Friday, September 07, 2007

"Fresh Air" [and Bill Moyers] on Executive Power and the Department of Justice

Marty Lederman

Fresh Air aired interviews in the past couple of weeks with --

Don Ayer, former Bush 41 Deputy AG, on what the next AG must do to undo the damage at DOJ.

Charlie Savage, who just posted here about his excellent new book.

Jack Goldsmith, on his invaluable new book, along with a remarkable account of the Ashcroft hospital story (which is not in the book). IMHO, this is a terrific interview -- both the Qs and the As.

Another excellent interview with Goldsmith by Bill Moyers.


The NPR interview of Goldsmith reminds me of their interview of Suskind. Both authors were measured and balanced as they swatted down the insinuations in the loaded questions of the interviewer such as the slanderous nonsense that Addington and the other WH personnel could not wait for the next al Qaeda bombing of America to establish some sort of fascist legal structure.

Interestingly, Goldsmith apparently saw the same intelligence reports as the others and observed a very real threat. He also appeared to have no problem with the policies in the MCA and the recent FISA reform nor did he contend that the most if not all the interrogation methods being used were unlawful.

Where Goldsmith disagreed with Addington and much more with Yoo was over the powers of Congress to affirmatively limit the President in a war. Apart from portions of the Yoo memo, Goldsmith does not attack the others' legal opinions as categorically wrong. Rather, he simply came to a different conclusion where to draw the line when there were no guides.

Refreshingly, Goldsmith admitted that he was "desperately unhappy" about some of his own legal conclusions because they tied the President's hands in ways that Goldsmith thought would be dangerous. He thought the vague criminal laws placed the CIA and other agencies in impossible positions while trying to defend the country. However, he also wanted to give the President his honest interpretation of the law.

Fascinating stuff.

The most striking piece of information in all of the recent Goldsmith interviews emerged in an interview with Terry Gross broadcast yesterday on NPR. At minute 3:38 into the interview, we hear the following exchange [my transcription and emphasis]:

Gross: Another sentence that has been quoted a lot from your book, you write that during a tense meeting at the White House in February 2004, in referring to the FISA Court, the court that has to approve warrants related to the Federal Intelligence Surveillance Act, Addington said to you "We’re one bomb away from getting rid of that obnoxious court."

People are interpreting that that he just couldn’t wait for the next bomb so that they could get rid of the FISA court. How do you interpret what he meant by that?

Goldsmith: I don’t think that’s quite an accurate interpretation. I think that the gloss I would give is that he certainly did not like the FISA court. He thought that the entire FISA structure that required the commander in chief to go to a court to get a warrant to find out where the enemy was- He thought that was invalid and an unconstitutional infringement on the President’s power. And he believed that FISA was constraining the President in a way that may get a lot of people killed, and I think what he meant by that is that when the next attack comes, and the attack is attributable to a legal system that constrains the President, we’ll get rid of that legal system.

For the first time, we have a clear description of the controversy over The Program. Goldsmith notes that Addington's concern was the requirement to go to the FISA court for a warrant "to find out where the enemy was".

Doesn't this indicate they were likely acquiring information without regard to location of the communicator? Sounds like Goldsmith wanted FISA warrants to cover the acquisition of Domestic info...?

I found two segments of Goldsmith's interviewed by Terry Gross on NPR especially interesting:

1) At one point (at about 11:30) he addressed his differences with John Yoo over sweeping assertions Yoo made at the conclusion of a famous OLC opinion Sept. 25, 2001. It said:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

Although Goldsmith agrees with much of body of the opinion, he finds the conclusion gratuitous and ill-founded. He told Gross:

The thrust of that opinion is about the president's power to thwart terrorist attacks ... on his own without any affirmative authorization from Congress. And I certainly agree that the president has very, very broad powers to do that. ...

Near the end of the opinion ... it shifts to different issue -- not about whether the president can act in the absence of congressional authorization, but whether the president can act in the face of congressional constraints. And that sentence is a good example of the extraordinarily overbroad assertions of power. It moved from saying that the president can act against terrorists without affirimative authorization from Congress to saying that the president can act against terrorists and do whatever he wants, regardless of congressional restriction. And it was a throwaway paragraph at the end, and it didn't have any citations.

Goldsmith, of course, is following precisely the distinction that Justice Jackson made in his bedrock Youngstown concurrence. That is the core of the constitutional difference between Yoo, who fundamentally dismisses Jackson's Youngstown framework, and mainstream conservatives like Goldsmith who embrace it.

2) At another point in the NPR inteview (about 22:00) Goldsmith criticizes the "tendentious tone" of some of Yoo's OLC opinions, in this case the famous torture memos:

Tone is really important. ... It's very important for the Office of Legal Counsel to take a very detached attitude toward legal interpretation, and to appear to take a very detached attitude toward legal interpretation.

And this opinion, as one senior official in the Justice Department put it to me, wasn't the usual detached OLC analysis, but rather, as this person put it, read like a bad defense counsel's brief. It basically read as if it were stretching to find ways to immunize people who were going to be doing very, very aggressive interrogations. And instead of doing a kind of neutral detached analysis of the meaning of torture statute -- and in parts it did try to do that -- it had the discussion about defenses to prosecution, and self-defense and the like that seemed extraneous to the interpretation of the torture law.

[Contrary to the spin being spun in some quarters, the interviewer did not exactly have to drag these criticisms out of Goldsmith. After all, however much he is at pains to sympathize with the patriotic objectives of the Bush administration, and concurs on some issues, he did have some very serious disagreements over the way the law was treated there.]

I will give Terry Gross and NPR a small measure of credit. Their slant is palpable, but Gross did briefly touch upon Goldsmith's theme of the unprecedented legal obstacles to war fighting in her last question and NPR (unlike 60 Minutes, CBS News and the NYT) does not edit out the content provided by a subject which does not fit the theme of their commentary posing as news.

Some of the most interesting news showing the progress of the war effort comes out of NPR interviews with the actual participants that would be generally edited out or simply not covered by the major media outlets.

drational said...

For the first time, we have a clear description of the controversy over The Program. Goldsmith notes that Addington's concern was the requirement to go to the FISA court for a warrant "to find out where the enemy was".

Doesn't this indicate they were likely acquiring information without regard to location of the communicator?

Ummm, yes. The TSP as it has been reporting concerns the monitoring of telephone numbers captured from the enemy to determine if heretofore unidentified enemy may be using these numbers. The reason FISA represents such an obstacle to such intelligence gathering is that there is generally no individualized probable cause that any particular number is being used by the enemy. The TSP is all about developing that probable cause.

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