Patterico's Pontifications

10/23/2007

A Tremendously Important Book That Many Should Read — “The Terror Presidency” by Jack Goldsmith

Filed under: General — WLS @ 3:28 pm



Posted by WLS:

I’ve only recently started reading Jack Goldsmith’s book about his 10 months as the Assistant Attorney General, Office of Legal Counsel.

I know from reviews I’ve read of the book that Goldsmith formed some opinions about members of the Admin. that will probably leave me troubled. But, in reading the first 60 pages, I must say that I think anyone interested in the intersection of the Constitution and National Security should devote some time to what Goldsmith has produced. It’s only 216 pages, and while it has enough subject-matter involving the legal niceties of various terrorism and national security policies, it’s also tremendously informative from a layman’s perspective on the framework and structure of the law in this area.

A little background on Goldsmith was an especially interesting way for him to begin his book. While he describes himself as a political and legal conservative, he came to those beliefs while a law student at Yale in the 1980s. He was not a member of the political or cultural establishment, having been born and raised in Tennessee by parents who ran a nightclub on the Mississippi River. Following his parents’ divorce, his mother married a gentleman named Chuck O’Brien, who was widely known as Jimmy Hoffa’s right hand man in running the Teamster’s Union, and for decades was a central suspect in Hoffa’s disapperance.

Following graduation from Yale, he clerked for Judge Wilkerson on the 4th Circuit, and for Justice Kennedy on the Supreme Court. After his clerkship, he practiced law in a large D.C. law firm before going into teaching, eventually ending up on the faculty at the University of Chicago Law School.

He didn’t know any GOP politicians, never donated money to GOP candidates or causes (his only political contribution was to a personal friend in Chicago running for office as a liberal Democrat), and was not one of the legions of conservative lawyers who rushed to Florida in the aftermath of the 2000 election.

He didn’t join the Admin. until Aug. 2002, after the General Counsel for the Dept. of Defense sought him out, having learned of his academic writings critical of the creeping influence of international law on American law, and on subjects concerning the legal aspects of military operations and military commissions. There were reasons why these were important subjects in DOD, and I’ll cover those in a later post as I get through the book.

His first and only government job prior to becoming AAG of the OLC was simply “Special Counsel” to the General Counsel of DOD — a job he stayed in for only 7 months prior to resigning to go back into academia at the University of Virginia in March 2003. Six months later he was sworn in as AAG of the OLC, another job he never sought, but for which he was recommended by the DOD General Counsel.

By June of 2004 he had resigned.

I’ll have more to come as I make my way through the book.

** Note: The Office of Legal Counsel in the Department of Justice is the “referee” of legal disputes within the Executive Branch. If two agencies disagree on the meaning or application of a particular statute, OLC issues an opinion that is binding on all agencies of the Executive Branch.

OLC also has the responsibility of defining the bases and limits of Presidential authority under statutes, case law, and most significantly, the Constitution. The OLC is often described as the Attorney General’s Lawyer. But the culture of the OLC is to issue detached, apolitical legal advice about what the President and Executive Branch can and cannot do under the law as it exists at the time, and under settled interpretations of Constitutional provisions. It is not to be an advocate for changing the law or arguing for new interpretations.

9 Responses to “A Tremendously Important Book That Many Should Read — “The Terror Presidency” by Jack Goldsmith”

  1. Sounds fascinating. I can’t wait for the next installment.

    DRJ (fb1a22)

  2. I agree with DRJ
    As an old Californian I think he did have contacts with the GOP. Nixon and Hoffa were buddies 40 years ago. Many men in GWB’s admin also worked for Nixon 35 years ago in DC. Not saying he did have prior direct contact with the current Admin just that he had plent of opportunity to have had contact with them give his mother’s second husband.

    Rodney A Stanton (09e1a5)

  3. Rodney — I guess if there was some evidence of that ever happening you might have a point. But it seems pretty clear by his own chronology, and the lack of anyone claiming to the contrary, that he graduated from Yale, clerked in an Appellate Court and the Supreme Court, worked in a law firm, and then became a professor at one of the top law schools in the country.

    Absent some evidence to the contrary, rank speculation that there’s some nefarious connection through Nixon, Hoffa, and his stepfather is simply not tolerable.

    WLS (bafbcb)

  4. I’ve read your review a couple times and it reads like a dry biography. I have no idea what the book is about or what I’m supposed to learn by owning it.

    Shouldn’t that be the focus of a book review and maybe add some bio stuff at the end?

    Christoph (92b8f7)

  5. Christoph — I’m still reading. Look just above the “Note” where it says

    “I’ll have more to come as I make my way through the book.”

    I’ve only read the first 65 pages.

    WLS (bafbcb)

  6. I saw that part. I’m critiquing your book review. I would have found it more intriguing if you’d elucidated what you learned in that first 65 pages that makes you want to read the rest.

    Christoph (92b8f7)

  7. Christoph — ok, I understand.

    I was saving my first observations for a new post, and I want to have some time to organize it a little better.

    Its going to be on the points raised in the book concerning the lack of controlling judicial precedents for many issues of presidential power under Article II, especially in the area of national security. He quotes Robert Jackson from 55 years ago in Youngstown Sheet & Tube — “a judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.”

    He puts this problem in the context of the following: “OLC also needn’t look at legal problems the way courts do. Most Americans (including most lawyers) think the law is what courts say it is, and the implicitly equate legal intepretation with judicial interpretation. But the executive branch does not have the same institutional constraints as courts, especially on national security issues where the President’s superior information and quite different responsibilities foster a unique perspective.”

    I read the point he is making as courts can only interpret laws as they come before the court in a real case or controversy between two parties in opposition to one another. Those are among the “institutional constraints” which limit a scope of judicial activity.

    The executive, on the other hand, must select courses of action in times of conflict or emergency, without opposing parties establishing a factual record from which to make a judgment, and not with the benefit of hindsight as to how things actually turned out.

    But in doing so the executive must define for itself the boundaries of its own authority before it can act, and have some understanding of the consequences of being wrong — either wrong in its policy choices or wrong in its analysis of the legalities.

    That’s the subject. I’ll have some more thoughts on it in a new post, probably tomorrow.

    WLS (bafbcb)

  8. WLS, I’m a fan of your legal thinking probably more than of any of the other authors on this blog including the master himself, but in this case, I’m glad I followed my initial inclination which was to give a somewhat harsh critique of your review.

    If you like the book, it’s probably good… I was just thinking that starting with why and how it’s good is the right place to begin.

    Thanks for your follow up comment… much more interesting.

    Christoph (92b8f7)

  9. Christoph – You were just being a dick again. You can’t help yourself. What wls said in his post was perfectly clear to anybody with a high school education. The Dems have paraded Goldsmith in front of their committees to milk him for info for their witch hunts.

    Take a breath before hitting submit next time.

    daleyrocks (906622)


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