Balkinization  

Tuesday, September 04, 2007

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.

Comments:

The anecdotes from this post are fascinating at a human level but also suggest the existence of a serious constitutional issue.

Lawyers within government have significant authority within government. Disputes or issues about legality that arise within government are not litigated in court. Instead, for most purposes, legal advice becomes the authoritative source of resolving the issue or dispute. Lawyers perform the role a court does when there are not (yet) other litigants.

The normative question of constitutional design is whether the accountability structures for lawyers adequately recognise this role and responsibility. Goldsmith's apparently forthcoming account suggests not. Old-fashioned notions of professional responsibility are increasingly difficult to maintain in the reality of today's world, let alone to rely on to ensure constitutionally responsible conduct within government.

The same issue exists internationally - as evidence by the controversy over the role of the Attorney-General in the United Kingdom in the Blair Administration.

(My experience of these dynamics in New Zealand led me to point to the accountability issues for all public office-holders, not just lawyers - see Matthew S. R. Palmer, “What is New Zealand’s Constitution and Who Interprets it? Constitutional Realism and the Importance of Public Office-holders” (2006) 17 Public Law Review 133-162 - at www.works.bepress.com/matthew_palmer/

Matthew Palmer
 

Does Goldsmiths book identify the legal dispute that led to the hospital visit?
 

At the risk of having Professor Lederman shut down another topical comments section for "not advancing the discussion," here are my two cents...

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.

Most of the interrogations which actually merited and usually received prosecution were perpetrated by CIA contractors, not the military under Pentagon guidance. The reserve MP unit abuses at Abu Ghraib were hatched by a few enlisted members under the guidance of a sadistic former civilian prison guard.

Prosecutions of the immediate officers in charge of this group have fallen apart for lack of evidence that they had anything to do with this abuse, nevertheless that they or the Pentagon instructed the perpetrators.

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; . . .

Your "therefore" causal chain lacks an important link. Do you have any evidence whatsoever that the few who actually committed prosecutable crimes during interrogations were provided copies of or instructed concerning the Yoo or Working Group memos - about which no one else seemed to be privy?

None of the Abu Ghraib defendants ever claimed that they were privy to such materials and I am unaware of any evidence that the CIA contractors had such access.
 

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."

This paragraph captures most of the emotive criticism of this meeting perfectly as well. Like Mrs. Ashcroft, most of the critics are absolutely clueless as to the program, its importance to the war effort or the law being discussed here. Rather, these "sweet critics" simply stick out their ignorant tongues.

Does anyone think perhaps there are some issues important enough to visit the boss on his sick bed? I do not recall any version of this story including a part where Ashcroft whined that he was too sick to talk. Rather, he forcefully gave his position and referred the White House to his acting AG for further discussions.
 

I'm trying to think of a clever way to make a pun on "the 24 interrogation techniques" and "the '24' interrogation techniques," but can't think of one.
 

Does anyone think perhaps there are some issues important enough to visit the boss on his sick bed?...

As Ashcroft said, he was not the "boss". The maladministration wanted a "do-over", though.

... I do not recall any version of this story including a part where Ashcroft whined that he was too sick to talk....

I don't recall anyone saying that Ashcroft was "too sick to talk". I think the dispute was as to whether he was "too sick to run his department" (and also as to whether he even wanted to overrule his deputy [and acting AG]).

... Rather, he forcefully gave his position and referred the White House to his acting AG for further discussions.

I think that Mrs. Ashcroft summed up the proceedings pretty well ... and FWIW, it wasn't "tongue-wagging" (as the post title says). Why Ashcroft should have been required to "forcefully g[i]ve his position" is something that only the maladministration and "Bart" can answer. They haven't yet, AFAIK.

Cheers,
 

arne:

The WH wanted Justice to sign off on a program and the AG is the "boss" of Justice.

I would not be doing my job as an attorney for the WH if some temporary AG appointee was refusing to sign off on a vital intelligence gathering program and I did not get a face to face with the actual AG to confirm that this was also his position - even if that meant visiting him at the hospital to the dismay of the sweet Mrs. AG.
 

The WH wanted Justice to sign off on a program and the AG is the "boss" of Justice.

At the risk of irritating the proprietors, I will repeat myself:

[Arne]: "As Ashcroft said, he was not the 'boss'." Then there's the little inconvenient fact that apparently Ashcroft himself wasn't too keen on Gonzo's idea, but it seems that Gonzo was hoping to roll him. Yet "Bart" thinks this is just fine. Kind of like going to visit little old ladies in nursing homes hoping for a POA, eh?

Cheers,
 

Bart:
"I would not be doing my job as an attorney for the WH if some temporary AG appointee was refusing to sign off on a vital intelligence gathering program and I did not get a face to face with the actual AG to confirm that this was also his position"

I have no doubt that if you were an Attorney for this WH you would call Ashcroft's Doctor and make sure he was extra doped on morphine before you showed up. And upon being thwarted, you would do exactly what Gonzales and Addington likely did- recommend that the illegal program be continued without DOJ signature.
 

arne:

"As Ashcroft said, he was not the 'boss'."

Get real.

Just because someone was temporarily subbing in, hardly means that Ashcroft was not the boss.

If Ashcroft disagreed with his sub and agreed with the WH, do you have any doubt that Justice would have gone along with the WH?
 

At the risk of being overly repetitive for those who bother to read what was previously written:

"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."

I'll say (and really need say) no more on this subject. If the intended recipient still doesn't get it, no point in belabouring it. Those that bother to acquaint themselves with the facts can figure out quite well what was going on. Those that can't, won't.

Cheers,
 

Glenn Reynolds has actually obtained and read the prepublication copy of this book and has read a far different take than was spun on the NYT.

Here is an interesting Goldsmith quote:

It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe. . . . Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001 this war has been lawyered to death.

Go to the link for some more.

This reminds me of the way the Dem press misrepresented the One Percent Solution.
 

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