Jobs that Hurt: A Review of Jack Goldsmith’s "The Terror Presidency"

By Jeffrey Breinholt

In the summer of 2004, the USA PATRIOT Act was up for renewal. Career counterterrorism officials at the Department of Justice like me were encouraged to accept public speaking engagements to explain how the legislation had assisted our efforts. I was invited to appear in San Francisco at the annual convention of the International Trial Lawyers Associations, to participate in a debate. City by the Bay, nice town, where I have a law license and friends. I agreed.

When I arrived at the venue, I learned that my side of the debate would be staffed by Professor John Yoo and Alice Fisher. (This was before Yoo became famous as the author of several controversial Office of Legal Counsel opinions about detainee interrogation methods, and Fisher was appointed as Assistant Attorney General.) The anti-PATRIOT Act position was to be argued by local legend Jim Brosnahan, who had represented American jihadist John Walker Lindh, Bill Lockyer, then California ’s Attorney General, and a local Bay Area ACLU lawyer whose name I cannot recall. (The fact that the highest-ranking law enforcement official in the state was against the PATRIOT Act was the source of amusement for my Republican friends in Palo Alto I visited that night.)

Brosnahan’s prepared remarks were particularly cheeky. A product of the pre-PowerPoint age, he stumbled through the challenge of putting a photo of Lindh on the screen, describing how his client looked like Christ. He then did what he gets paid for, taking off the gloves in describing how the Administration had abused Lindh’s rights, along with those of Jose Padilla, who was then being held as an unlawful combatant. He asserted that this type of official conduct should be shocking to every lawyer in attendance that day. Most of the members of the audience were with Brosnahan that day. After all, this was San Francisco, and he was a member of the organization hosting the event. Those of us on the pro-PATRIOT Act side did not stand a chance.

When it came my turn to speak , I made a joke about how flattering it was to be invited to speak to a group that would never accept me as a member. I then departed from my prepared remarks to address one of the accusations leveled by Brosnahan: that U.S. officials were consciously trampling on individual rights in its counterterrorism policies that kept people incarcerated without any chance of judicial review. If that were true, I asked, why was it that the Supreme Court was reviewing the legality of Padilla’s detention that very term?

This was, I think, an important point. People should take a deep breath before assuming that the Executive Branch could do anything that departs from the rule of law. Earlier that year, I had published a law review article (here) arguing that the rule of law is in action whenever a court decides that the Executive Branch has authority to unilaterally undertake some affirmative action in the national security area. If a court decision goes against the President - as it did later in the case of Jose Padilla - the result is a judicial determination based on competing arguments, which is to say a published opinion, available for future generations responsible for making tough national security calls. One should not confuse positions taken in litigation with the notion that the Executive Branch is acting lawlessly. More often, the competing sides in any separation of powers controversy are staking out logical positions, on issues about which reasonable minds can differ. It does not follow that one side believes in law, whereas the other does not. After all, both are in court.

This phenomenon is on display in The Terror Presidency, the recent book by Jack Goldsmith about his nine-month tenure as Assistant Attorney General for the Office of Legal Counsel. An administration insider, Goldsmith thinks the White House went too far, when the better course was to act on the basis of political consensus.

Goldsmith, who is now at Harvard Law School and recently testified before Congress, notes early in the book that he believes he is part of a great tradition of Department of Justice officials writing about how the agency works for public consumption, and here I fully agree with him. I wish there were more people out there who rolled the dice against the official censors. Unfortunately, Justice officials who write books are typically political appointees rather that career professionals, since the latter keep their jobs irrespective of which party is in power and generally feel obliged to keep confidences they learn on the job rather than risking their tenure. Those of us who served in the trenches generally fought the urge to throw ourselves at the reading public, lest we be visited by our bosses on Monday morning.

Goldsmith, of course, was a politico. As a result, much of what he describes about how the DOJ responded to the events of 9/11 are told from the perspective of someone who was not on the front lines, and he occasionally makes the mistake of assuming his perspective is universal within Main Justice. For example, he bemoans that the fact that government counterterrorism lawyers are increasingly obsessed with legal risks and the prospect that they may be held personally accountable for their official actions, and that they inevitably become risk-averse and start pulling their punches. This image is not something I saw among the career ranks over the last decade in counterterrorism. If anything, career prosecutors often wonder why their political bosses are so concerned with their own hides when national security - and people’s lives -are at stake. We have relatively little to lose, whereas our fellow citizens do. The recent U.S. Attorney firings undoubtedly exacerbated this tendency, to everyone’s detriment.

In The Terror Presidency, Goldsmith invokes a term I have been challenged for using. “Lawfare” is the effort to achieve military objectives through legal instruments. On paper, it is a good thing, if only international legal institutions could decide to be as effective as a single state acting unilaterally. The problem with lawfare is when it is used to stymie otherwise-legitimate efforts of the world’s last, best hope. A strong American military makes us a bulwark against tyranny around the globe, and lawfare is obnoxious when it involves false claims about the actions of our armed forces, as sometimes happens. Goldsmith correctly takes unscrupulous practioners of lawfare to task, as I have in articles. Unfortunately, he seems to want to please them a little too much, which impacts the effectiveness of his story.

Goldsmith’s moment of truth occurred when he visited the South Carolina military prison where the U.S. was housing a Saudi Al Qai’da operative who happened to have been born in Louisiana, thereby making him, technically, an American citizen . From that point on, Goldsmith wondered whether the Bush Administration was doing to right thing as opposed to engaging in aggressive tactics as a knee-jerk reaction. If the Administration had gone to Congress before engaging in the controversial surveillance or initiating the military tribunal system, Goldsmith argues, it would have come out further ahead in the end.

I agree with much of Goldsmith’s take on things. It is true that lawyers and judges are the last refuge of humanism when a national security apparatus feels compelled act in expedient way, and that political types in the White House did not sufficiently appreciate of the value of a diversity of viewpoints. However, his central point - that issues of war and national security have become overlawyered - comes up a little short. Some of us believe that the operation of law in important military issues is a good thing, since it gives rise to legal opinions that can guide the decisions of future generations. That is no small thing. Goldsmith decries the role lawyers play in counterterrorism policy as “unfortunate.” I am not so sure. The law enforcement approach to counterterrorism in the 1990s was hardly a failure. There are plenty of jihadists who now toil alone at the Federal Correction Facility in Florence, Colorado . That’s undoubtedly a better place for them than walking around free in Cairo or Tehran. At the very least, I think one of the great developments since 9/11 is the growing industry of lawyers interested in careers in national security.

To illustrate, let’s take Goldsmith’s worst fear as true. Assume that the White House ideologues took things to their absolute limit, and that they - in Goldsmith’s words, quoting David Addington - decided to “push and push and push until some larger force makes us stop.” Is that such a bad thing? The Democrats in Congress might have gotten their noses out of joint for sure, but that happens in any separation of powers controversy, no matter who is President. Goldsmith cites the civil rights abuses of Abraham Lincoln and Franklin Roosevelt, and the prospect that they may have suffered political damage as a result of decisions they took in perilous times. Those decisions were far more expedient - in lawyerly language, “more unprecedented” - than anything the Bush Administration did. After all, the administration was looking to make good (or any law), in a climate where legal principles were not so clear. The reason for this lack of clarity is because we were in unchartered waters. This is different from having clear law and willfully violating it, which historians like Goldsmith and the University of Chicago ’s Geoffrey Stone seem to excuse when done by such revered historical figures as Lincoln and FDR. The concept of acting aggressively in the face of constitutional gray areas was elucidated in a great post-9/11 law review article by University of Minnesota law professor Orin Kerr. It is hardly lawless. If our past presidents had pushed harder in their times, we may not have been flying so blind after 9/11.

In the battle between the cool professionals and the political alarmists, Goldsmith’s words occasionally give away which vantage he occupied. Sure, he felt abused by the political types sometimes, but this was undoubtedly exacerbated by his desire to be accepted by them. Through several administrations, career prosecutors get over this dream pretty quickly. Goldsmith was angered that he was hauled before a grand jury investigating press leaks concerning NSA surveillance, and bemoans how he would have to spend money on legal fees in the process. For the careerists, this experience may have been another day at the office. I have testified before a grand jury, and never felt the need to hire a criminal defense attorney or felt anger towards by colleagues those who issued a subpoena. Hire a lawyer? I was a federal prosecutor, which meant I understood the process well enough to give myself counsel. I like to think that the career prosecutors at Justice approach the description by former Senator Bob Graham, which Goldmsith quotes in The Terror Presidency: “excellent, aggressive lawyers who give sound advice, not lawyers who say no to an otherwise legal operation just because it is easier to put on the brakes.” My colleagues in counterterrorism were not subject to what Goldsmith describes as the Washington pathologies that include the blame game and the cover-your-ass syndrome, if only because we chose not to be. We were not looking for better jobs, which means perhaps we are less politically accountable, but there is a value to that in jobs that can eat you up. We thought in terms of the law, rather than office (or administration) politics.

In the end, are we better or worse off for the efforts by the “unitary executivists” in the Bush Administration, who Goldsmith thinks went too far and spoiled his excellent adventure as a political appointee at the Department of Justice? If and when the next terrorist attack hits, we will certainly know more now about what the U.S. Constitution requires in terms of our treatment of individual members of the enemy, if only because we now have clear Supreme Court opinions to guide us. This is because the current administration, whatever its miscues, pushed the envelope to get our courts to render judgments of where the lines between collective security and the treatment of individuals should be drawn, in a climate where it was not so clear to those responsible for unleashing official actions. Is this not the same process used by ACLU and the environment law firms that engage in impact litigation? You search for good facts to advance a particularly aggressive legal proposition. A terrible thing? I am not convinced. On the contrary, we are better off for it. The result more is more data for legal analysts and historians to examine.

After the debate in San Francisco, I was approached by a young college student, who had obviously been brought to the event there by his father or mother, a member of the august group we had just addressed. He furtively told me that, after listening my remarks, he was inclined to possibly entertaining the notion of considering the prospect of, like, sort of like agreeing with me about the PATRIOT Act. Unprecedented? Maybe in San Francisco circa 2004. If our goal was to explain to people why the PATRIOT Act should be renewed, we clearly lost the battle that day, even if we had some fun and enjoyed some small satisfactions like the compliments of a kid we didn't know and may have impressed. Later that year in Washington D.C., Congress considered the legislation they claimed was rushed after 9/11, and renewed it without major changes. Why? It was because people on both sides of the aisle took a deep breath, and put aside the natural tendency to assume the worst about the motives of people responsible for keeping them safe.

In the end, I like Goldsmith's book, and hope he keeps it up. I also hope we hear more from Justice employees in a variety of different positions, about what they remember and how they manage to survive in jobs that hurt.

The views expressed in this article are not those of the Department of Justice

TrackBack