Ex-Official Speaks Against Key Bush Strategies

Jack Goldsmith, a former official of the Bush Justice Department, testified Tuesday that he disagreed with the administration's legal justifications for torture and domestic surveillance.

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It wasn't exactly Oprah, but today, the Senate Judiciary Committee became a kind of a book club. The guest witness was Jack Goldsmith. His memoir is called "The Terror Presidency." It illuminates some of the most dramatic Bush administration controversies that Goldsmith witnessed from his post within the Justice Department.

NPR's Ari Shapiro reports.

ARI SHAPIRO: A few years ago, Jack Goldsmith was vilified by the left. Faculty and students at Harvard protested his appointment to the law school. But now that he's had a chance to tell his own story, he's become something of a hero to the crowd that thinks the Bush administration has overstepped its bounds.

Goldsmith used to run the Justice Department's Office of Legal Counsel, or OLC. His job was to tell the administration what it can legally do, on everything from interrogation practices to domestic spying. Goldsmith told the Judiciary Committee today that OLC leaders have a strong tradition of deferring to their predecessors opinions. But when he arrived at the office in fall of 2003, he found the so-called torture memos authorizing extreme interrogation techniques.

Mr. JACK GOLDSMITH (Author, "The Terror Presidency"): The language was so overbroad and unnecessary and extreme that I didn't know what else might be done in the name of the (unintelligible) that I didn't know about that would later be thought to be okay by the Justice Department.

SHAPIRO: Goldsmith decided he had to withdraw that memo. He had a similar reaction to the legal justification for the warrantless wiretapping program.

Mr. GOLDSMITH: It was the biggest legal mess I've ever encountered.

SHAPIRO: Goldsmith said he could not find legal support for some aspects of the program. It was so secret that not even Deputy Attorney General James Comey knew its details. Goldsmith insisted that the White House briefed Comey and then Goldsmith, Comey and Attorney General John Ashcroft all agreed that they could not let parts of the program continue. They refused to reauthorize it. At this point, Ashcroft felt critically ill, Comey became acting attorney general, and two top White House officials went to Ashcroft's bedside to ask him to override Comey and reauthorize the spying program.

Goldsmith was there in the hospital room, and he told the committee today that he believes the president ordered the hospital visit.

Mr. GOLDSMITH: My recollection is the same as Mr. Comey is that he recalled that it was the president, and it's my recollection as well. But I'm not 100 percent certain about that.

SHAPIRO: The bedridden Ashcroft refused to overrule his deputy. And under the threat of a mass Justice Department resignation, President Bush agreed to change the program. As Goldsmith describes it, the White House pushed hard on all of these issues because everyone was plagued by a constant fear of another terrorist attack.

Mr. GOLDSMITH: And if that had happened, I would be here on this green felt table and people will be saying, I worried; the people would be saying, you know, you, you legalistic, pin-headed lawyer, you. You, look, you told the president he couldn't do something, and a lot of people got killed.

SHAPIRO: On one controversy after another, Goldsmith described the White House inching to the very edge of the law and sometimes straying into areas of questionable legality. One problem from Goldsmith's perspective is that the White House kept its legal opinions secret from almost everyone who could've given important feedback. Goldsmith says that could have just been because the White House was afraid of leaks. But sometimes, as in with the domestic spying matter…

Mr. GOLDSMITH: They did not want the legal analysis scrutinized.

SHAPIRO: Committee Chairman Patrick Leahy suggested that's because the analysis wouldn't withstand scrutiny. Leahy also pointed out that the law governing domestic surveillance has been amended many times since it was passed in 1978. He asked Goldsmith.

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): Did you believe that it would have been possible to accomplish what the administration wanted to do legally if they had been willing to work with a FISA court in Congress?

Mr. GOLDSMITH: Yes, sir. I do.

SHAPIRO: That, Leahy said, is the tragedy of the whole thing.

Ari Shapiro, NPR News, Washington.

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