Q&A: Justice Lawyer Who Defied White House

Jack Goldsmith may not be a household name. But he was a key player in the post-9/11 battle over how much power the president should have in fighting terrorism. Hired in 2003 to run the Justice Department's Office of Legal Counsel, Goldsmith was charged with advising the White House on the limits of executive power. He quickly found himself butting heads with fellow conservatives and longtime friends over the Bush administration's aggressive anti-terror policies, chiefly torture and warrantless wiretaps. Goldsmith was even present at the dramatic hospital-room showdown between Attorney General John Ashcroft and White House Counsel Alberto Gonzales and Chief of Staff Andy Card. Now a Harvard Law School professor, Goldsmith has written a new book, "The Terror Presidency" (W.W. Norton). In an interview with NEWSWEEK's Daniel Klaidman, Goldsmith explains why he resigned after less than a year on the job, and why he stayed quiet after media reports incorrectly stated that he had helped craft legal justifications for domestic spying and torture—opinions that he actually fought against. Excerpts:

NEWSWEEK: You pretty much single-handedly rolled back the legal justifications for some of the Bush administration's most aggressive and controversial anti-terrorism policies. When was the first time you realized the scope and potential impact of what you were doing?
Jack Goldsmith:
Let me just preface this by saying I don't think I single-handedly, I had a lot of help from a lot of people in the Justice Department. I would characterize it as trying to put important counter terrorism policies on a firmer legal foundation. I first realized the problem about 8 weeks into my time in the Justice Department when, as I say in the book, Patrick Philbin [a colleague] brought one matter to my attention which was potentially problematic and I asked him whether there was anything else that was potentially problematic and he said, "Maybe." And he brought me a short stack of opinions, and I read them and absorbed them and thought that some of them were indeed deeply flawed.

And the first one was a matter that's classified—the administration's warrantless eavesdropping program—that you're not talking about?
That's right. I can't talk about the first matter. Sorry.

And then you got a stack of opinions and you realized there were more problems, especially a series of papers that justified harsh interrogation methods.
There were problems in the other opinions as well.

Did it occur to you at that moment that this was going to pose a huge and difficult dilemma for you?
As soon as I absorbed the opinions I realized … that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn't find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.

But you don't view yourself as a whistle-blower?
I do not. This book is not about whistle blowing. It's about trying to explain to the public the enormous pressures and tensions inside the executive branch to keep Americans safe and about how that pressure bumps into the wall, and about the difficulties that everyone in the administration has and the pressure to do everything possible to keep Americans safe, and the intense pressure to comply with the law. And it's an attempt to give a fair-minded and deeply sympathetic description of that tension, and I actually think there's a structural problem in the presidency because of this, and I'm trying to explain the pressure the administration is under and why it did the things it did, and why it did things correctly in some circumstances and why it made mistakes.

Tell me about withdrawing the August 2002 Torture Memo.
When I withdrew that Aug. 1, 2002 [memo] in June, I first informed the attorney general [John Ashcroft] and I got his approval, and then I informed the White House.

When you decided that you had to do this, what was your thought process for going to see the attorney general?
I had determined that the analysis was flawed. But I hadn't determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions … and I couldn't do so. I had already made up my mind many months earlier and I wasn't about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn't in the position to make an independent ruling on the other techniques. I certainly didn't think they were unlawful, but I couldn't get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.

Then you went to see the attorney general?
I went to see the attorney general and I told him about my decision, and I don't think it was a huge surprise to him. He knew I had had very serious concerns six months earlier and had taken steps to fix that opinion. He wasn't thrilled to hear the news, but he was magnanimous. After deliberating for the day, the next day he approved in support of the decision. When I gave my decision to the attorney general about this, I also offered my resignation at the same time. And there was no push back from the attorney general or the White House on this decision. I thought there might be.

Was that somewhat tactical, offering your resignation at the same time?
As I explain in the book, I was going to resign soon anyway. I had been considering for a long time for a lot of reasons. I was pretty sure this was going to be my last episode. And I worry very much that because of prior confrontations with the White House that they would take extraordinary steps to resist my decision. And since I was going to resign anyway, I resigned with a timing designed to ensure they went along with the decision.

But they didn't take extraordinary measures?
They did not, and I don't know why. We didn't have any fight over my decision. It was kind of a done deal, when the attorney general got on board for it.

Part of what made this decision difficult is the reaction you would elicit from people in the White House. David Addington, Vice President Dick Cheney's counsel, was pretty aggressive.
It may seem remarkable, but I tried not to let it have an effect on me. Whether it did or not, it's hard to know. I did what I did despite what he said to me.

But this was an extremely stressful period for you?
For anyone in my shoes it would have been stressful. I was doing something unprecedented and I feared negative connotations for [hampering the fight] against the terrorists and I did something that I knew may harm friends and colleagues in the administration.

Including some of your own friends in academia, like the author of that opinion, John Yoo.
John was a close friend of mine, and he was the author of the opinion, and it didn't affect my judgment, but it did give me pause.

You must have known that the president and vice president would not be happy about this.
No one would be happy about it. Just about no one. There were many people in the Justice Department who agreed this was the right thing to do. Listen, this was a program that the president made clear was going on since August 2002. It was a program that had been vetted in the highest circles of the executive branch. What I was doing was an enormously disruptive act, so it obviously was not a step I took lightly, or was happy about, or enjoyed. I obviously wouldn't have done it unless I thought it was absolutely necessary that I had to.

You were concerned that the actions you took could risk lives or expose CIA officers or law enforcement officers to criminal prosecution in the future. That weighed heavily on you.
To be fair to the people that were disagreeing with me, they believed that the prior opinions were sound and they also believed that regardless of their soundness, the issues by the Justice Department had been vetted throughout the government. And yes, every time that I or any lawyer in the government or counter terrorism says, "No, you can't do something that you think might keep Americans safe," or "No, the law does not permit you to do something that might keep Americans safe," we all realized the potential consequence was that tying the president's hand might preclude him from doing something that might have stopped an attack that killed a lot of people. And so that pressure was always present. What we were trying to do was negotiate the demands of keeping Americans safe with the need to comply with the law. And it was often a very difficult and contested process.

I didn't worry about subjecting people to prosecution. What I worried was that they wanted the Justice Department to change or pull back its legal analysis, that they would be chilled from doing things because they would worry about the reliability of Justice Department opinions in the future.

Is it this idea that you're essentially changing the rules in the middle of war?
I said in the book, "I had done something I had tried to avoid; I had changed the rules in the middle of the game in a way that potentially would jeopardize national security and that harmed an institution I'd come to admire, the CIA." And that's exactly what I thought. I was doing the right thing because I thought the law required it.

You don't impugn the integrity of the people in the administration who were aggressively disagreeing with you and who had signed off on the legal reasoning in all of these opinions that you either withdrew or revised. Is it just a simple legal disagreement between smart lawyers, or is it your view that the positions that were being advocated by people like Addington and others were radical positions and sort of off the charts?
You're right; I don't impugn the integrity of anyone. I really do believe that everyone, both me and the people I disagreed with, were acting in good faith. And it's quite possible that I made mistakes as well. We were all acting under intense pressure in the face of blizzards of threat reports that scared everyone, the knowledge that the president would be held responsible for another attack no matter how hard we tried to prevent it. Therefore, we had to try as hard as we could. We were all faced with the same pressures and we all have our own views of the law and how to approach the legal principles. And in some sense it was a legal dispute. I obviously think that my views were right, and I have to say, that on the big issues of confrontation between me and the White House, there wasn't a whole lot of dispute on the merits of my legal analysis. David Addington obviously thought I was wrong on things but there wasn't push-back within the Justice Department from anyone for my legal claims, and frankly, from anyone in the intelligence community that I was aware of.

Can you imagine a scenario in which five years from now, as a result of the things you did and some of those opinions that were either withdrawn or revised because of what you did, that there could be an attack of some sort that might otherwise have been prevented. Does that haunt you at all?
It haunted me every day when I was in the government. Addington said, when I once couldn't find the legal basis for something they wanted to do, that "the blood of 100,000 people who die in the next attack as a result of your decisions will be in your hands." And a lot of people responded to that attack as, "Wow, that's an inappropriate statement." I didn't say it was an inappropriate statement in the book and indeed, I tried to explain why he said that. The reason he said that was because everyone believed that was possible. And everyone believed to the extent we were pulling back on the president's authorities that that might happen. And I worried about that intensely when I was in government and it did haunt me every single day.

You were present at one the most dramatic meetings or confrontations of the whole Bush administration, which took place in a hospital room at G.W. Hospital with a very sick John Ashcroft.
I was at home one night, March 10, [2004] and I got a call from the Justice Department to come to the hospital as soon as I could. I met Jim Comey [the acting attorney general] and Patrick Philbin. I was called there because we had learned that the White House counsel, Alberto Gonzales, and the chief of staff, Andrew Card, were coming to ask the attorney general to reconsider a decision related to a classified program that Jim Comey, as acting attorney general, [had] approved based on legal advice from me.

And you won't say what that program is? But we know that the program is the NSA's warrantless eavesdropping program.
I'm not going to talk about what the program was.

Who called you?
I believe it was Patrick Philbin on behalf of Jim Comey. Comey, Philbin and I went into the room a few minutes before Card and Gonzales arrived. It was the first time I'd seen [Ashcroft] since he went to the hospital 6 or so days [prior]. I was stunned at how changed he was, how terrible he looked. He'd had a series of operations and lost a lot of weight since I had seen him last. He was ashen, pale, looked very weak. He had the usual hospital tubes and wires coming out of his body. In walked Gonzales and Card and only Gonzales spoke and he asked the attorney general how he was doing and he asked him if he would consider authorizing the program in question. Gonzales's questions didn't get very far until color came into Ashcroft's face and he kind of came to life and he kind of lifted himself a little bit off the bed and in an extraordinarily articulate and powerful 2-minute speech, he outlined the Department of Justice's concerns with the matter. He said he did not appreciate the visit when he was so sick. And that, in any event, Jim Comey was the acting attorney general. And then they turned and walked out.

And what happened?
Mrs. Ashcroft had been standing beside her husband looking on, in what seemed to be in horror, because he was very sick and it was obviously a very stressful episode. And she was obviously very upset. She expressed this as they were walking out of the room by basically sticking her tongue out as an expression of disapproval as to what had just gone on.

And what were your thoughts after you witnessed this very dramatic confrontation?
I couldn't understand why they were there to ask someone who was incapacitated to do this. I was amazed at the attorney general's performance, which was extraordinary and really amazingly clear and articulate and powerful and moving. And I was just astonished by the whole thing. It was amazing.

And so what did you come to believe?
I came to believe in some ways that the hospital visit encapsulates the themes of the book. Whatever else you think of what they did, they were obviously motivated in large part by trying to protect the country. The other reason they were there has to do with the other theme, the competing tension with fear of another attack. That is, fear of the law. If you think about it, it's extraordinary that the White House is coming to get permission from the attorney general to do something they felt was very important. The reason they were there was because they worry about violating the law. They worry, even when they're compliant with the law, about future legal process as a result of someone down the road thinking they did something [unlawful] that seemed lawful at the time. So these twin fears that I talk about in the book—fear of attack and fear of the law—were what I think drove them there to the hospital.

What impact does this administration's penchant for secrecy have on how all these policies played out?
I came away from my time in government thinking, as many people do, that there's too much secrecy. Both too much secrecy inside the executive branch and between the executive branch and Congress. There's obviously a trade-off and it's hard to know when to draw the line. If issues and debates are too tightly drawn, and there's too much secrecy, then two pathologies occur and we saw them occur in this administration. One is you don't have the wide-range debate needed to help you avoid errors. Two is, it's pretty well known that excessive secrecy leaves other people in the government to question what is going on when they get wind of it, and to leak it. And I don't know what was the source or the causes of the devastating leaks of certain NSA programs. I don't know who did it or why they did it, but the newspapers have suggested there are people disgruntled about the program.

You believe there was no public interest in that information leaking? Was that not a healthy debate?
Taken alone, it might have been a healthy debate, but as the president said, I think it has devastating and terrible effect on our national security. How do you weigh that trade-off, I don't know. But I wish it hadn't leaked out. I wish a lot of things hadn't leaked out.

You're also sympathetic to this idea that the law-obsessed culture has strangled the executive branch's ability to fight terrorism.
I'm very sympathetic to the idea. A lot of what the book is about is the extraordinary structural problem we have and it's a novel problem for the presidency in the age of terrorism. The problem of being under huge pressure to do everything possible to stop the next attack, knowing that if you don't, you're going to be blamed for it and someone's going to find the needle in the haystack beforehand that you couldn't have seen and blame you for it. You find yourself running into this unprecedented array of criminal laws, unprecedented array of criminal investigators scattered through the executive branch and also abroad—foreign and international courts are now on the scene. You know that the legality of your actions is going to be determined at a later date in a different political and threat environment.

But the administration's zealous efforts to protect the prerogatives of the presidency and maximize executive authority may end up weakening those powers. That's something you argue in your book.
Basically, the administration has the conception of executive power that suggests they clearly have a public agenda item of wanting to leave the presidency more powerful than they found it. Vice President Cheney was in the Ford White House at the dawn of the resurgent Congress after Watergate and Vietnam and he believed then that the 1970s restrictions put on the executive branch by Congress related to war and intelligence harm the presidency. So one of their agenda items before 9/11 was to keep the power of presidency and expand the power of the presidency to put it back to its rightful place. One can debate whether they've done that or not. They certainly have exercised some extraordinary powers and they've received some extraordinary authorizations from the Congress, especially recently.

But a series of Supreme Court decisions has eroded some of that power.
They've lost power too. They've certainly lost a lot of trust of Congress. And the Supreme Court really, I think, cut back on certain presidential prerogatives. What they really have done is to borrow from the power of future presidents. Future presidencies will face a culture of distrust and worry, I believe, because of the actions taken by the Bush administration. A lot of it was unnecessary. I share their goals of aggressive actions to stop the terrorists. They could have used different means, especially in terms of getting Congress on board for what they've done. And they've received extraordinary support in 2006 and 2007 when the president made the case that something was necessary for national security—the military commission and the FISA amendments.

If they had gone to Congress and put these programs on a sound legal footing, they would have gotten most of what they wanted.
More than what they wanted. This is a hypothetical. It's counter-factual, but it seems like if they could get [these proposals passed] in 2006-2007, they could have gotten it earlier, before the losses in the Supreme Court and without the loss of trust.

During this whole drama, what was for you your lowest moment?
The lowest moment was when I was doing something that I wasn't happy to do in terms of limiting or potentially limiting the president's power in a way I fear would get Americans killed. That was the lowest point.

Now tell me a moment of fulfillment or vindication.
The best moments were working with the extraordinary lawyers in the Justice Department to do the right thing in the face of these terrible pressures. I don't want to take full or even most of the credit for this. It wasn't just me. It was other people. In trying our best to uphold the decisions of the Justice Department and abide by the law, those were the best moments.

Is there anything prescriptive in your book?
With the president, yes. The president faces unprecedented challenges. It's an enemy that we can't see. That, the public doesn't appreciate nearly as much as he does. It's an enemy that's really frightening in its capacity and very hard to find and to know when or where or how it will strike. Given that we know how powerful it can be, it leaves the administration extraordinarily anxious in its ability to stop its next attack. So when you have those pressures and then you run into laws that don't allow you to do what you need to do, I think the prescription is that going it alone unilaterally with executive power is not as good as getting the other institutions on board through consensus and consultation.