National Security Bubble

How the Bush administration's attempt to protect the country went awry

THE GOAL OF the Bush administration after Sept. 11, 2001, was simple and clear: Protect the country from another devastating attack. But in its quest to counter unprecedented threats, the White House deliberately avoided seeking the advice of Congress -- and even that of some of its own top officials -- for fear of encountering opposition to novel or aggressive tactics. This go-it-alone approach led to the proliferation of dubious legal theories that authorized activities such as the warrantless surveillance of U.S. citizens and the torture of suspected terrorists. Perhaps the most infuriating aspect of the strategy was that it was largely unnecessary and ultimately counterproductive.

The existence of the so-called torture memo and the warrantless surveillance program have been known for some time. But a forthcoming book, "The Terror Presidency," by former Justice Department official Jack L. Goldsmith provides an insider's account of the pressures and priorities that led to such programs. It also illuminates the dangers of making decisions in a bubble, even when -- perhaps especially when -- the goals are so clearly valid.

Mr. Goldsmith, now a Harvard law professor, was in 2003 and 2004 assistant attorney general in charge of the Office of Legal Counsel, an important arm of the Justice Department that signs off on the legality of executive branch decrees. How could well-meaning and learned administration lawyers have signed off on questionable legal policies that, in Mr. Goldsmith's words, "brought such dishonor on the United States, the Bush administration, the Department of Justice and the CIA?" The answer: the fear of issuing a legal opinion that could leave the country vulnerable by limiting the president's prerogative to act preemptively and unilaterally to thwart an attack.

The primary proponent of the strong executive model -- and a primary purveyor of fear -- was David S. Addington, who at the time was Vice President Cheney's top legal counsel and now is Mr. Cheney's chief of staff. In one encounter, Mr. Goldsmith quotes Mr. Addington explaining the administration's approach to broadening the president's powers: "We're going to push and push and push until some larger force makes us stop." Mr. Addington and others insisted on avoiding consultation, seemingly oblivious to the fact that Congress -- at the

time and since -- has acquiesced to the great majority of the president's terrorism-fighting

requests.

Mr. Goldsmith pushed back, revoking or revising several opinions coming out of the Office of Legal Counsel, including the torture memo. He declines to characterize his clashes with Mr. Addington as "between the forces of good and evil."

And therein lies the moral of the story: The goals of these two men were not dissimilar, but their methods certainly were. Both wanted to restore powers to the presidency that they believed had been unjustifiably whittled away in the post-Watergate era. But Mr. Goldsmith's approach had the benefit of acknowledging that even while a president should not be unnecessarily constrained from protecting the country, the rule of law should not fall victim to the quest for national security.