Mrs. Ashcroft's Tongue-Wagging, and Other Tales from the "Unitary" Executive

Marty Lederman

As most of you know, Jack Goldsmith is publishing a book this month (perhaps as soon as this week) entitled "The Terror Presidency," about his tenure as head of OLC from October 2003 to June 2004. It's a great read, confirming much of our speculation on this site (such as this) and providing many more interesting details, as well. Jack's principal objective, however, is not merely to provide an historical account, but also to argue for a very different Executive posture toward Congress, the public and the courts. I guarantee that almost everyone who reads the book will find something in it to cheer . . . as well as something that will infuriate them. It will, at the very least, instigate plenty of much-needed discussion, and debate, both within and outside the Executive branch.

Jeff Rosen has a preview this coming Sunday in the New York Times Magazine. The anecdote he recounts that will undoubtedly dominate the immediate headlines is this one:

Suddenly, Gonzales and Card came in [Ashcroft's hospital] room and announced that they were there in connection with the classified program. "Ashcroft, who looked like he was near death, sort of puffed up his chest," Goldsmith recalls. "All of a sudden, energy and color came into his face, and he said that he didn't appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn't the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed."

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. "At that moment," Goldsmith recalled, "Mrs. Ashcroft, who obviously couldn't believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly."

Rosen also has several interesting details that Goldsmith recounts about David Addington and the Vice President's shop, such as this one, concerning the remarkable way that they circumvented FISA before Goldsmith came aboard:

[Goldsmith] shared the White House’s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004. [ML: Well, one bomb or a Democratic Congress willing to drive a truck through FISA at the merest suggestion that they will otherwise be blamed for the next bomb. Which sort of proves one of Goldsmith's main points, which is that a President (his model is FDR) can be very effective and influential, and can even effect a tempering of the law, without secretly ignoring laws and trying to disempower the courts.]

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: "They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations," he writes. Goldsmith first experienced this extraordinary concealment, or “strict compartmentalization," in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.'s inspector general to see a copy of the Office of Legal Counsel's legal analysis supporting the secret surveillance program. "Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department's legal analysis of what N.S.A. was doing," Goldsmith writes.

I should note in closing that although I think Jack's book is very important and instructive, not surprisingly there are some points on which we disagree. One such point is the effect of Jack's brave December 2003 repudiation of John Yoo's March 2003 opinion. Yoo's opinion had given a green light to the Pentagon to use "enhanced" interrogation techniques, and to ignore legal constraints such as the Uniform Code of Military Justice. Jack recounts (Rosen's words) that "he could immediately tell the Defense Department to stop relying on the March opinion, since he was confident that it was not needed to justify the 24 interrogation techniques the department was actually using, including two called 'Fear Up Harsh' and 'Pride and Ego Down,' which were designed to make subjects nervous without crossing the line into coercion."

Jack is referring here to the 24 techniques listed in Rumsfeld's April 16, 2003 memo. Had the Pentagon complied with that memo to the letter, we would have largely avoided all of the atrocities that occurred in interrogation rooms in Iraq and Afghanistan in 2003. But as I have attempted to explain previously -- see here, here and (especially) here, as well as Jane Mayer's indispensible article -- that Rumsfeld memo was a whitewash. In fact, at the same time that Rumsfeld and Jim Haynes were drafting that memo for public consumption, they (and/or others at the Pentagon) were also secretly completing the DoD "Working Group Report" dated April 2d, which incorporated John Yoo's analysis virtually verbatim. The Report instructed its readers that legal norms such as those in the Torture Act and the UCMJ could be disregarded on such grounds as "necessity" and the Commander in Chief's constitutional authority; and that Working Group Report was briefed to William Miller on his way out to Iraq. There is, therefore, good reason to believe that the abuse that occurred in Iraq and Afghanistan throughout 2003 was directly attributable to John Yoo's March memo; that Rumsfeld and crew approved of it; that the techniques the Pentagon was "using" in 2003 were hardly limited to those in the April 16th Rumsfeld memo; . . . and that therefore Jack Goldsmith's December 2003 repudiation of John Yoo's memo dramatically changed the legal playing field at DoD, and had a profound effect on its interrogation techniques.
Posted 8:36 AM by Marty Lederman [link]