Former Justice Insider, an Unlikely Civil Lib Hero, Details Battles Over Torture and Eavesdopping

Civil libertarians spent years castigating Attorney General John Ashcroft for covering up Lady Justice's bare breasts and describing critics of the Patriot Act as "scaring freedom-loving people with phantoms of lost liberty."

But earlier this year, Ashcroft became an unlikely hero to the same, after former Assistant Attorney General James Comey told Congress about the Intensive Care Showdown, where Ashcroft rose from a post-operational stupor to lecture then-White House counsel Alberto Gonzales and chief of staff Andrew Card on the fine points of wiretapping and the law.

Since that disclosure, another unlikely hero has emerged: Republican Justice Department appointee, Jack Goldsmith -- a man who decries the title "civil libertarian" and describes the use of international law to prosecute Augusto TK Pinochet and Henry Kissinger for human rights offense as "lawfare" practiced by weak countries against the strong.

Goldsmith took over the Office of Legal Counsel, a powerful arm of the Justice Department whose opinions give legal cover to government programs -- including the most secret ones -- and promptly found himself reversing the legal opinions of his friend John Yoo. Those overturned opinions included the infamous "torture memo" and the legal backing for the government's secret warrantless spying program.

In his soon-to-be published book "The Terror Presidency", Goldsmith describes how in his short tenure, w he took the extraordinary step of overturning OLC opinions from the same administration, earning him the enmity of many in the White House. Most notably, Goldsmith infuriated Vice President Dick Cheney's lawyer, David Addington, who by the best account wields extraordinary power and excels at bureaucratic fights.

Addington, who Goldsmith describes as the architect of the president's warrantless surveillance program, consistently fought to expand the power of the presidency by hewing to secrecy and successfully fighting internal advice to ask Congress to bless the
Administration's detainee and surveillance policies.

After resigning in 2004, shortly after winning the battle to scale back the Administration's wiretapping program, Goldsmith became a
Harvard law professor. And after the New York Times exposed a portion of the government's secret program in December 2005, Goldsmith became ensnared in the Justice Department's leak investigation.

Despite telling FBI investigators about his one conversation with
New York Times reporter Eric Lichtblau, one of the co-authors of the wiretapping report, where no confidential information was spilled
(according to Goldsmith), Goldsmith was handed a grand jury subpoena.

What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales's
Justice Department that had issued it. As Doe and Smith knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then—White House Counselor Gonzales, David Addington [VP Cheney's lawyer], John Yoo and others had created in designing the foundations of the Terrorist Surveillance Program.

It seemed rich beyond my comprehension for a Gonzales-led
Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program, I told the two wide-eyed FBI agents in Harvard Square. They understood what I was talking about but Doe nervously said that he legality of the foundations fo the program was "outside [their] jurisdiction."
(emphasis added)

That sentence is extraordinary. One can't help but read that sentence to mean that Goldsmith is flabbergasted that the Justice
Department is after him for illegal activity, when he knows for a fact that the current Attorney General was deeply implicated in a program that Goldsmith himself believed was illegal.

Not that Goldsmith is a fan of the New York Times.

I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by [New York Times reporter James] Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done "great harm" to the nation.

Goldsmith also believes the nation's anti-terrorism spying laws, the Foreign Intelligence Surveillance Act, is too strict for the modern age. But he's no fan of the Administration's tactics in dealing with their disagreement with the law:

But I deplored the way the White House went about fixing the problem. "We're one bomb away form getting rid of that obnoxious [FISA] court," Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004.

The Vice President's Counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on
FISA. He and the Vice President had abhorred FISA's intrusion on presidential power ever since its enactment in 1978.

After 9/11 they and other top officials in the administration dealt with FISA they way they dealt with other laws they didn't like:
they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.

My first experience of this strict control, in fact, had come in a
2003 meeting when Addington angrily denied the NSA Inspector General's request to see a copy of OLC's legal analysis in support of the
Terrorist Surveillance Program.

Goldsmith may not want to be lionized by civil libertarians, but he might want to take his friends where he can get them. He's certainly left with few friends in the White House, and probably has none left now that he's talking publicly.

His book, however, illuminates how lawyers and fear of them drive and cripple modern Administrations, and tell a powerful story about how this Administration's drive to restore the powers of the presidency have left it weakened and large swaths of the country deeply suspicious of the motives of President Bush.

See Also:

• Former Official's Account of Intensive Care Showdown Over Gov ...
• Cheney Blocked Promotion of Lawyer Who Questioned Wiretapping Program
• Former Official's Account of Intensive Care Showdown Over Gov ...
• Embattled Attorney General Alberto Gonzales Resigns
• What Was the Original Surveillance Program?
• Senators Ask for Special Counsel to Investigate Attorney General ...