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Supreme Court Ruling: File-Sharing

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Gigi Sohn
President, Public Knowledge
Monday, June 27, 2005; 3:00 PM

Former Assistant Attorney General Jack Goldsmith will be online Friday, Sept. 14 at 10 a.m. ET to discuss "The Terror Presidency," his book about the Bush administration personnel -- including vice presidential chief of staff David Addington -- who pushed controversial measures behind the scenes to give President Bush unchecked power in the fight against terrorism.

New Book Details Cheney Lawyer's Efforts to Expand Executive Power (Post, Sept. 5)

Submit your questions and comments before or during the discussion.

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Detroit: The Bush administration claims that its surveillance of Internet and telephone communication is directed only at terrorists and those linked to terrorists. Do you think that the intelligence agencies are using the expanded surveillance powers to spy on domestic political opponents such as antiwar groups, as was the case in the 1960s and 1970s?

Jack Goldsmith: I do not believe that the intelligence agencies are spying on domestic political opponents as they were in the 1970s. These agencies were deeply harmed by the experiences of the 1960s and 1970s and have developed strong cultures and internal restrictions that would preclude such activity, in my view.

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Alexandria, Va.: How much of your book is conjecture?

Jack Goldsmith: My book is about the extraordinary anxieties inside the Executive branch caused by two conflicting fears: fear of anotehr attack and fear of doing to much to stop the attack and inadvertently violating the law. Most of the book is based on my experiences trying to negotiate these tensions as the head of the Office of Legal Counsel, the Department of Justice office that advises the President and Attorney General on the legality of presidential action. The book is based largely on my experiences and to that extent is not conjectural. When I do conjecture -- for example, about the implications of the Bush administration's approach to terrorism for future presidencies -- I make clear that I am conjecturing.

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Apple Grove, Md.: I haven't seen any recent polls, but the last one I did see on the subject of civil rights was alarming. The majority of respondents were willing to do away with the Bill of Rights, if that would improve security. Do you think this type of fear has allowed the Bush administration to expand the powers of the president at the expense of our civil rights?

Jack Goldsmith: I would be surprised if most Americans wanted to do away with the Bill of Rights. But I understand the sentiment that when the country faces a serious threat, we should adjust the scope of legal protections during non-threatening times in order to allow the government to meet the threat in a way that keeps us safe. This has always happened during wartime. Usually the restrictions on liberties during wartime are temporary. The fight against al Qaeda and its affiliates may last a long time. As a country we need to figure out a way to give the Presidency the extraordinary authorities it needs to keep us safe, while at the same time minimizing unnecessary intrusion on our liberties. That is, of course, easier said than done.

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Hamilton, N.Y.: Hi Mr. Goldsmith. The administration long has criticized activist judges who ignore the will of the people. What I find interesting about your book is that it illuminates how the policies of the administration rely quite explicitly on just such "activist" judges rather than actual legislation. What do you think of the "philosophy" of judicial restraint in light of all this? Isn't it really just cover for specific policies, applying in one context and inoperative in others?

Jack Goldsmith: I am not really sure how my book shows that the administration relies on activist judges rather than on legislation. I do say that the President's counterterrorism policies would have been strengthened, and would have avoided setbacks in court and other problems, if he had gone to Congress earlier to get it on board for the policies.

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Boston: How damaged, in your view, is the credibility of the Department of Justice right now (fairly or not)? What are the implications in a democracy when the DOJ's credibility comes under such question?

Jack Goldsmith: The Department of Justice has gone through a very difficult period during the past few years. The reasons are too complex to discuss here; as you suggest, some are fair and some are not. It is a shame, however, for the Department is an extraordinary institution filled with thousands of talented and dedicated lawyers who work hard every day to enforce the law -- both publicly and within the executive branch. DOJ's troubles are obviously not healthy for our democracy.

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Baltimore: Back in the '60s, I learned in school that I had certain basic rights. However, during the "Terror" presidency, I think it is hard for the average citizen to confidently say what their rights are. Will I be arrested or investigated if I say "Osama bin Laden" on the phone? If for any reason the president believes that I am an enemy combatant, do I have the right to counsel?

Jack Goldsmith: Let me be clear that the "Terror Presidency" is not the current administration, but rather the presidency during the era of terrorism, of which this presidency is the first. I understand your concerns about your rights, for some of the things that are said in the press about what the government is going to defeat the terrorists can seem scary. To answer your specific questions: I do not think you will be investigated merely for mentioning bin Laden on the phone; the President cannot make someone an "enemy combatant" just for any reason; and the Supreme Court has said that alleged enemy combatants get basic "due process" rights, and the right to counsel, in challenging the government's enemy combatant determinations.

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Wilmington, N.C.: I understand why the parties to normal criminal and civil legal proceedings use every tool available to prevail -- that is the nature of our adversarial legal system. What I don't understand is the federal government acting in this manner in conducting its defense of its official actions. It seems almost personal. Why doesn't the administration welcome judicial review? If its arguments are valid, it will prevail. If not, they will know and adjust accordingly. It seems to me a public servant ought to submit willingly to independent confirmation of his legal positions.

Jack Goldsmith: This is a very good question. Here is a brief but inadequate answer. I think you are right. In retrospect, there is a very good argument that the administration should have, early on, embraced rather than resisted judicial review. It likely would have had a better chance of getting judicial approval for what it was doing early on, and thereby enhanced the legitimacy of what it was doing early on. And as you say, if it lost it could adjust, as it has adjusted in the face of subsequent losses. Why didn't the administration do this? Many reasons, I think, including: (1) it genuinely believed -- and in many contexts it had very powerful arguments for this belief -- that judicial review of wartime decisions was inappropriate; (2) it worried that any restrictions on its powers, by courts or Congress, might tie its hands in a way that prevented it from saving lives.

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South Bend, Ind.: A threat such as terrorism seems to lend itself to allowing the executive branch to assume more power -- a single unifying figure the country can look to, access to a bully pulpit, etc. But what role should the Congress play moving forward, and how can they point out their honest policy disagreements with this or future presidents when they lack the advantages of the executive branch?

Jack Goldsmith: You are right: Presidential power increases during wartime and in crisis for the reasons you state, and also because only the President can act quickly and decisively, using the military and intelligence tools he controls, to keep us safe. Congress has an important role in legislating presidential authorities when necessary, in oversight, in legitimating the President's actions, and in assuming joint responsibility for hard decisions. As I explain in my book, however, Congress is a passive institution in crisis that will only exercise its full constitutional responsibilities if the President makes it do so by forcing it to take a public stand, with votes, on hard terrorism issues. When the President does this he can get most and usually all of what he wants from Congress, as we learned last Fall with the military commission act and 6 weeks ago with the amendments to our surveillance laws. One of the mysteries of the Bush administration -- a mystery I try to explain in my book -- is why the administration did not go earlier and more often to Congress.

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The Caribbean: Mr. Goldsmith -- thanks for writing your book, and for taking questions. Do you know of anyone who left the Department of Justice in open protest? Do you regret not doing so? There has been a long trend of people leaving the administration, then criticizing it years later -- John DiIullo, Paul O'Neil, Christine Todd Whitman, George Tenet, etc. Do you think that an instinctive but unwarranted, deference to former employers has allowed legally and strategically questionable programs and activities to continue longer than necessary? Also, I was enrolled in your planned course at Georgetown that was canceled when you left the administration and went to Harvard. So, if you weren't able to leave in open protest, couldn't you just have held on for one more semester?

Jack Goldsmith: I did not leave in open protest and my book is not really a protest. It is, instead, an attempt to explain the extraordinary challenges and presures that I and those I disagreed with faced in designing counterterorism policies. The problem of doing what is necessary to keep the country safe while also complying with the law will be with us for a very long time, and I wrote my book in the hope that duture counterterrorism officials and government lawyers can learn from our experiences and mistakes.

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Columbus, Ohio: You say "we should adjust the scope of legal protections during nonthreatening times in order to allow the government to meet the threat in a way that keeps us safe." Isn't this a slippery slope? One could imagine "safety" as an easy political proxy for eroding civil liberties, particularly for a war of indefinite duration. In fact, it seems like your book and this administration demonstrate just that -- doesn't "safety" become a justification for any action regardless of its impact on liberty?

Jack Goldsmith: It is potentially a slippery slope, especially for those who believe, as some do (I do not), that the Constitution authorizes the President to do whatever is necessary to keep us safe. I do not think we are close to sliding down that scope. I should add, however, that the President's ultimate responsibility is to keep the country safe. Sometimes this resonsibility clashes with the law. As Jefferson wrote, "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means." This is obviously a dangerous idea, for the President determines what is necessary. But this idea does NOT mean that everything a President does that is necessary to keep us safe is also lawful, and in Jefferson's mind, and I agree, a President who violates the law to keep the country safe must confess his violation publicly and seek Congress's approval.

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Jack Goldsmith: Thanks for the great questions. I wish I had time to answer more. There is much in the Terror Presidency that we have not discussed -- an explanation of how and why the commander in chief has become "ensnared by law" and lawyers, and how this empowers lawyers and potentially skews accountability for counterterrorism policy; an analysis of the the proper role of lawyers in interpreting the law during a crisis; a comparison of the crisis presidencies of Lincoln, Roosveelt, and Bush; and much more. Thanks.

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