Friday, September 7, 2007

The terror lawyers

"The Terror Presidency," a new book by Jack Goldsmith, a Harvard law professor and head man at the Justice Department's Office of Legal Counsel from October 2003 to June 2004, is getting a lot of attention, thanks to some special-access deals W.W. Norton cut with the New York Times magazine and Slate.

Slate dramatically labels excerpts of the book "Inside the Bush Power Grab," but Goldsmith explicitly states that his tale should not be framed as one of power-mad Bushies vs. brave lawyers who take a stand on the Constitution. True, Goldsmith clashed with White House lawyer (specifically, Cheney lawyer) David Addington whenever Goldsmith suggested, for example, that working with Congress on such things as detainee policy was the pragmatic thing to do.

Addington thought that that meant Goldsmith was in favor of "giving away" Presidential power. Goldsmith, however, countered that the then-Republican-controlled Congress would largely give Bush what he wanted anyway. So the disputes were largely about means, not ends. A strong defender of Presidential prerogatives, an opponent of the creeping influence of international law on American jurisprudence, Goldsmith absolutely doesn't want to be lionized by liberals. But that's sort of happening now.

To me, the most interesting part of the book comes when Goldsmith finally says what he thinks about the infamous "torture memos" written in 2002 and 2003 by the then-OLC-lawyer John Yoo, who ironically helped get Goldsmith his prestigious job. Retracting OLC opinions is almost never done, Goldsmith writes, and yet he knew, almost from the moment he arrived, that Yoo's torture documents were so bad that there was no alternative to pulling them.

As has been widely reported, Yoo defined torture so narrowly that many practices commonsensically considered torture would have been permitted under U.S. laws banning it. For instance, Yoo plucked a definition of "severe pain" -- a distinguishing characteristic of torture, under U.S. law -- from a manifestly irrelevant statute having to do with medical benefits. To be torture, Yoo concluded, an act had to cause the sort of pain associated with "organ failure, impairment of bodily function, or even death." These word games "didn't seem even in the ballpark," Goldsmith writes.

Moreover, Yoo concluded that the President could ignore anti-torture laws at will, if he deemed torture necessary to protect the nation. In failing to mention precedents suggesting that Congress might have some voice in the matter, Goldsmith writes, Yoo's memos displayed "an unusual lack of care and sobriety in their legal analysis."

Goldsmith finally asks: "How could [Yoo's] opinions reflect such bad judgment, be so poorly reasoned, and have such a terrible tone? And why would OLC write an opinion that was so unnecessary and overbroad?" Goldsmith's own answer is anticlimactic, after that damning peroration: Terror threats were pouring into the White House in 2002 and 2003. It's understandable, he says, that even brilliant, honest public servants would suffer lapses in judgment.

Yoo, for his part, has said he stands by the memos and that Goldsmith caved to political pressure from liberals. So he, anyway, doesn't agree with Goldsmith's generous verdict of temporary insanity.

One wonders whether Jay Bybee does. The OLC chief who signed off on one of Yoo's memos is now a federal-appeals court judge on the Ninth Circuit. He has lifetime tenure.

Posted by Christopher Shea at 02:01 PM

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