Former OLC chief Jack Goldsmith reflects on post 9/11 legal opinions

November 13, 2007Duke Law News

November 13, 2007 -- On taking the helm of the Office of Legal Counsel (OLC) in October 2003, Jack Goldsmith found some of the legal memoranda written by his predecessor relating to the war on terror so “deeply, deeply flawed,” that he had no choice but to reconsider them. It was a controversial decision in an office that operates on the principle of adherence to precedent, he told a capacity Duke Law audience on Nov. 12. In addition to containing legal errors, these opinions ― including the now-infamous “torture memo” ― were far too broad in scope, he said.

“I worried that these super broad opinions would be relied on to justify all sorts of acts other than the ones that [were] approved,” said Goldsmith, who resigned from the OLC, which advises the president and attorney general, in July 2004, on the day he withdrew the torture memo.

The Henry L. Shattuck Professor of Law at Harvard Law School and author of The Terror Presidency: Law and Judgment Inside the Bush Administration, Goldsmith made it clear in an interview with Christopher Schroeder, Duke’s Charles S. Murphy Professor of Law and Public Policy and another former OLC chief, that he was sympathetic to the administration’s goals in fighting the war on terror, but felt that the crisis atmosphere following the Sept. 11 terrorist attacks led to a faulty procedure.

OLC lawyers asked to determine the legality of counterterrorism policies were under pressure to “push the law as far as it would go,” as the administration perceived a very real threat of another terrorist attack, he said. Procedural shortcuts, too, undercut the quality of the legal work.

Lacking the benefit of adversarial briefing or the “disciplining effect of a dissent,” OLC normally seeks input on the content of its decisions from the relevant agencies, such as the State Department or the National Security Agency, Goldsmith explained. Such deliberation and consultation likely would have reduced some of the “excesses” of the questionable opinions, he said, but this did not take place because the legal contours of the war on terror were worked out in an atmosphere of “corrosive” secrecy.

The fear of another terrorist attack ― supported by threat reports delivered in daily White House briefings ― can have an effect on decision-making, said Goldsmith. “It has a natural impact on lawyers … operating in the gray areas of the law, when principles aren’t crystal clear, when on the other side of the balance sheet there is a small chance a lot of people will be killed. So you combine fear with the fear of not having good information or the tools to stop it and the responsibility that the executive naturally feels for national security, and it created a panicked or paranoid atmosphere inside the government that led them to push as aggressively as they could along every dimension.”

Lawyers, said Goldsmith, are shouldering “enormous responsibility” in the war on terrorism for establishing the limits of counterterrorism policy largely because those charged with implementing policy fear criminal sanction. “It creates all kinds of pathologies, some of which resulted in the controversial opinions from the OLC,” he said. “I don’t think it’s the lawyers’ fault. In some sense, it’s just a natural response to the legalization of the executive branch,” he said, adding that rigorous ex post facto review would be a more effective way of holding the executive branch accountable for its policies and actions.

The unilateralism of the Bush administration in its approach to the war on terror has ultimately weakened the presidency, said Goldsmith.

“The president has suffered defeats in the courts and is subject to almost paralyzing litigation along … many dimensions,” he said. “I’m confident that the court defeats and litigation would have been minimized had the president gone to Congress earlier and worked with Congress on all the areas that are the subject of litigation.”

The “relentless unilateralism” has also resulted in extraordinary distrust of the presidency in Congress and in the courts, added Goldsmith. “It will be very hard for this president or a future administration to get that trust and credibility back.”

Jack Goldsmith’s appearance was sponsored by the Center for International and Comparative Law.
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