MICHAEL BARONE: War Is Too Important to Be Left to the Lawyers
Goldsmith, Jack
B O O K SI NR E V I E W 7 4 T H E A M E R I C A N S P E C T A T O R N O V E M B E R 2 0 0 7 WarIsTooImportantto BeLefttotheLawyers MEMOIRS OF PRESIDENTIAL appointees who have left...
...But overall this is a careful and thoughtful book by a conservative lawyer whomakesitclearthatthethreat of a terrorist attack imposes a tremendousburdenonresponsible officers of government, most of all the president...
...The Department of Defense was said to have mocked this brand of diplomacybycallingit"speaksoftlyandcarryabigcarrot...
...He expresses admiration for Addington's motives and, exceptforastrayreferencetohis"crazy ideas,"isamodelofcivildiscourse...
...But the opposite is true: the administrationhasbeenstrangledbylaw,andsinceSeptember11, 2001,thiswarhasbeenlawyeredtodeath...
...I leave it to readers to resolve the GoldsmithAddington argument...
...There is "an ever-present tension" in OLC, Goldsmith explains, between--and here he quotes Jimmy Carter's admirable attorney general, Griffin Bell--the "duty to definethelimitsofexecutiveactioninaneutralmanner B O O K SI NR E V I E W The Terror Presidency: Law and Judgment Inside the Bush Administration By Jack Goldsmith (W.W...
...B O O K SI NR E V I E W N O V E M B E R 2 0 0 7 T H E A M E R I C A N S P E C T A T O R 7 5 and the President's desire to receive legal advice that helpshimdowhathewants...
...NORTON, 256 PAGES, $25.95) Reviewed by Michael Barone Michael Barone is a resident scholar at the American Enterprise Institute and a senior writer at U.S...
...The 1970s ban on political assassinations famously helped to block the Clinton administration fromtargetingOsamabinLaden.TheCIAhasbecome sowaryofpossiblecriminalchargesthatithasrecommendedthatitsagentspurchaseliabilityinsurance...
...And he approved of much of administration policy.Hecontinuestobelieve,ashedidasalawprofessor, that the United States should not subject itself to the International Criminal Court...
...News & WorldReport.HeistheauthorofOurFirstRevolution andco-authorofTheAlmanacofAmericanPolitics...
...They know that thousands, perhaps tens of thousands, of people could die if theyfail.Oppositionpartypoliticians, judges, and critics in legal academe, Goldsmith remindsus,donotbearthisburden.Goldsmithdid...
...He believes that it was propertocalltheconflictwithalQaedaawarandthat it was legal to invade Iraq...
...He believes that the president has the power to detain enemy combatants, to deny them prisoner of war status, and to try them by militarycommissions...
...For months, United Nations Ambassador John Bolton had been fighting valiantly for a binding resolution in the Security Council that would include tough sanctions to pressure Iran to abandon its nuclear weapons program...
...The son of a Baltimore firefighter, John Bolton attendedboardingschoolbeforeearningascholarshipto Yale, which had been taken over by the anti-war movementbythetimehearrivedinthelate1960s...
...Where he disagrees with the administration is on thequestionofwhether,onparticularissuesliketheNSA terrorist surveillance program, it should "go it alone, in secret,"orseekauthorizationfromCongress.Goldsmith tended to favor the latter...
...Thereare, Goldsmithtellsus,10,000lawyersatthePentagonand more than 100 at the CIA...
...and Goldsmith, after a couple of White House interviews, was given the job...
...But they're something we should all keep in mind, not least the Democratic candidates who hope to succeed GeorgeW.Bush...
...OLCsinadministrationsof differentpartiestendtofollowOLCprecedent...
...HisWay CONDOLEEZZA RICE had once again capitulated...
...Theoverlawyeredwarisnotgoingaway...
...Not so with The Terror Presidency, by Jack Goldsmith, the Harvard Law professor who served less than a year as head of the Office of Legal Counsel in the White House.Naturallythepublisher'spressreleaseandthe firstpressaccountsfocusedonhisdisagreementswith administration policy...
...Duringasummerinternshipfor Vice President Spiro Agnew in 1972, Bolton got into a hotel elevator, and encountered none other than Frank Sinatra...
...Goldsmith was a friend of Yoo and admires his expertise and energy, but once at OLC regardedsomeofhisopinionsasgravelyflawedand,in contraventionofusualOLCpractice,reversedthem...
...Beyond demonstrating Bolton's cutting sense of humor,theincidentisillustrativeofhismountingfrustration after years of watching the permanent State Departmentbureaucracywrestcontrolofforeignpolicyawayfromconservatives.Inhisnewbook,Surrender Is Not an Option, he describes this period as one of the lowpointsofhiscareerintheBushadministration...
...IknewbeforeIreadthisbookthattheOfficeofLegal Counsel in the Department of Justice was an important agency,headedattimesbylawyersasbrilliantasWilliam Rehnquist,AntoninScalia,WilliamBarr,andTedOlson...
...B O O K SI NR E V I E W 7 4 T H E A M E R I C A N S P E C T A T O R N O V E M B E R 2 0 0 7 WarIsTooImportantto BeLefttotheLawyers MEMOIRS OF PRESIDENTIAL appointees who have left office in unhappy circumstances usually take the form of angry screeds...
...HewentontoYaleLawSchoolfollowing graduation, where he studied underRobertBork...
...UNFORTUNATELY,OLCseemstohavebeenindisarray in the months after September 11...
...But I didn't realize until I read this book how central its roleis.OLCisineffectthegovernment'slawyer:Ittellsthe various departments, including Defense and the CIA, whatitcanandcan'tdo,andinpracticethedepartments obey(especiallywhentheyareliabletocriminalcharges...
...But despite her tough rhetoric, the secretary of state continued to make unnecessaryconcessions.The idea was to pursue a policy of "carrots and sticks" toward Iran, but in the absence of any mechanism to administer "sticks," in reality, the policy was about offering "lots of carrots...
...He citesthelegislationCongresseventually passedonmilitarytribunalsandterroristsurveillanceinsupportofhiscase.But he also tells us enough about the other side's argument--that the administration needed maximum flexibility to act right now--to allow readers to reach their own decision...
...Afterlawschool,Boltonbecamealawyerinprivate practice, though he remained connected to politics by workingonthelandmarkcampaignfinancereformcase Buckley v. Valeo...
...David Addington, then Vice President Dick Cheney's counsel and now his chief of staff,tendedtofavortheformer,andalmostalwaysprevailed--atleastuntilcourtdecisionsforcedtheadministrationtogototheHill.Goldsmitharguesthat,although Congress might have given the administration lessauthority to act than it wanted, the administration would have been better off in the long run going to the Hill...
...Imightas well have been a space alien," Bolton writes, describing how he felt as a self-described libertarian conservative who had volunteered for Barry Goldwater's presidential campaign...
...It is the result of the "criminalization of warfare" in the 1970s, when Congress passed laws with criminal penalties for those who break the rules on electronicsurveillanceandinterrogatingandtreating detainees...
...Neither do Democratic presidential candidates out on the stump denouncing "domestic wiretapping"(actuallythereisnotappingofwiresandatleastone end of the surveilled communications must be foreign...
...Former Deputy Attorney General Jim Comey, the most levelheadedpersonIknewingovernment,"Goldsmithwrites, "saysthatreadingaboutplansforchemicalandbiological andnuclearattacksoverdaysandweeksandyearscauses you to `imagine a threat so severe that it becomes an obsession.'" Another official is quoted as saying that "readingthematrixeverydayis`likebeingstuckinaroom listening to loud Led Zeppelin music,'" to the point that you begin to "`suffer from sensory overload.'" The New YorkTimesreporterswhogotaPulitzerforrevealingthe NSA terrorist surveillance program did not feel similar pressures...
...He held a number of positions in the Reagan administration and the first Bush administration, during which time he coordinated the successfulSurrender Is Not an Option: Defending America at the United Nations and Abroad By John Bolton (THRESHOLD EDITIONS, 496 PAGES, $27) Reviewed by Philip Klein Philip KleinisareporterforTheAmericanSpectator...
...The head of the office, Jack Bybee, was waiting to get approved for a federal judgeship...
...And all under intense pressure and, as time went on, reckless partisan attack...
...What was most striking to me about The Terror Presidency is the picture it presents of an overlawyered war...
...They are called on to approve--or disapprove, or limit--every weapon and almost every military target and every intelligence mission.Thiswasnotthecase,hepointsout,inWorld War II, when Franklin Roosevelt "acted in a permissive legal culture that is barely recognizable to us today...
...ThejokewaslostonRice...
...In response," Bolton writesinhisinstructivenewmemoir,"formyappetizer,I orderedcarrotsoup...
...That's the way publishers sell books and the mainstream media attempt to sway opinion...
...ThingswentfrombadtoworseforBoltonwhenon May 30, 2006, he found out about the decision that the UnitedStateswouldengageindirecttalkswithIranalong withtheEuropeanUnioniftheregimeagreedtosuspend uraniumenrichment.RiceinvitedBoltontodinnerthat night at Aquarelle, a restaurant at the Watergate complex, to discuss the decision and ask him to spin it positively to the conservative press...
...We did not have an extended conversationwithSinatra,however,becauseeveryfemaleinthe placerapidlyelbowedusaside,"Boltonwrites...
...Many people think the Bush administration has been indifferent to wartime legal constraints...
...a subordinate, John Yoo, was part of an informal five-member council including Alberto Gonzales and David Addington andwrotemostoftheopinions;whenBybeewasconfirmed, the White House wanted to promote Yoo but Attorney General John Ashcroft vetoed him...
...Laws and sausages...
...Ol' Blue Eyes,thrilledtofindoutthatBoltonwasworkingforhis buddyAgnew,invitedBoltonandacolleagueforbeersat the hotel bar...
Vol. 40 • November 2007 • No. 9
