November 12, 2007  ·  Lessig


Jack Goldsmith is a friend from law school. We clerked together at the Supreme Court. We have remained friends since. When he went to the Justice Department to head the Office of Legal Counsel (read: the coolest possible job in the world of public lawyers), many of us were anxious. The kind of legal storm that was/is the Bush Administration is not a place one wishes on friends.

The Terror Presidency is the story of Jack’s time at OLC. It is a book that makes me very proud — of the ideals of my profession, and of my friend. You’ve no doubt heard the sexy bits — orchestrating the reversal of OLC on the torture memos, the scene at the hospital with Ashcroft, etc. Those alone make the book worth the read. Indeed, the new attorney general said he “couldn’t put it down.”

But the two parts that grabbed me were these:

(1) The hardest part of this story for those of us who believe in executive oversight (and believe that the Constitution means what it says in Article I, Section 8, Clause 18) is the extraordinary account of the costs of legalizing (as in subjecting to law) much of the work of the CIA and Defense Department. Long after this administration is gone, careful souls will need to understand how to overcome the debilitating costs of this sort of legal uncertainty. The simple answers (repeal the law; expand the regulation) are too simple. But Jack’s account interestingly flipped my understanding of the struggle inside the administration. It is hard not to see that the problem was often not a lack of law, or respect for the law, but an over-abundance of law. (We) Liberals, happy to have clear and plain speaking from an inside-conservative, should not be so quick to overlook this critical point of the book.

(2) There is something unavoidably fantastic about watching up close law have its independent effect. Most go into this profession believing in its integrity. Many find it too hard too often to see or feel that integrity. This is a book about that integrity. As anyone close to this subject knows, it is always possible to bend the law to some political end. It takes a kind of courage, or at least, self-respect, to resist that bending. Jack’s story here is compelling, not only because he doesn’t attribute the bending to illicit motives, but also because it makes clear just how hard it is to feel the ground on which one needs, always, to stand. If our students understood only a fraction of this, it would make enormous difference.

I am proud of this friend.

  • HH

    Unfortunately, Goldsmith’s successor, Daniel Levin, was strong-armed into inventing a pernicious “prolonged harm” test for torture that is now in the MCA statute. This monstrous creation is what allowed Mukasey to say “If waterboarding is torture…” Levin’s test requires that a torture victim show proof of (undefined) prolonged harm in order for abuse to be declared torture. Poor Levin was eventually kicked out of the DOJ by Gonzales because even this wretched opinion was not servile enough to Bush’s demand to torture.

    A thorough demolition of Levin’s argument can be read here:

    Prolonged Mental Harm: The Torturous
    Reasoning Behind a New Standard for
    Psychological Abuse

  • John A Arkansawyer

    I picked the book up today when I took my daughter to storytime at the library, and just finished it–a quick read, and an interesting one. (The visit to the hospital isn’t in it, I think–did you happen to get an advance copy?) It’s a slender book, a nice fusion of history and first-person narrative.I’m appreciative that he actually makes explicit arguments which can be considered and (in this case, by me) rejected.

    It felt odd to scan the bibliography and not see Chadwin’s The Warhawks. I read that maybe ten years ago, and I’ve been using is as one of my reference points on Roosevelt and the entry into WWII ever since. Now I’m wondering whether there’s some reason that book doesn’t get cited. I’d hate to someday be compared to David Addington, whose “command of these issues…was often idiosyncratic.”

    Not specifying the actual techniques for which he found justification is the greatest flaw in the book. He gives could defenses for all the things he does which he displays in full, but here, he’s silent. That’s not right.