Tuesday, September 11, 2007

Jack Goldsmith: liberal truth-teller?

An article by Benjamin Wittes, at the New Republic online, makes in greater detail an argument I only gestured toward in my recent item about Jack Goldsmith's new book, "The Terror Presidency": Goldsmith is not quite the liberal hero he's being painted as in profiles of him and reviews of his book.

Yes, Goldsmith thought the Bush Administration Justice Department produced two terrible "torture memos" and overreached in defending executive power. But don't forget, writes Wittes, whom Goldsmith consulted while writing "The Terror Presidency," that on

the merits of many disputed issues, Goldsmith is far closer to the administration he criticizes than to his fellow critics. He decries ... the legalization of warfare and the application of criminal statutes to foreign policy decisions, describing "a paralyzing culture of risk-averse legalism in the military and, especially, intelligence establishments before 9/11." He defends the decision to hold Al Qaeda and Taliban fighters as "unlawful enemy combatants" and the legal propriety of military commissions. While he considered the torture memos legally unsupportable and withdrew them, he offers no objection in principle to highly-coercive interrogation, writing that he had "very little basis for second-guessing my superiors' judgment that certain detainees should be questioned as aggressively as legally possible." He also "shared many of the White House's concerns with the Foreign Intelligence Surveillance Act (FISA)," the same law over which he and others were prepared to resign in order to force the administration to comply with it: "It seemed crazy to require the Commander in Chief and his subordinates to get a judge's permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, email, and ten-dollar cell phones." Goldsmith criticizes liberals for not taking the terror threat seriously and not taking the conflict with Al Qaeda seriously as real warfare.

No one who watched a gleeful Bill Moyers interviewing Goldsmith on Friday night, on PBS's "Now," would have any idea of where the Harvard law professor stands on such issues. Moyers embraced Goldsmith as a fellow anti-Bush crusader -- he urged "all Americans" to read "The Terror Presidency," as I recall -- but the worldviews of interviewer and interviewee could hardly be further apart.

Posted by Christopher Shea at 10:52 AM

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