Wednesday, September 12, 2007

Bush Administration Extremism in War on Terror

You know there's truth to the charges leveled here and elsewhere that the George W. Bush administration has exceeded constitutional bounds in its no-holds-barred approach to the War on Terror when its former key constitutional adviser says so.

As reported by Jeffrey Rosen in the September 9, 2007 New York Times Magazine, Jack Goldsmith, formerly head of the Justice Department's Office of Legal Counsel (the division that advises the president on the limits of executive power) and now a law professor at Harvard, says he is speaking publicly in a new book, "The Terror Presidency," to be published later this month, because he hopes that "future presidents and people inside the executive branch can learn from our mistakes." (In writing this book, Goldsmith is no George Tenet seeking to cash in with a tell-all memoir - he is donating his advance and all proceeds to charity.)

Starting in 2002, Goldsmith served in the Pentagon as a legal adviser to the general counsel of the Defense Department; then in October 2003 he was hired to head the Office of Legal Counsel, only to resign nine months later. As Rosen reports, "Although [Goldsmith] refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror.... By the end of his tenure, he was worn out. 'I was disgusted with the whole process and fed up and exhausted,'" he said.

"In Goldsmith's view," Rosen continues, "the Bush administration went about answering questions [about the legal limits of executive power] in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, 'go-it-alone' view of executive power. As Goldsmith sees it, this strategy has backfired. 'They embraced this vision,' he says, 'because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.'"

Goldsmith's opinion is especially telling since he was a member of the innermost circle of the Bush administration's dealings in the War on Terror. He was in the room, in fact, in the now-famous visit by Alberto Gonzales and White House Chief of Staff Andrew Card to then-Attorney General John Ashcroft's hospital room to demand that Ashcroft approve, over Goldsmith's and others' objections, the secret terrorist surveillance program. Goldsmith describes the scene:

"Ashcroft, who looked like he was near death [with a bright light shining on him and tubes and wires coming out of his body], sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn't appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn't the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I've ever witnessed."

Goldsmith concludes that the Bush administration "badly overplayed a winning hand," telling Rosen that in retrospect "Bush 'could have achieved all that he wanted to achieve, and put it on 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."

If there's any silver lining to the sad saga of the Bush presidency, it's in Goldsmith's concluding words: "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. The Bush administration has borrowed its power against future presidents."

That, indeed, is the system of checks and balances that the Constitution's structural separation of powers was designed to create.