The Government's Lawyer

In a post a couple weeks ago, I reacted to Jack Goldsmith’s book, The Terror Presidency. In my reaction, I quoted harsh language Goldsmith uses to describe lawyers and/or ideas that have graced this Justice Department, this Office of the Vice President, and this Executive Office of the President. Most especially, I focused on Goldsmith’s references to David Addington—who I lumped together with other Administration lawyers (namely John D. Bellinger III). Let me set the record straight: as Steve Clemons stated on his blog and as Paul B. Stephan, the “Lewis F. Powell Professor of Law” at the University of Virginia, brought to my attention privately, Goldsmith nowhere lumps Bellinger in with Addington. But let me do so again here.

Goldsmith reveals some of the internal debates that preceded several of the Administration’s key decisions in its “war on terror.” He’s even been on the Daily Show pedaling this as his book’s message. Chapters 3, 4 and 5 detail how integral legal counsel has become to executive branch actors now that they occasionally come home to special investigations and various legal repercussions for their (illegal) actions. And he plays up how many government lawyers opposed the positions ultimately adopted by the Administration on, for example, Guantanamo Bay and torture. At times you think Addington intimidated people like Goldsmith and Bellinger.

Now anyone who has ever been part of a team of lawyers advising an institutional client knows that when “the client” takes the advice you opposed, you’d at least like a record to reflect it. But this wasn’t just some insurance case. When an insurer stakes out a litigation position, a court ultimately sorts out the merits of the parties’ claims. Elements of the executive branch like the Office of Legal Counsel are supposed to know better. They’re supposed to know that their institutional client, unlike others, usually has the last word on the legality of its own actions. It is an oversimplification to say that they must take a “judicious” perspective of their role, but it captures some of what went wrong in this Administration. (And it, along with modern sovereign immunity doctrine, also suggest why individual executive branch employees are so often the subject of legal scrutiny as individuals).

Of course, it is only now—well after this Administration dishonored the United States by committing atrocities and absurdly arguing that they were legal—that people like Goldsmith are even showing up. It is only now, when those policies and the people behind them have unraveled and are circling history’s drain while America languishes in an endless war, that we see former government lawyers stepping out into the public eye to announce that they protested and said that Congress should’ve been involved more. Disgraceful hardly touches what this Administration has done, though, and ‘opportunistic’ hardly captures this latest behavior.

As a story in Thursday’s N.Y. Times evidences, sources in and out of the Administration now seem bent on pinning its shadiest legal work behind detention, torture, and surveillance on roughly two people: John Yoo and David Addington. This is mostly Goldsmith’s tune, too, and to whatever extent my post suggested that he had specifically named anyone else, my post was inaccurate. But let me repeat this. Goldsmith says “fear” was the main reason that people like Addington and Yoo came out on top so many times in those internal deliberations—fear of the “next attack.” (pp. 165-76). Fear may have had something to do with what happened to this country over the last six years. But so did character.

Posted by Jamie Colburn