Armed Democracy

The Terror Presidency

Law and Judgment Inside the Bush Administration

by Jack Goldsmith

Norton, 256 pp., $25.95

Jack Goldsmith was a first-term Bush appointee who, from October 2003 to July 2004, headed the Justice Department's Office of Legal Counsel. OLC provides legal advice to the president and the executive branch. Like his predecessors, including such luminaries as William Rehnquist, Antonin Scalia, and Theodore Olson, Goldsmith dealt with classified information and opined on highly sensitive legal issues. Necessarily for Goldsmith, many of his opinions dealt with the war on terrorism.

Goldsmith, it became known after he left OLC, withdrew several post-9/11 OLC opinions, including two on interrogation, which critics charged with supporting torture. In The Terror Presidency Goldsmith, now teaching at the Harvard Law School, recounts his labors on the job, the disagreements he had with others in the Bush administration, and his resignation.

As usual with a book by a former Department of Justice official, Goldsmith submitted his manuscript to the department for its review. Officials there told me that he was advised of his legal obligation not to disclose privileged information. They were also concerned that lawyers at the OLC might find themselves less willing to speak their minds for fear that a colleague might be, in effect, taking mental notes for a book. The upshot would be an Office of Legal Counsel less able to offer its best legal advice, a deprivation for any president.

Goldsmith, I am told, accepted some but not all of the "numerous" editorial suggestions made by Justice officials, evidently confident that he was striking the right balance. It's hard for an outsider to judge whether he did so or not, but it has to be noted that this book runs risks for a department whose importance in the war on terrorism is manifest, and whose finest traditions Goldsmith claims to respect. Even assuming that Goldsmith has not violated legal norms, is it really a good thing--is it seemly--for a former head of the Office of Legal Counsel to unbutton himself about the work he did for his clients, chief among them the president of the United States?

The propriety of writing a book like this is a question that inevitably comes to mind for those familiar with the Department of Justice. It is a fair question. Still, if you can set aside the matter of the book's seemliness, The Terror Presidency is not uninteresting. The title is unfortunate because Goldsmith is not contending, as some on the left do, that the Bush presidency threatens terror. Rather, Goldsmith uses "the terror presidency" generically, to mean that every presidency for the foreseeable future is going to have to deal with terror. Goldsmith has some important things to say about the difficulties President Bush has faced, and doubtless his successors will face, in combating terrorism, and the advice he offers them--ironically, not so much legal as political, and this from a lawyer who says that before he joined the Bush administration he was not very interested in politics--is worth mulling. But Jack Goldsmith's own story dominates the narrative.

Goldsmith might not have told his story but for a push from the press. In late 2004, toward the end of his first semester at Harvard, news stories were published associating him with the interrogation opinions, notwithstanding that it was he who had nullified them. Professors asked to comment on their new colleague faulted the school for failing to scrutinize Goldsmith's apparently nefarious work before it hired him.

But later, in early 2006, Newsweek published a story that painted Goldsmith quite differently--as "the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers." The story told "a quietly dramatic profile in courage," of how Goldsmith led other department lawyers in standing up to administration "hardliners" who held expansive views of executive power, chief among them David Addington, Dick Cheney's chief of staff; and how they fought to bring interrogation and other counterterrorism policies, including those involving surveillance, within the law, with Goldsmith withdrawing the two interrogation opinions.