Highlights from Prof. Goldsmith’s Senate Testimony

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On October 2, Professor Jack Goldsmith, former Assistant Attorney General of the Office of Legal Counsel, testified before the Senate Judiciary Committee on the topic “Preserving the Rule of Law in the Fight Against Terrorism.” Goldsmith answered questions from the committee on his role in the Bush Justice Department, and his views on security matters ranging from the FISA court to the terrorist surveillance program to Guantanamo Bay. Below, a few excerpts from his prepared testimony:

“[Domestic and international] laws, and the lawyers and courts that enforce them, serve many important goals. They are designed to prevent the extraordinary abuses committed by the intelligence community in the 1950s and 1960s when the community was largely unregulated by law and ignored by Congress – abuses that included experimenting with psychotropic drugs on unwitting human beings, and surveilling Americans who did nothing more than exercise their First Amendment rights to protest the Vietnam war or advocate civil rights change. The laws also aim to prevent wartime abuses by the military, and more broadly to take a stand against human rights abuses that were the scourge of the twentieth century. The laws also impose discipline and accountability on the sprawling intelligence and military bureaucracies. And they ensure that the Executive branch channels its wartime efforts in ways that maximize military effectiveness and minimize unnecessary harm. Compliance with these laws – and more generally with the rule of law in wartime – is critical to both domestic legitimacy and to the task of winning hearts and minds that is so central in modern warfare.

Many people believe that the Bush administration has been indifferent to these legal constraints in the fight against terrorism. In my experience, the opposite is true: the administration has paid scrupulous attention to law. The CIA has more than 100 lawyers; the Department of Defense has more than 10,000. Nothing of significance happens in the military or intelligence establishments without the approval of at least one lawyer, and often several lawyers. And the Department of Justice has probably written more legal opinions related to this war than in all prior American wars combined….Senator Graham’s comments [about cautious CIA lawyering after 9/11] reveal the national security lawyer’s central dilemma. The lawyer is criticized for being too cautious, for putting on the brakes, for playing it safe in a dangerous world. But he is in the same breath cautioned to give “sound, accurate” legal advice within the “confines” of the law. It is often difficult, and sometimes impossible, to do both. The laws that govern the intelligence agencies are usually written not in black and white, but rather in complex shades of gray. When intelligence clients ask lawyers whether aggressive counterterrorism actions are legal, clear answers don’t always leap from the pages of the Constitution or the U.S. Code. Often the best a lawyer can do is to lay out degrees of legal risk, and to advise that the further the client pushes into the dark areas of gray legal prohibitions, the more legal risk he assumes….Whatever its source, equivocal legal advice understandably frustrates the men and women asked to take aggressive action to protect the country, and who want to know whether what they are doing is legal or not, period….

Secrecy is obviously important in war. But too much secrecy can be counterproductive. In my opinion, the Bush administration was excessively secretive inside the Executive branch when it came to the production and receipt of legal advice. For example, the controversial interrogation opinion of August 1, 2002, was not circulated for comments to the State Department, which had expertise on the meaning of torture and the consequences of adopting particular interpretations of torture. Another example is the Terrorist Surveillance Program (“TSP”). Before I arrived at OLC, the NSA General Counsel did not have access to OLC’s legal analysis related to the TSP. FBI Director Mueller has noted that Attorney General Ashcroft complained “that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.” I too faced resistance from the White House in getting the clearance for the lawyers I needed to analyze the program.

This extreme internal secrecy was exacerbated by the fact that the people inside the small circle of lawyers working on these issues shared remarkably like-minded and sometimes unusual views about the law. Close-looped decisionmaking by like-minded lawyers resulted in legal and political errors that would be very costly to the administration down the road. Many of these errors were unnecessary and would have been avoided with wider deliberation and consultation….In my opinion Congress is too often inclined – on issues ranging from surveillance policy to detention policy – to push off the hard and controversial questions of counterterrorism policy to courts. Courts have an important role to play in policing the boundaries of counterterrorism policy. But judges are unelected and politically unaccountable, and lack expertise in intelligence or access to intelligence reports. They should not be forced to make the hard tradeoffs, or to address the difficult questions of institutional design, that modern counterterrorism policy requires. The Supreme Court “is only one branch of government, and it cannot, and should not, give broad answers to the difficult policy questions that face our nation today,” said Justice O’Connor, soon after her retirement, in a speech at West Point about legal issues in the war on terror. “[W]e expect Congress to step in,” she said, before noting, disappointingly, that “it has done surprisingly little to date to clarify United States policy towards prisoners in the war on terror.”

Two years after Justice O’Connor wrote these words, Congress has still done nothing of substance to resolve the novel and difficult issues surrounding the most consequential U.S. policy toward prisoners in the war on terror: the long-term military detention, without trial, of dangerous terrorists…. Justice O’Connor is right: The People’s elected representatives should not pass the buck on this hard issue to the judiciary…..One of the lessons of hindsight of the last six years is that just about every aggressive counterterrorism technique the Bush administration has employed could have been accomplished less controversially, and with more legitimacy, had the administration worked more closely with the other institutions of our government….

The President represents all the people, he directs the military and intelligence apparatus, and only he can act with the force, secrecy, and decisiveness needed to meet and defeat the enemy. But the President’s control over the military and intelligence agencies, his ability to act in secret, and his power to self-interpret legal limits on his authority create opportunities for abuse, and spark mistrust of his power, especially in war…. The first and most important step, I believe, is to recognize that the government – and especially the President – will have an extraordinarily difficult time managing these challenges, and to acknowledge that the institutions of our government can only address these challenges by working together in good faith.

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