Geoffrey Stone has a great review of Jack Goldsmith’s book that makes it crystal clear that we’re dealing with an administration that has nothing but contempt for the rule of law and the separation of powers:
As it implemented its “go-it-alone” conception of executive authority, the administration “rejected any binding legal constraints” on the president’s power. Whenever anyone suggested consulting Congress on such matters as detention, interrogation, habeas corpus, military commissions, or surveillance, Addington’s invariable response was, ” ‘Why are you trying to give away the President’s power?’ ”
The most critical issue Goldsmith encountered involved the “torture memos,” which purported to provide a “legal basis for what President Bush later confirmed were ‘alternative interrogation procedures used at secret locations.’ ” Consistent with the administration’s extreme view of presidential authority, the memos argued that the Torture Act of 1994 — which made it unlawful for government officials to engage in torture — violated the president’s inherent constitutional power as commander in chief to authorize torture. According to Goldsmith, CIA interrogators viewed these memos as a ” ‘golden shield’ ” that would insulate them against criminal liability.
Although no head of the Office of Legal Counsel had ever overturned an opinion issued by the office in the same administration, Goldsmith concluded that the extreme assertion of presidential authority in the torture memos had “no foundation” in any “source of law.” They rested entirely on “one-sided legal arguments” and were nothing more than unreasoned assertions of “sheer power.” Goldsmith decided he had a legal and constitutional responsibility to withdraw the torture opinions.
At the same time he informed Atty. Gen. Ashcroft that he was withdrawing the opinions (Ashcroft, by the way, was “supportive” of Goldsmith’s conclusion), he also submitted his resignation, in part “to ensure that my withdrawal” of the torture memos “would stick.” The timing, he believed, “would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest.” He was right, and it worked.
Goldsmith, it should be emphasized, has described himself as not being especially concerned with civil liberties. Yet he found it necessary to resign after only 10 months on the job. The same story can be told of other officials—Jim Comey, John Ashcroft himself—who were hardly left-wingers, but who ultimately were unable to stomach the Bush administration’s cavalier disregard for the constitution. The only people who are still in the White House at this point are people who weren’t disturbed by the president’s theory that he can pretty much do whatever he wants regardless of what Congress or the Supreme Court say. Why on Earth would Congress want to encourage this kind of behavior by giving the executive branch even more power to spy on Americans without court oversight?
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