The terror presidency.

medicineman

medicineman

New Member
The terror presidency": By JGoldsmith......Preface.
It is customary for senior officials in the Department of Justice​

to hang portraits of former Attorneys General in their office.

I qualified for the portrait privilege as the head of the Justice
Department’s Office of Legal Counsel (OLC), a job I held from
the fall of 2003 until I resigned, less than ten months later, in July
of 2004. Though little known outside the government, OLC holds
an exalted status within it as the chief advisor to the President
and the Attorney General about the legality of presidential actions.
This small office of twenty-two lawyers determines whether the
government’s most important and sensitive plans are lawful, and
thus whether they can be implemented.
When I came to OLC three years into President Bush’s first
term, the most popular Attorney General portraits had been taken.
On the wall across from my desk in my OLC office hung a painting
that no one else wanted: that of Elliot Richardson, Richard Nixon’s
third Attorney General. Richardson was a distinguished lawyer
who served as Attorney General for five months before resign-
ing as part of Watergate’s “Saturday Night Massacre.” On Saturday,
October 20, 1973, Nixon ordered Richardson to fire Watergate
Special Prosecutor Archibald Cox, who had subpoenaed Nixon
for tapes of conversations made in the Oval Office. But Richardson
had promised the Senate during his confirmation hearings
that he would “not countermand, nor interfere with the special
prosecutor’s decisions.” So he told Nixon that he would quit rather
than carry out his order. “I’m sorry that you insist on putting your
personal commitments ahead of the public interest,” Nixon angrily
told Richardson in the Oval Office. “I can only say that I believe
my resignation ​




is in the public interest,” Richardson responded,​

during his last meeting ever with Nixon.​


1​

At first, I paid little attention to the beady stare from behind

the oversized eyeglasses in Richardson’s portrait. Two months into
my job, however, I had thought a lot about the sixty-ninth Attorney
General. During those eight weeks, I was briefed on some of
the most sensitive counterterrorism operations in the government.
Each of these operations was supported by OLC opinions written
by my predecessors. As I absorbed the opinions, I concluded that
some were deeply flawed: sloppily reasoned, overbroad, and incautious
in asserting extraordinary constitutional authorities on behalf
of the President. I was astonished, and immensely worried, to discover
that some of our most important counterterrorism policies
rested on severely damaged legal foundations. It began to dawn on
me that I could not—as I thought I would eventually be asked to
do—stand by or reaffirm these opinions.
My first reaction to the opinions was to draft a resignation letter—
the first of three such letters I would draft during my nine and
a half months of service. I did so mainly because I didn’t think the
White House or the Attorney General would appreciate the new
OLC boss questioning the legal framework for their important
counterterrorism work of the past two years. I also worried, more
selfishly, that dirtying my hands with this mess would stain my
professional reputation no matter how I acted. But I soon realized
I could not quit. We were in the midst of a war in which many
had lost their lives and scores had risked professional reputations by
making thorny wartime decisions. I had knowingly taken a difficult
job at a difficult time, and had promised to uphold the laws of the
United States. I couldn’t just run away at the first sign of trouble.
So I decided to try to fix the opinions to save as many of the policies
that a sound legal analysis would support. I was pretty sure, in
December 2003, that this decision would put me on a collision
course with my superiors. But I figured it was more consistent
with my oath of office and professional responsibilities, and that my
superiors would let me know when I should leave.​
 
medicineman

medicineman

New Member
Seven months and many confrontations later, I was gone. This
book is about what I learned in my short time as the head of
OLC, what I wish I had known when I began the job, and what
my reflections have taught me since I resigned in the summer of
2004. It is also about the unprecedented and still-unappreciated
challenges that Islamist terrorists pose to the institution of the presidency.
Everyone in the administration with access to highly classified
intelligence on threats to the homeland was scared of another
deadly attack, and of not knowing how to prevent it. This fear
created enormous pressure to stretch the law to its limits in order
to give the President the powers he thought necessary to prevent
a second 9/11. Such pressures are not new. Some of our greatest
presidents—including Thomas Jefferson, Abraham Lincoln, and​
​
​

Franklin D. Roosevelt—bent the law in times of crisis. But unlike
these other presidents, President Bush acted in an era in which
many aspects of presidential war power had become encumbered by
elaborate criminal restrictions, and in which government officials
seriously worried that their heat-of-battle judgment calls would
result in prosecution by independent counsels, Justice Departments
of future administrations, or foreign or international courts.
These twin pressures—fear of not doing enough to stop the next
attack, and an equally present fear of doing too much and ending up
before a court or grand jury—lie behind the Bush administration’s
controversial legal policy decisions about the Terrorist Surveillance
Program, the Geneva Conventions, military commissions, interrogation
techniques, Guantanamo Bay, and more. In defending some
of these decisions and criticizing others, this book examines the
surprisingly central and sometimes unfortunate role that lawyers
played in determining counterterrorism policy. It also tries to give
a sympathetic account of the unusual psychological pressures on
executive branch officials who are personally responsible for preventing
hard-to-fathom terrorist attacks that could kill thousands.
And it seeks to put the Bush administration’s responses to these
pressures in historical perspective, comparing the first presidency
in the post-9/11 era with other crisis presidencies, especially those
of Franklin D. Roosevelt and Abraham Lincoln.
I cannot speak about many of my experiences in government.
Much of what I learned must remain hidden behind thick walls
of classified information, and cannot be written about for years, if
ever. Despite this limitation, I believe I can illuminate important
themes, debates, and pathologies that have dominated the executive
branch since 9/11 and that will continue to dominate it for​
​
​

the foreseeable future. In doing so, this book follows in a long tradition
of Justice Department officials and other executive branch
lawyers who have felt it important for the American people to
understand how and why critical decisions were made during​
their service in government.2
 
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