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Jack Goldsmith, who headed the Office of Legal Counsel in the U.S. Department of Justice for about 10 months, provides, in The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton & Co. 2007), a welcome insider’s analysis of policy discussions and legal interpretations after the attacks of Sept. 11, 2001. Goldsmith took office on Oct. 3, 2003, and proceeded to rescind and modify several OLC memos, including those on interrogation methods. He offers interesting descriptions of such key administration players as John Ashcroft, Alberto Gonzales, Jim Haynes, David Addington and John Yoo. Goldsmith, however, offers a confusing account of the administration’s attitude on the rule of law. In some passages the principle seems held in high regard; elsewhere executive officials could not care less. On the first theme, Goldsmith claims that the administration “has been strangled by law.” The post-Watergate “hyper-legalization of warfare” had become “so ingrained and threatening that the very idea of acting extralegally was simply off the table, even in times of crisis.” Yet Goldsmith also says the administration “chose to push its legal discretion to the limit.” OLC memos on interrogation argued that the president “could disregard legal prohibitions on torture.” As to the binding nature of the 1996 War Crimes Act, the administration “tried to neuter” it. After 9/11, top officials in the administration dealt with Foreign Intelligence Surveillance Act “the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” The two themes seem to merge in one passage: “On issue after issue, the administration had powerful legal arguments but ultimately made mistakes on important questions of policy. It got policies wrong, ironically, because it was excessively legalistic.” He offers no examples to support that generalization. Criticizing the ‘torture memos’ Goldsmith is more blunt and consistent when he talks about OLC’s “torture memos.” He begins by saying that “on the surface” they “seemed typically thorough and scholarly OLC work.” He then issues a pointed rebuke, including “the unusual lack of care and sobriety in their legal analysis,” “cursory and one-sided legal arguments” and a lack of “detachment and caution that usually characterizes OLC work.” The opinions “seemed more an exercise of sheer power than reasoned analysis.” The interrogation memos of Aug. 1, 2002, and March 2003 were works “legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary.” Despite such criticisms, Goldsmith defends the administration’s legal analyses in several areas. He was convinced that the administration “had strong legal arguments for the GTMO detention and military commissions policies.” As to Guant�namo Bay, he claims that the U.S. Supreme Court in Rasul, “after turning somersaults to distinguish an important World War II precedent that the administration had relied on heavily,” announced that it had authority to supervise governmental policies at the naval base. Apparently he is referring to Johnson v. Eisentrager (1950). There were no judicial somersaults. The detainees in Eisentrager had been charged, given counsel, tried, found guilty and sentenced. Those at Guant�namo have yet to be tried. There is little legal analysis about the military commissions authorized by the Bush order of Nov. 13, 2001. Goldsmith cites the Nazi saboteur trial of 1942 and the Supreme Court’s case in Ex parte Quirin. He correctly states that the Bush order was modeled on a proclamation and order issued by President Franklin D. Roosevelt. But he doesn’t explain the sharp differences between that precedent and the much greater reach of the Bush order. The Roosevelt order covered eight Germans who arrived by submarine with explosives and fuses to undermine America’s industrial capacity. They were charged, given counsel, tried and found guilty. The Bush order applied to about 18 million noncitizens in the United States who could face prosecution for activities much less clear. There have been few charges of detainees, restricted rights to counsel and no trials after six years. Indefinite detention without trial is a current dispute; it was not one in 1942. In the final chapter, Goldsmith draws a more telling comparison between Roosevelt’s actions during World War II and the policy pursued by Bush. Roosevelt brought into his cabinet two Republicans: Secretary of War Henry Stimson and Secretary of the Navy Frank Knox. He stretched the law with the destroyer-bases deal but had his attorney general, Robert Jackson, publish his opinion upholding the agreement in the New York Times. Roosevelt understood that political debate is a strength of a democracy in wartime. In contrast, writes Goldsmith, the Bush “go-it-alone approach to many terrorism-related legal policy issues is the antithesis of Roosevelt’s approach in 1940-41.” The Bush administration “is famously secretive and close-looped in its deliberations.” Roosevelt’s approach was “less ideological, more pragmatic.” There were no guarantees that FDR’s efforts would “invariably succeed,” but the Bush administration’s strategy “is guaranteed not to work, and is certain to destroy trust altogether.” Such an insight underscores how excessive secrecy damages national security policy. Louis Fisher is a specialist in constitutional law at the Law Library of the Library of Congress.

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