Monday, January 30, 2006

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Hey, I actually do know Jack

Fifteen months ago, Dana Milbank had a Washington Post story that touched on the tension that existed between David Addington, Vice President Cheney's longtime lawyer and new chief of staff, and other national security lawyers in the administration:

Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president....

On the job, colleagues describe Addington as hard-edged and a bureaucratic infighter who frequently clashes with others, particularly the National Security Council's top lawyer, John Bellinger. Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel, led Goldsmith to resign after eight months in the job; Addington had sought to persuade OLC to take a more permissive line on torture.

Still, even foes admire Addington's work ethic and frugality; he takes Metro from his home in Alexandria instead of using his White House parking space.

I dredge this up because Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas have written a much fuller account (and some regretfully overripe language) of this tension within the administration for Newsweek (link via Orin Kerr):
James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right—and to doing the right thing—whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way."

One of those people—a former assistant attorney general named Jack Goldsmith—was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror.

These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage.

Read the whole thing. I have nothing to add but this -- I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack.

The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream.

Oh, and one other thing: Henry Farrell is right. Those who criticized Goldsmith's appointment to Harvard Law School on ethical grounds (click here for one example) have a hell of a lot of crow to consume.

posted by Dan on 01.30.06 at 02:35 PM


I hate to sound like a broken record on this subject, but the amazing thing about this story is the central influence exercised by a staffer to the Vice President.

Prior to the Clinton administration this idea would have been considered almost literally crazy by any occupant of the Oval Office, and even Clinton gave his Vice President only a modestly larger policy role than Carter, say, had given Walter Mondale. The Bush administration by contrast almost brings to life the bizarre "co-presidency" idea briefly kicked around before the 1980 Republican convention.

At that time the idea was that a "dream ticket" of the hardline conservative Reagan and the less conservative but personally popular Gerald Ford might be worth an unprecedented amount of power-sharing (to his credit, the one person who gave this idea shortest shrift was Reagan himself). What we see today is less complicated -- it is simply the product of a very weak President, so disengaged from policymaking and distrustful of his own Cabinet secretaries that he must rely on his Vice President just to keep the executive branch functioning.

No one has ever accused George W. Bush of being weak or disengaged from the business of running a campaign. Evidently in early 21st century Presidential politics that is the only ting that matters.

posted by: Zathras on 01.30.06 at 02:35 PM [permalink]

Wait a minute.
These folks knew that the Bush adminsitration was pursuing policies well outside the law, kept this information to themselves, went back to well compensated positions, and you think people should be eating crow for questioning their ethics?

Would you consider the witness who refuses to testify at a criminal trial ethical?

posted by: mawado on 01.30.06 at 02:35 PM [permalink]

Adding to mawado's excellent point, Dan: so you think that people should eat crow for criticizing somebody on the basis of the available information? Especially considering that, if some of these opponents of unlimited presidential power had gone public back before Nov 2004, when it mattered, we might have kicked Bush out of the Oval Office?

posted by: Barry on 01.30.06 at 02:35 PM [permalink]

If their stick is true then they should tell it to congress. Or do you think congress wouldn't like to hear things that embarass the president?
Otherwise sounds like sour grapes. They want to run policy without running for office.

posted by: Huggy on 01.30.06 at 02:35 PM [permalink]

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