Following the Rule of Law -- Part II

By Carol Gee

Following the rule of law is a principle about which I posted yesterday. That post focused on the admirable support for civil liberties and the rule of law that has been given by Representative Sheila Jackson Lee of my home state of Texas. Today's post, about former Assistant Attorney General Jack Goldsmith, focuses on his own courageous support for the rule of law within the current Bush administration.

Judging from the facts -- I would venture to guess that Representative Jackson Lee and Jack Goldsmith are very far apart on the political spectrum. But they are very close on the integrity spectrum, in my opinion. Most of us first met Mr. Goldsmith when he testified before the Senate Judiciary Committee earlier this month. returning to former Assistant Attorney General Goldsmith's story - told at a Senate hearing three weeks ago. His riveting (10/2/07) testimony can be seen again on C-SPAN: Senate Hearing on "Preserving the Rule of Law While Combating Terrorism" - Jack Goldsmith, Harvard Law School, Professor and former Asst. Attorney General testifies before the Senate Judiciary Cmte. on FISA and counter terrorism efforts. 10/2/2007: WASHINGTON, DC: 1 hr. 55 min.

Goldsmith appeared as a single witness. Now out of the government, he testified about his prior service in the Bush Justice Department. No doubt the members of the Judiciary Committee had very fresh memories of what has gone on inside the Justice Department, according to two brave officials who told the truth to the committee during previous testimony. The first was James Comey, who originally revealed the attempts of Alberto Gonzales and Andrew Card to coerce ailing Attorney General Ashcroft into authorizing illegal wiretapping. During 2003-04 the second, Jack Goldsmith, worked in the Office of Legal Counsel for the current administration, where he worked at the time of this episode . His current book is titled, "The Terror Presidency: Law and Judgment Inside the Bush Administration."

Judiciary Committee Hearing Notes for 10/02/07 "Preserving the rule of law. . .":
As my regular readers know I sometimes take notes during congressional hearings. Following are a few of my notes which paraphrase, as best I can, the gist of participants' significant remarks made at that time.

Senator Feinstein, to Goldsmith regarding the torture law, asked: Why go beyond the UCMJ? Goldsmith explained that there was great pressure to get intelligence information. Regarding the law and counter terrorism, Goldsmith asserted that it is not the Supreme Court's job to do counter terrorism policy.

Senator Sessions: Goldsmith on the hospital room confrontation. Jim Comey, "No legal basis for the program in question." His legal analysis was at the bottom of all this. New attorney General nominee - going up to the line but not entitled to break the law. There are the Geneva Conventions and what Congress passed, the criminal torture statute in 1994. This was the controlling authority to the extreme. It prohibited "severe," etc. The CI A had 100 + lawyers and they were worried about their own culpability. The Hamdan decision mad Common Article 3 applicable to torture. The CIA went up and down over the years with risk aversion, and then not risk averse. They have needed very clear standards. Goldsmith was the one who rescinded the torture memo as "severely flawed."

Senator Feingold: "This is very important testimony." He asked if there were any administration programs not briefed to the "Gang of 8." Goldsmith was not sure how much was briefed. Feingold asserted that the PAA could be very broadly interpreted. Congress should write the law in the way we want it to be interpreted.

Mr. Goldsmith asserted that some of the drivers in the department was hostility towards the FISA court and deep fear of bombs killing U.S. citizens. Goldsmith wrote memos to replace the one he rescinded. And he was prepared to resign. He kept notes about his actions. Regarding the TSP, very few people were provided the legal opinion justifying it. (Goldsmith was willing to testify to the committee in closed session). Asked who was in on it, he named himself, Baker, Comey and Gonzales. He also stated that his book was "pre-cleared" for classification purposes. He also admitted to being self-constrained in what he disclosed in the book.

Senator Cardin: Most concerning is the administrations dealings with Congress. The disdain for the FISA court system is also my concern. "We need an independent FISA court." Goldsmith: "They have been independent. We need to to integrate detainees into the justice system because they are dangerous. We'll have to detain members of the enemy until the war is over.And that could be endless. They don't wear uniforms. They are not members of a criminal system, either. We need something else, legally."

Senator Whitehouse: Returned to the issue of the Gonzales/Card visit to the hospital room of Attorney General Ashcroft. Stated his opinion that, "James Comey and Bob Mueller were among the most level-headed people in government, not given to exaggeration. But you and Comey rushed with red lights on across town to the hospital room, Comey bounded up the stairwell, and Mueller called his FBI agents with instructions not to leave Gonzales and Card alone with Ashcroft in that room. You saw it as an emergency, the White House trying to take advantage of a very sick man." Goldsmith characterized the episode as, " It was extremely inappropriate." Senator Whitehouse stated his belief that the Office of Legal Counsel should really follow a set of internal norms and practices, and that the new Attorney General should examine the state of those norms and practices left by Gonzales. "Do a thorough scrub to protect the Justice Department. Those norms were bypassed, degraded and ignored by Alberto Gonzales, John Yu, David Addington and the like. There were no limits on the President's prerogatives. That policy has been hurtful."

Mr. Goldsmith related the "messages" he got about the terrorist threat situation, with some attribution to David Addington in the Vice President's office. Nothing should "tie the President's hands. That would be hurtful to the country. You don't want the blood of 100,000 people on your hands." He was stirring up fear, of course, but Goldsmith did not think the level of threat was exaggerated, however. There are "tens of billions of phone calls and e-mails that equal a daily matrix of threats." He said that Bin Laden "declared war" in 1996, but the administration was timid back then. But even today officials still fight over "do everything you can versus operate within the law." This produces extraordinary anxiety for decision makers. There is a great need to legislate very clearly, with oversight but not prosecution. There needs to be accountability. Right now agents all carry lots of liability insurance. We need new laws, perhaps a good faith statute? The threat was real. But the more viewpoints we get with these extremely difficult decisions, the better. Congress, indeed has the right to know how the President will interpret any new legislation.
Regarding the idea of retroactive immunity for telecom companies, he thought that was "sensible." And regarding the practice of torture, he "does not know if it has been abandoned. . . Signing statements can be operationalized. The real fear is getting hauled into court."

Senator Whitehouse continued with a discussion of how torture came under such assault; what about "very severe pain? Does that condone burning with cigarettes, which would risk death?" Goldsmith revealed that Where the "Bybee Torture Memo" standards emerged was from health care statutes applied to the requirement to provide health care benefits in emergency circumstances. Whitehouse concluded with a brilliant and important statement about his love for the rule of law. It must not be treated this way. "It has shape and substance and form" deserving better than this.

Senator Leahy told Goldsmith, "We can't trust the administration, if we want to protect those CIA agents under such tremendous pressure.". . . "You kept your conscience."

Following are the related stories during that week.

• Summary of a Phone call to the C-SPAN Thursday morning program from Scott Shane, the NYT reporter who broke the (new torture memos) story: "Representative John Conyers and Senator Patrick Leahy have asked the White House for copies of the legal opinions. Oct. 17 will be the confirmation hearings for the new AG." (Shane) talked to two dozen officials in and out of government. He noted that Acting OLC Bradbury has been refused confirmation by the Democratic Senators.


• Senator Kennedy spoke on the floor of the Senate Thursday, October 4: Regarding the NYT story -- "The office of Legal Counsel withdrew its legal opinion on torture. But later in 2005 the administration put 2 new opinions in place. 1) The harsh interrogation techniques were allowed to be used in combination. 2) It declared that the CIA was not violating the law with anything they were doing -- amounting to a declaration that the CIA had not violated any laws along the way. In that way the White House had overruled the OLC. Comey and Goldsmith had been sidelined. Attorney General Gonzales had approved these two opinions and everything else the President wanted. (Kennedy will be introducing a bill that states that the standard of treatment of detainees by anyone in the government will be the Army Field Manual). This is because 2005 Detainee Treatment Act had a loophole in it, allowing the President to define those standards, not Congress. The Executive Order took maximum advantage of the opportunity. This nation cannot stand for the use of brutal interrogation techniques."


• Statement from our current president (OCP) later that morning -- with a rather defiant tone, "I have put this program in place for a reason. This government does not torture people; we detain and question people looking for actionable intelligence. The techniques were fully disclosed to Congress. The Government sticks to U.S. law and obligations. Highly trained professionals doing this work to protect you. The American people expect their government to take action to protect them. And that is exactly what we are doing."

In conclusion - in addition to Sheila Jackson Lee and Jack Goldsmith, several Senate Judiciary Committee members have also acted admirably throughout this controversy. I include for kudos: Senator Patrick Leahy is the tough chairman. Senator Arlen Specter is the Republican who also loves the law. Senator Diane Feinstein (not an attorney), but as good as many lawyers, her fellow members have declared. Senator Kennedy, who is not afraid to speak out about almost anything. And most of all Senator Sheldon Whitehouse, whose passion for the purity of the rule of law in unmatched, in my opinion. Heroes all, too often in the company of cowards.

(Cross-posted at South by Southwest.)