I’ve finally had a chance to read Jack Goldsmith’s book, The Terror Presidency. Contrary to the publisher-driven media and blogosphere buzz, it is neither a hack job on the Bush Administration nor a tell-all mea culpa about torture and wire-tapping. It is more of a parable about how a “go it alone” philosophy can backfire like no other philosophy. Goldsmith headed the Office of Legal Counsel right after his “friend” John Yoo held the post. He had the ignominious responsibility of pulling back and revising (for the sake of everyone’s credibility) Yoo’s “sloppy,” “flawed, tendentious in substance and tone, and overbroad” 2003 opinions regarding interrogation techniques. Goldsmith doesn’t express much worry about the victims of any such interrogation, but he’s keenly aware of how precarious authority, trust, and credibility all are and showed determination in trying to preserve them.
Goldsmith is the Henry Shattuck Professor at Harvard now. He made his academic name cautioning against “universal jurisdiction” and the application of international law in U.S. courts while teaching at Chicago. That was before his stint in the Bush Administration. It took Goldsmith’s determination to pull the torture opinions and revise them because apparently there were many in the administration who adamantly opposed him and wanted the cover OLC opinions provide. (David Addington, John Bellinger, and some others are referenced throughout the book for their especially idiotic, chauvinistic, and dangerous views.) (Goldsmith’s words, not mine.)
But Goldsmith is undaunted. Comparing this President to Roosevelt and Lincoln (unfavorably—as any sane person must), he says Bush’s big misstep has been that he wasn’t as magnanimous as those Presidents. Lincoln and Roosevelt reached out to Congress and our allies symbolically and informally, even if they occasionally acted unilaterally. Goldsmith even argues that law and lawyers have given us Washington's dysfunctional culture. The Presidency must be unencumbered by legal restraints. Especially now that we face Islamic terrorism, he argues, Executive officials cannot be guided in their choices first by lawyers and second by strategy. That Bush has been a zealot on this is why we haven’t had an attack since September 11, “an accomplishment that seemed impossible on September 12, 2001.”
I watched the towers fall from Columbia’s bridge over Amsterdam Ave. I distinctly remember convincing myself that my wife, who watched from her office window as the second plane hit, would be fine. I wasn’t sure if my law school roommate and good friend made it out alive until the next day. For a time, I couldn’t take anything seriously and gave real thought to joining a friend in the General Counsel's office at CIA. But today I watch as more and more of my students get shipped out of school and into harm's way. Goldsmith’s role in this administration sounds like that of a small brake, doing little to slow a very big train of bad decisions. But he is mistaken if he thinks we will restore our nation’s good name on the path to which his academic work is still pointing. Having a President governed by law does something magnanimity cannot: it sets us apart as an idealistic people.