NY Times Profiles Jack Goldsmith

by Roger Alford

Great article in the New York Times profiling Harvard Law professor Jack Goldsmith. His book the Terror Presidency is out later this month should be a bestseller on the Foreign Affairs bestsellers list.

The article has some juicy excerpts of Goldsmith’s confrontations with David Addington. Knowing Jack Goldsmith quite well, I have every reason to believe his recounting of the facts.

Here is how Goldsmith sums up Bush’s approach to executive authority:

Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

If you read anything today, read the Goldsmith profile. It will make you want to pre-order the book.


4 Responses

  1. I am looking forward to reading his book. I do wonder how he will explain his own memo on extraordinary rendition being permitted that was the basis for extraordinary renditions to torture. He was also wrong as the White House was on the 3rd Geneva Convention standards for both the Taliban and Al-Qaeda. So on both scores I think it is hard to say he is so sqeaky clean as the hagiography of the article attempts to do in separating him from those around him.



  2. Ben,

    Do you really think it is fair to say that somebody being “wrong” in your opinion about an interpretation of a legal document is, therefore, not “sqeaky clean.” You think the 3rd Geneva Convention means X, he thinks Y. Why can’t that just be the end of it? If I work for the government, do I have to get your OK on a legal opinion or risk having my personal integrity attacked? If I error the other way i.e. if I hamstring the President by giving too broadly of an interpretation, do I shoulder the burden for the next 9/11.

  3. The New Stream Dream,

    I am sorry if I seem unfair. To me it is not a question of fairness. Last September there was an analysis done of that particular memo by Jose Alvarez and others in the Symposium on Torture of the Case Western Reserve International Law Journal that I found compelling in showing the sleight of hand that Goldsmith had played in that memo. And that sleight of hand was done to permit people to be sent to countries where he/we knew or should have known they would be tortured (on the Department of State’s list). It was that analysis which is not mentioned at any point in the article that is most troubling for me. Also, on the wiretapping Cormey/Goldsmith discussion that is part of the discussion, the sense I have gotten is that – as opposed to Yoo asserting Presidential Constitutional power alone – Cormey and Goldsmith were asserting the authority was statutory under a broad reading of the Authorization to Use Military Force and overrode the specific FISA language. That position was rejected recently by the courts and is on appeal. Sorry, I am not giving references as I am only watching those cases at a distance.

    I look at those positions and permit myself to be less enamored of Prof. Goldsmith – that is it. I am not sure if that is unfair but it seems reasonable to highlight these deficiencies in his service that I think are troubling when we are invited to comment on a hagiographic article. There are others who speak even more strongly about Goldsmith’s misadventures in analysis of international law.



  4. Ben,

    I have no problem with your substantive critique of Professor Goldsmith’s memos. In some ways he agree. I think Goldsmith fell in a trap of giving his client what they wanted, failing to appreciate that others had different interpretations of the relevant law, and ignoring the political implications of his legal advice.

    With that said, I think we all go too far when the criticism goes towards labeling him as a “war criminal.” I think it sets a dangerous precedent, and could have a chilling affect on future legal advice.

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