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Among the more fascinating subjects in Jack Goldsmith’s fascinating new book, The Terror Presidency, is the notion of “lawfare.” Goldsmith, a former assistant attorney general, former Pentagon legal adviser, and current Harvard law professor, defines it as a “strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective.” While the idea that lawfare threatens American interests had been kicking around the Pentagon for some years, Goldsmith writes that it found a particular champion in then-Secretary of Defense Donald Rumsfeld. Rumsfeld took special note of efforts by a number of government officials in smaller nations to use international law to hold former Secretary of State Henry Kissinger accountable for several of his less-savory foreign policies, particularly his support of Chilean dictator Augusto Pinochet (and Pinochet’s right-wing death squads). Rumsfeld and others viewed the pursuit of Kissinger as a direct threat to U.S. military power, an “asymmetrical legal weapon” that could inhibit U.S. officials from taking aggressive action against the nation’s enemies. As a Pentagon lawyer, Goldsmith himself had written that the U.S. government was “seriously underestimating this threat and has mistakenly assumed that confronting the threat will worsen it.” So confront it the Bush administration did, giving concerns over lawfare such a high priority that the administration refused to sign on to the International Criminal Court and the Kyoto Protocol on global warming. Lest there be any confusion on the issue, Goldsmith notes that Rumsfeld chose to widely circulate a 2003 memo in which Goldsmith dubbed the International Criminal Court “at bottom an attempt by militarily weak nations . . . to restrain militarily powerful nations.” Perish the thought! The secret to lawfare’s effectiveness, Goldsmith writes, is its “apparent moral high ground.” Apparently, in order to combat such a pernicious force, a country can’t be overly scrupulous on how moral its own actions appear. And the problem, Goldsmith notes, has hardly been confined to irritating international accords — there were plenty of laws right here at home that had to be dealt with. Two of the most vexing issues were a 1994 federal anti-torture statute, which made it a crime to inflict severe physical or mental suffering on those in government custody, and the requirement that the United States comply with the Geneva Conventions on the treatment of prisoners of war. The desire to escape this last restriction led to then-White House Counsel Alberto Gonzales’ memo arguing that the war on terrorism rendered “quaint” Geneva’s limitations on questioning enemy prisoners. As we now know, the road from this memo to waterboarding and the sick antics at Abu Ghraib prison in Iraq was a fairly short one. From the Bush administration’s point of view, the culprit most responsible for curbing its ability to fight the war on terrorism was the “legal culture” that arose in (you guessed it) the 1960s. Fashioning an end run around this unfortunate obstacle turns out to have consumed a great deal of time within the White House. Eventually these machinations exceeded the tolerance of even a conservative partisan such as Goldsmith. But when Goldsmith, then head of the Justice Department’s Office of Legal Counsel, refused to sign off on the legality of a key counterterrorism plan, David Addington, Vice President Dick Cheney’s top legal adviser, turned on Goldsmith in a dark fury: “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” The next attack: It is this idea that most permeates Goldsmith’s book — the fear, the rampant fear, of what may come next. Pumped full of a panoply of graphic nightmares by a daily “threat matrix” briefing, even sober administration officials began to loose their moorings. It is, at bottom, a view that the splitting of the atom and the proliferation of nuclear technology has rendered quaint not only the Geneva Conventions, but also our ideal of divided government. In its place, we get Addington’s vision of the “unitary executive,” a figure whose power is coextensive with his reach. “There is no sure defense against a man with nothing to lose,” an old saying goes. In trying to disprove that, the administration has been willing to severely erode America’s legal foundation. And that’s the worst kind of lawfare of all.
Douglas McCollam is Legal Times senior editor and can be contacted at [email protected].

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