Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"

Sandy Levinson

Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife:  The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic.  Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar.  The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself.  Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE:  A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea.  Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief."  In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA.

With regard to the White Paper's relianceon "imminence" as a justification for targetted assassination, I think it'w worth noting that the ABA rules of professional conduct, which in many states permit lawyers to disclose confidences when "imminent" danger is presented by a client, are interpreted far more restrictively.  That's not meant to be a knock-down argument.  Back in the days when I taught professional responsibilty, I suggested that a corporate attorney who realized that his clients were violating certain environmental laws and therefore posed a danger to people, even if not "imminently," should still feel at least a permission, and perhaps even a duty, to disclose.  Consider the West, Texas explosion in this regard, where the company storing ammonium nitrate seems, on the face of it, to have engaged in flagrantly negligent, if not outright criminal, misconduct.  This simply illustrates the potential value of a genuine public debate about the meaning of "imminence" and whether we are/should be willing to apply the same definitions to fat-cat lawyers for banks or chemical companies and to suspected terrorists. 
Posted 4:04 PM by Sandy Levinson [link]