|
|
Tarfumes.com - The Terror Presidency: Law and Judgment Inside the Bush Administration
|
List Price: $25.95
Our Price: $17.13
Your Save: $ 8.82 ( 34% )
Availability: Usually ships in 24 hours
Manufacturer: W. W. Norton
|
Average Customer Rating:  
|
|
Binding: Hardcover
Dewey Decimal Number: 342.73062
EAN: 9780393065503
ISBN: 0393065502
Label: W. W. Norton
Manufacturer: W. W. Norton
Number Of Items: 1
Number Of Pages: 256
Publication Date: 2007-09-10
Publisher: W. W. Norton
Studio: W. W. Norton
|
|
|
|
|
|
Editorial Reviews:
|
A central player's account of the clash between the rule of law and the necessity of defending America.
Jack Goldsmith's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. Goldsmith took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed.
Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. Goldsmith's fascinating analysis of parallel legal crises in the Lincoln and Roosevelt administrations shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history. 8 pages of photographs.
|
|
|
Spotlight customer reviews:
|
Customer Rating:
Summary: Beware lawfare
Comment: "Disgruntled-Bush-administration-official-writes-scathing-tell-all." It's practically a genre unto itself. At first look, "The Terror Presidency" by Jack Goldsmith, the former head of the Justice Department's powerful and prestigious Office of Legal Counsel, looks like yet another addition to this group, alongside such forgettable pieces as those authored by Paul O'Neill and Scott McClellan. And in a certain sense it is. But Goldsmith has written something that goes beyond simple naming-of-names and assigning blame - and that is what makes this book worthwhile and recommendable.
There are three main themes to "The Terror Presidency." The first has to do with the expansion of judicial influence in national security policy making, which I found educational and thought-provoking. The second recounts Goldsmith's brief and tumultuous tenure in government, which is predictable and accusatory. The third theme concerns the development of a "right way" to circumvent the Constitution and legal restraints on executive power, which I found rather unexpected and somewhat puzzling.
First, Goldsmith writes that a new form of fighting has emerged over the past several decades: death by lawsuit, otherwise known as "lawfare" and which may very well qualify as the fifth generation of warfare. To many senior Bush administration policymakers and frontline participants in the War of Terror this innovative form of conflict is the most terrifying yet devised. The author's general thesis is that Bush administration officials were "excessively legalistic" from 9/12 onward because the shadow of future lawsuits hung over their heads like some 21st century variant of the Sword of Damocles. Not only is the upper echelon of political appointees fearful of fending off - at tremendous financial and emotional cost - some future war crimes indictment under "universal jurisdiction," but so too are the thousands of brave young men and women in national service who are risking their lives for $60K/year to carry out critical missions that their superiors have ordered them to undertake.
Goldsmith stresses that American giants of war leadership like Lincoln and Roosevelt never had to worry about such nonsense. The upshot to "lawfare," Goldsmith writes, is that lawyers have been elevated to an unprecedented level of influence and responsibility in the present conflict. "[N]ever in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11. The lawyers weren't necessarily expert on al Qaeda, or Islamic fundamentalism, or intelligence, or international diplomacy, or even the requirements of national security. But the lawyers - especially White House and Justice Department lawyers - seemed to 'own' issues that had profound national security and political and diplomatic consequences." Needless to say, this is not a good thing.
Second, Goldsmith chronicles his bureaucratic battles with, as he describes them, the sinister legal janissaries of the Bush administration. Strangely enough, in Goldsmith's retelling Attorney General John Ashcroft comes across as an avuncular "good cop." White House Counsel Alberto Gonzales is portrayed as genuine and likable, but intellectually limited and utterly dominated by Vice President Cheney's chief counsel and confident, David Addington, who Goldsmith puts forth as the eminence grise of Bush administration terror policy. Addington is described as the Sith warrior of the Bush administration; an almost superhuman force bent on expanding executive power and, Goldsmith would have you believe, subverting the republic itself. Clearly, Goldsmith's time in government was not pleasant and he has a serious axe to grind with Addington over it.
Third, Goldsmith is highly sympathetic to the challenges and obstacles presented to the current administration and seeks to elucidate how President Bush and future presidents could do a better job of circumventing the law and, when necessary, the Constitution. In fairness, none other than Thomas Jefferson has been quoted as saying: "A strict observance of the written laws is doubtless one of the high virtues of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."
So how should the president go about arrogating powers for which he has no official basis in constitutional law? Goldsmith contends that it is wise to consult widely and then just ask Congress for the extrajudicial powers sought. His main point of evidence is The Military Commissions Act of 2006 that granted the president more power over terrorism suspects than even his most zealous advisors had claimed before. The White House only sought Congressional approval after the Supreme Court ruling in the Hamdan decision had forced their hand. Goldsmith clearly sees this reluctance to include others and make policy a participatory process as the great legal shortcoming of the Bush administration. He is completely in concert with the policy ends and quibbles strongly over the means.
In closing, this book may appeal to energetic Bush-bashers and thoughtful foreign policy thinkers alike - albeit for different reasons.
Customer Rating:
Summary: An Honest Intellectual Conservative Dumped by Bush Radicals
Comment: This book is good example of how not even intellectually honest conservative could survive the radical ideology of the Bush Administration. Jack Goldsmith lasted only 9 months as head of the Office of Legal Counsel (OLC) before having to resign.
Goldsmith took office in October 2003. His time in office, though brief, was spent thinking and opining about some of the most complex wartime decisions about executive branch power any administration has ever encountered. Little did he know that people he considered to be fellow conservatives were actually radicals who cared nothing about the separation of powers and did everything they could to undermine it and shape legal opinions accordingly.
That is what all the debate today about a "unitary executive" concerns. The radicals maintained that there were no constraints on a President in wartime. Goldsmith, a real conservative scholar, knew otherwise.
Not many people know of the OLC, or its function and its influence within the executive branch of government (including me until I read this book). As part of the Department of Justice it addresses legal issues facing executive branch decisions. OLC legal opinions, if they approve an executive branch decision, all but confer immunity from prosecution for actions taken by government officials.
Prior to Goldmith's arrival, John Yoo, a friend of Goldsmith's but a radical in conservative's clothing, had already issued the famous "torture (interrogation) memos" of August 2002 and March 2003 under the auspices of the OLC. The CIA called them the "golden shield" and others in government referred to them as "get out of jail free" cards.
Goldsmith's description of Yoo's legal reasoning in authoring the interrogation memos (one for CIA and one for DOD) shows Yoo, not the law, to be an ass. Yoo, an alleged war expert still teaches at Berkeley. If Berkeley grants him tenure after this book, shame on it.
Goldsmith, in an unprecedented action, had to withdraw the memos and subject government officials to legal liability because of Yoo's unbelievably inept legal reasoning. He resigned the same day he withdrew Yoo's memo for the CIA, June 15, 2004. He was no longer welcome in the Bush Administration.
The main villain of the piece is David Addington, Vice President Cheney's (who else?) chief legal counsel. If Addington is a conservative, Genghis Khan was just a peaceful nomad passing through European cities. Addington's extreme legal views on presidential war-making powers held sway in an administration that was panicked after 9/11 and saw Congress and the courts only as obstacles to an effective anti-terror program.
Goldsmith, realizing there were limits on presidential power even in wartime had no chance against Addington's bullying influence. Typical of a radical, Addington's basic mantra was that if you oppose unlimited executive power you are not just wrong, you are a traitor.
Other issues that Goldsmith had to address that are of great interest are the concept of extralegality, a president's prerogative power, indefinite detention of suspected terrorists, rendition, and the Geneva Conventions.
The irony is that, like many conservatives, Goldsmith ends up relying on the actions of a liberal Democrat as the ideal for how to handle controversial issues. He does an excellent job of explaining how FDR used political craftsmanship to enlist Congress, the courts, and the public at large to back the expansion of his wartime powers. Goldsmith indicts the Bush administration for its radically opposite stonewall policy.
Though intellectually honest on legal issues, Goldsmith displays the same antiquated notions as other conservatives in politics. His references to "lefties" at Harvard, "hippies" in Boston (what? they were ad-men) and Scooter Libby falling into a "perjury trap" display a political naif at work outside his area of expertise. He does need stick to the law.
He is also less than forthright regarding the Iraq War. He does not even mention it until almost three-quarters into the book. It is an obvious sign that he is reluctant in having to admit that White House deception in getting us into that war made all further anti-terrorist actions by the administration suspect throughout the world, though he finally does.
Goldsmith's complaint that wartime executive powers have been hamstrung by legal restraints by congressional action after Watergate rings hollow. This is especially true when he concludes that all of the legal problems could have been avoided if the Bush administration had only cooperated with the other branches of government rather than acting in secret and unilaterally in its anti-terror efforts.
If anything, that conclusion makes it seem even more necessary to legally constrain an executive run amok.
Customer Rating:
Summary: Superb inside look at the early Bush administration's counterterrorism policies
Comment: The grand irony of the (early - pre-2004) Bush administration's counterterrorism policies, Goldsmith observes, is that although the Bush administration lawyers sought "to leave the presidency stronger than they found it", in fact they "seem to have achieved the opposite". The reason is simply that the American constitutional system really does have three branches of government. Although the judiciary in principle has little constitutional role to play in matters of war or foreign policy generally, the fact that the war on terror has been conceived by the administration as a global war - in which the whole world is the battleground, in which even American citizens on American soil could be named as enemy combatants and indefinitely detained solely on the say-so of the executive - ensures that the Supreme Court cannot be left aside.
The administration's tunnel vision has thus left it blind to the fact that, by seeming to go it alone and refusing to go to Congress for such things as limits, but also authority, to hold detainees at Guantánamo, or specific rules on interrogation that confine, but also legally protect, interrogators, the administration has tied itself in marriage to a far more exigent spouse - the Court. The message of successive detainee cases from the Supreme Court - Hamdi and Hamdan, particularly - has not so far been that the constitution forbids much of what the executive proposes to do. After all, most of this pertains to non- citizens detained outside the United States; and until the Bush administration's spectacularly overreaching legal theories blew up in its face, no one thought the constitution applied to them at all. The message is, rather, that the administration should seek Congressional assent for what it wants to do. The Court has signalled provisionally that it will accept at least some extraordinary rules in the war on terror - provided, however, that the political branches have together given those departures democratic legitimacy. The Court's limits, following the just argued Boumediene case, to what the political branches might do even together are not yet firmly drawn.
But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court - or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court's swing vote - that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.
The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability.
Yet any future institutional settlement for counterterrorism inevitably bumps up against the contradictory impulses of government officials who confronted Goldsmith on his entry into the OLC and impelled his departure not many months later. The Terror Presidency says repeatedly that government policy after 9/11 was Bush's instruction to the then Attorney General, John Ashcroft: "Don't ever let this happen again". For Goldsmith, every Presidency for the foreseeable future will be characterized by an "unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so". No matter what might get said in the course of an election campaign, a Democratic administration once in office, "will be even more anxious than the current President to thwart the attack". In order to act as aggressively as the spirit of the age demands, however, government officials in the CIA and elsewhere must have confidence that apparently authorized aggressive actions that turn out to be mistaken, unnecessary, excessive or cause collateral damage to innocents will not be judged after the fact by a different set of standards than those going in. The criminal laws now in place make it very difficult, however, for operational officers of government, whether in detention, interrogation, surveillance or other covert activities, to have such confidence. The criminal laws use vague terms such as "inhumane", "degrading" or "humiliating" that practically invite after-the-fact revisionism, creating legal uncertainties that become insurmountable obstacles to action. Congress and the administration, in the seemingly perverse desire to have it both ways - encourage action but have the option to prosecute it afterwards - refuse to be specific as to what is actually permitted and not. Operational officials therefore respond rationally to the disincentives to act created by legal uncertainty.
Understanding the raison d'être of the torture memos issued by OLC in 2002, prior to Goldsmith's arrival, is nearly impossible without understanding their relationship to the vagaries of these criminal laws. The role of the OLC for some fifty years has been to give authoritative advice to the executive branch on legality and constitutionality. As Goldsmith notes, of necessity its opinions are often secret and not reviewable by any court. This is not as strange as it sounds. It is a part of the executive's obligation to "faithfully execute" the laws; to do that, the executive must know what the laws are and what they mean - a function always delegated, however, to the Attorney General, constitutionally obliged to give advice on "questions of law when required by the President of the United States". In practice, however, this might easily tempt lawyers in the OLC to write tendentious briefs to justify what the executive already intends to do, under circumstances in which judicial review may not be possible.
The OLC has so far insulated its lawyers from pressure by the executive. In matters of national security law, those OLC opinions operate as immunity against criminal prosecution of officials who act in good faith even if, ultimately, wrongly. It is almost impossible for the Justice Department to prosecute an official when that same department's OLC has blessed the conduct. The torture memos therefore purported to define torture for purposes of guiding what the executive might lawfully do. From the standpoint of CIA agents and other officials, these opinions offered immunity for their actions if they acted in reasonable reliance on them. The OLC in 2002 offered opinions on the definition of torture that certainly fulfilled this function; but they did so in ways that Goldsmith could not sustain, drafted as tendentious and conclusory briefs.
Worse, they did so not within bounds of what actual administration interrogation policy might be - waterboarding, for example - but instead within the maximal legal bounds offering the most iron-clad protection possible against criminal liability for anything. Goldsmith says that he was not disturbed by the exploration of the outermost limits of the law against torture as such, but these memos had a purpose fundamentally different from simply setting out boundaries. They more or less authorized anything short of Saddam's infamous meat grinder, and then, for good measure, added that in any case the President was not bound by any of this. The memos were disastrous because they left the understanding that these hypotheticals at the outer orbits of law constituted a statement of the government's actual policy proposals. Goldsmith observes that although the charge is frequently made that the Bush administration is "lawless", it is better understood as the most over-lawyered in US history.
Goldsmith was pilloried in press articles suggesting that he had authored the torture memos. Only later did it emerge that he had in fact withdrawn them. This has caused Goldsmith to be treated in the media as a kind of hero, a whistle-blower, though Goldsmith himself feels uncomfortable with "the Manichean tone . . . one sees so often when press and intellectuals criticize the Bush administration's attempts to balance liberty and security". His discomfort is evident from the fact that he is contributing his profits from this book to charity and that he has refrained from wholesale criticism of the Bush administration. As custodian of the OLC, Goldsmith believed he had a constitutional obligation to offer opinions that were not merely briefs in support of a preordained position. Withdrawing the torture memos also meant, as he well knew, withdrawing immunity upon which mid-tier government officials and agents had relied in good faith. Goldsmith's exit from government was not on account of his being fired; indeed, the Attorney General or the President could have overruled him and did not. No one stopped Jack Goldsmith from withdrawing the torture memos; but having "reversed or rescinded more OLC opinions that any of my predecessors", he writes, many people "lost faith in me. What else might I withdraw and when?"
Many people believe that the terror threat is overrated, the problem is to "manage" rather than defeat it. Goldsmith acknowledges this emerging view, and while rejecting it does not seek to refute it. America will live the Terror Presidency, Goldsmith says, with its dense moral ambiguities unfolding deep within a democracy's many necessary bureaucracies and institutions. The moral uncertainties, lest anyone mistake his meaning, are captured with brutal precision by Goldsmith's own last words on the torture memos:
"Some people have praised my part in withdrawing and starting to fix the interrogation opinions. But it is very easy to imagine a different world in which my withdrawal of the opinions led to a cessation of interrogations that future investigations made clear could have stopped an attack that killed thousands. In this possible world my actions would have looked pusillanimous and stupid, not brave."
(This is taken from my review of this book in the Times Literary Supplement, December 24, 2007.)
Customer Rating:
Summary: An appreciated look into governement and The Bush Presidency.
Comment: I thank Mr. Goldsmith for sharing his experience in the Bush Presidency. The account was informative on the workings of government and the men involved. Well done!
Customer Rating:
Summary: Where are the "good guys?"
Comment: In the book "The Terror Presidency" by Jack Goldsmith, the author gives the best reasoning for allowing torture that I have ever seen. He has also written opinions that give the widest latitude to the government to suspend habeas corpus and trial by jury. Mr. Goldsmith is a conservative lawyer and a college professor, according the book's jacket. (Obviously not of the "originalist" school of thought since it is clear the makers would be appalled by these opinions which are exactly the opposite of their intentions.) Mr Goldsmith's idea is to stretch the Constitution as far as possible in order to deal with the danger of terrorism.
There are other opinions that, according to Mr. Goldsmith, are necessary for the United States. For instance, he states that the US should never recognize the International Criminal Court and uses Rumsfeld's explanation that weak nations could use it to protect themselves against powerful nations. The current administration calls the use of laws as a substitute for "traditional military action," "Lawfare."
One hardly knows what to say to these logical arguments. They certainly do not agree with the notions about this country that I learned at my father's knee. He taught me that we were a nation of laws. The poor and the weak were as important as the rich and the strong. I can't imagine that the founding fathers would say use of military action is preferable to using the courts.
There has been a lot of conversation about using torture "in an emergency." The only rule a civilized nation should have is that torture is illegal period. If one of our agents gets hold of someone who is planning a terrorist attack and knows in his heart that torture would uncover the plot, that agent should be willing to go to jail for ignoring the law. His sentence would likely be short if this torture saved a lot of lives. Civil disobedience to save the nation should also mean taking the penalty for that disobedience. Think how many people have sacrificed their very lives for this country. Secret agents presumably are willing to put their lives on the line for their country.
The depressing thing is that we used to be the "good guys." In the past, if our government was doing something shameful, it tried to keep it a secret. These days we don't even try to hide it.
Everyone should read this book even if it is depressing. Mr. Goldsmith seems to have no clue that he has written a treatise on how many angels can dance on the head of a pin and completely ignored morality, principle, law, and the Founding Fathers.
|
|
|
|
|
|
|
|
|
