the wake of 9/11, is the law professor gone bad.

Attorney General John Ashcroft, meanwhile, gets another notch in his new golden-boy belt (who knew?), as someone willing to stand up to White House pressure and attentive to constitutional limitations on presidential power. Even Mr. Ashcroft’s wife gets an assist here, sticking her tongue out at Mr. Gonzales and chief of staff Andrew Card after they failed to extract surveillance authorities out of a near-death Mr. Ashcroft in the now famous hospital room drama, at which Mr. Goldsmith was present.

But there’s much more here than gossip-mill grist. Mr. Goldsmith’s account has decision makers up and down the ladder living in fear of later finding themselves in the dock, in either federal court or before some international tribunal. One C.I.A. operative quips that he needs a lawyer to go to the bathroom. True to his (old guard) conservatism, Mr. Goldsmith sympathizes: “The Administration has been strangled by law,” he writes, “and since September 11, 2001, this war has been lawyered to death.” One wonders if some confident leadership at the top wouldn’t have addressed these fears and better rallied the bureaucratic troops. For all the administration’s surface bravado, one senses a culture of insecurity here, even a whiff of cowardice.

Mr. Goldsmith describes his own more dignified anxieties, the kind that naturally come with saying no to policymakers in the face of a serious security threat. Responding to one yellow light, Mr. Addington helpfully tells Mr. Goldsmith something he already understands, that “the blood of the hundred thousand people who die in the next attack will be on your hands.” Small wonder this presidency has trouble attracting any talent.


Peter J. Spiro teaches law at Temple University. His book Beyond Citizenship: American Identity After Globalization will be published by Oxford University Press in December.

Justice Perverted by Politics and Fear