Principle and Peril
In his brief government career, Jack Goldsmith walked a precarious yet well-worn path.
Not long after Jack Goldsmith started his new job, he thought it was time to quit.
In the fall of 2003, he became the head of the Office of Legal Counsel at the Justice Department. A conservative lawyer with deep knowledge of international law, Goldsmith spent his first eight weeks being brought up to speed on some of the government's most sensitive and highly classified counterterrorism operations, including enemy combatant detention, interrogation policy and warrantless surveillance. Each of these activities was supported by a legal opinion crafted by his predecessor, which carried the force of law and served to shield intelligence officials and operatives against potential prosecution for their actions.
"As I absorbed the opinions, I concluded that some were deeply flawed," Goldsmith, now a professor at Harvard Law School, recounts in his memoir, The Terror Presidency (Norton, 2007). Like an engineer discovering the crumbling foundations of an outwardly solid-looking edifice, Goldsmith concluded that the legal analysis holding up many of the government's central counterterrorism efforts was "sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president. . . . It began to dawn on me that I could not-as I thought I would eventually be asked to do-stand by or reaffirm these opinions." And so, Goldsmith drafted a letter of resignation, the first of three he would write during his nine and a half months at OLC.
But he decided not to quit right away because, he writes, "We were in the midst of a war in which many had lost their lives and scores had risked professional reputations by making thorny wartime decisions . . . I couldn't just run away at the first sign of trouble." In his course to put a wartime presidency on a more secure legal footing, Goldsmith clashed with top administration officials-most notably Vice President Dick Cheney and his formidable legal counsel, David Addington, who was incensed by Goldsmith's efforts to right and even overturn OLC opinions.
Goldsmith insists that the president could have obtained many of the extraordinary powers he and his advisers sought through a fuller, more transparent negotiation with Congress and the judiciary. In that regard, his book has reaffirmed the central critique of many administration critics-that a "go-it-alone" policy has cost more in public trust and official credibility than it has accrued in strengthening security or the presidency. Bush's opponents have embraced Goldsmith and his work. But that makes him uncomfortable, because history could have judged his actions as terrible mistakes.
"I wrote this book because I thought there were important things that needed to be understood about the challenges to the presidency [during wartime] and the mistakes the Bush administration made," Goldsmith says. But ultimately, had the country suffered another attack owing to his legal analysis-say, because interrogations that he refused to condone prevented intelligence agencies from uncovering a future attack-Goldsmith says he would be judged not as a courageous man of principle, but as a fool.
And this is the real heart of The Terror Presidency, perhaps the most empathetic portrayal to date of the constant, extraordinary and often overwhelming pressures that assail intelligence and security officials who are trying simultaneously to prevent calamity and to work within the boundaries of law.
Readers come away with a sense that behind Cheney, Addington and other well-known and controversial administration figures are legions of federal employees who walk this precarious path every day, feeling hopeful and terrified. Goldsmith was one of them, and he says he wrote the book in part to help inform future officials about that reality, with which he was unfamiliar when he signed on for the job.
"If I knew at the beginning of my tenure what I knew at the end, I would have been a lot better off," Goldsmith says. "I wanted people inside the executive branch making hard decisions to understand that these challenges are not going away."
Shane Harris, a staff correspondent for National Journal, wrote about intelligence and technology at Government Executive for five years.