Senate Panel to Hear from Ex-DOJ Official

Former Justice Department official Jack Goldsmith — a Bush critic — is due to testify before the Senate Judiciary Committee on the subject of civil liberties and the war on terror. A bid to discuss classified legal opinions at a separate closed-door hearing was denied.

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Today, we might learn more of the story of a Bush administration lawyer who defied the administration. His name is Jack Goldsmith. He's a former assistant attorney general, and today he testifies before a Senate committee. Goldsmith wrote a book called "The Terror Presidency." It illuminates fights with the White House over issues like torture and wiretapping. At one point, he says, almost the entire hierarchy of the department was prepared to resign if Goldsmith's legal opinion was ignored.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: In 2003, Jack Goldsmith was named to head the Justice Department Office of Legal Counsel - an office unknown to most Americans, but with enormous responsibilities and power, for it is this office that is charged with telling the president what the law is - in short, telling the president what he can and cannot do.

And when Jack Goldsmith took over the position, this longtime conservative found himself in a very uncomfortable spot. Reading over several of the recent opinions issued by his predecessor, Goldsmith realized that they were, in his words, deeply flawed.

Mr. JACK GOLDSMITH (Former Official, Justice Department; Author, "The Terror Presidency"): I realized immediately that I wasn't going to be able to stand by them.

TOTENBERG: The most prominent of the memos were the so-called torture memos, authorizing any interrogation tactic that fell short of causing the equivalent of organ failure or death. Another was a memo authorizing warrantless surveillance despite a federal law enacted specifically to provide court supervision. And there were others, yet unknown to the public.

Goldsmith won approval from Attorney General John Ashcroft for withdrawing and rewriting these opinions. But at the White House, there was huge pushback from the president's counsel, Alberto Gonzales and the vice president's counsel, David Addington.

According to Goldsmith, Addington was a particularly ferocious proponent of executive power.

Mr. GOLDSMITH: When I told the White House we could not find the legal basis for something they wanted to do, he said that the blood of the 100,000 people who die in the next attack would be on my hands as a result of that decision.

TOTENBERG: Goldsmith also concluded that some aspects of the warrantless surveillance program, as it was then in place, could not be undertaken. When acting Attorney General James Comey backed him up, then White House Counsel Gonzales and White House Chief of Staff Andy Card went to the hospital to try to get a critically ill John Ashcroft to override the decision. Ashcroft, who had turned over the reins of the department to Comey, refused. And with the top echelon of the department threatening a mass resignation unlike anything since Watergate, the president backed down and made changes to the program.

Goldsmith describes the hospital seen as dark, dramatic and bizarre, with Mrs. Ashcroft sticking her tongue out at the two White House officials as they turned their backs to leave.

Mr. GOLDSMITH: I thought it was amazing that they were there. I wasn't really sure then and I'm not completely sure now what they thought they would have accomplished if they had gotten the incapacitated attorney general to sign off.

TOTENBERG: But in the end, says Goldsmith, both the hospital scene and Addington's blood-on-the-hand slam are evidence of the twin pressures on everyone in the executive branch in the aftermath of 9/11 - pressures that will continue long after President Bush leaves office.

Mr. GOLDSMITH: On the one hand, they were really mortified of not doing enough to prevent an attack. And they really felt that if the president was constrained in a way that the Justice Department thought he needed to be constrained, then a lot of people were going to get killed. On the other hand - and also reflected in both those events - was their fear of law, fear of being prosecuted or investigated later.

TOTENBERG: Now, just in case you think that Jack Goldsmith is some squishy moderate, he is not. He believes that the president should have vast and unfettered power to fight terrorism. But he does not think the president can do it alone, and he says that, basically, the administration's obsession with secrecy prevented it from getting expert advise that would have prevented many of the problems that have since arisen.

Not only did the administration freeze out Congress and the courts, it froze out the military brass and even the inspector general charged with preventing abuse at the agency conducting warrantless surveillance. According to Goldsmith, in November of 2003, the National Security Agency wanted to conduct an audit of its surveillance program. And the agency inspector general met with Goldsmith to ask for the legal opinion on which the program was based.

Conducting an audit and seeing the legal rationale both seemed sensible to Goldsmith, but the vice president's counsel said no.

Mr. GOLDSMITH: David Addington bit his head off. And it was amazing to me, then and now, that something so important to the NSA's mission as the programs in issue were - the legal basis for them were kept from them.

TOTENBERG: Indeed, to this day, the legal opinions justifying various surveillance programs have not been shared outside of a tight circle. It is one of the bones of contention between Congress and the administration.

Goldsmith contrasts the way President Bush has handled the terrorism problem with the way President Roosevelt handled his need for more power in the period leading up to and during World War II. Roosevelt reshuffled his cabinet, bringing and leading opposition party members to run key departments. He consulted widely inside the administration, and also sought congressional approval.

Mr. GOLDSMITH: And even when he was skirting the law, he didn't do so in secret. He did so almost in public, to explain why he was doing what he was doing.

TOTENBERG: And, Goldsmith notes, Roosevelt avoided extravagant claims of executive power. The view in the Bush administration - says this one-time member - was that you should make the broadest claims possible so that the president wouldn't be shackled in the future. What the president should have done, contends Goldsmith, is what, to some extent, Mr. Bush has been forced to do by the courts in the last 18 months. He should have gone to Congress to get the power he needed.

Mr. GOLDSMITH: In a way, only the president can force the Congress to live up to their constitutional responsibilities and force them to take accountability for a position on these important issues.

TOTENBERG: The administration, however, continues to engender distrust by shutting out Congress. For today's hearing, for instance, the Judiciary Committee asked the Justice Department to allow Goldsmith to discuss his classified legal opinions at a separate close-door session, but the request was denied. The administration's unilateralism will have a profound effect on future presidents, argues Goldsmith.

Mr. GOLDSMITH: By their relentless - until recently - go-it-alone approach, they have caused mistrust and created errors that have had blowback effects on the presidency.

TOTENBERG: For Goldsmith, his time at the Justice Department was terrifying and exhausting. But with the portrait of Watergate Attorney General Elliot Richardson staring down at him day-after-day, Goldsmith says he learned a new appreciation for the law.

Mr. GOLDSMITH: I left the Department of Justice finding solace in the law, and actually sort of believing in the rule of law more than I did when I entered. I didn't always agree with what the law said, but the law really did work in the sense that it constrained the executive in time of crisis.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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