The Goldsmith Standard

Jack Goldsmith is a hard-core conservative. But he still has vestiges of an understanding of civil liberties and the rule of law, and does not share a belief in the right of the executive to be essentially a king. This is why he left the Office of Special Counsel within 9 months, after seeing the depths to which the Bush Administration would sink to justify their lawbreaking. In an article for the New York Times magazine previewing his new book, Goldsmith explains the current members of the executive branch who desire nothing less than supreme power.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

This is just one example of the beliefs of Addington, "Cheney's Cheney," that there should be no checks on the executive. Paradoxically, the Office of the Vice President doesn't believe themselves to be a part of the executive branch, so it's just a helpful gesture to give the President a complete free hand to trash the Constitution.

Glenn Greenwald has much more.

Two revelations in particular are extraordinary and deserve (but are unlikely to receive) intense media coverage. First, it was Goldsmith who first argued that the administration's secret, warrantless surveillance programs were illegal, and it was that conclusion which sparked the now famous refusal of Ashcroft/Comey in early 2004 to certify the program's legality. Goldsmith argued continuously about his conclusion with Addington, and during the course of those arguments, this is what happened:

[Goldsmith] shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

Their goal all along was to "get rid of the obnoxious FISA court" entirely, so that they could freely eavesdrop on whomever they wanted with no warrants or oversight of any kind. And here is Dick Cheney's top aide, drooling with anticipation at the prospect of another terrorist attack so that they could seize this power without challenge. Addington views the Next Terrorist Attack as the golden opportunity to seize yet more power. Sitting around the White House dreaming of all the great new powers they will have once the new terrorist attack occurs -- as Addington was doing -- is nothing short of deranged.

Contrary to the claims made by Bush and his followers ever since the NSA scandal arose, their real objective in secretly creating "The Terrorist Surveillance Program" was never to find a narrow means to circumvent FISA when, in those few cases, it impeded necessary eavesdropping. Rather, the goal was to get rid of FISA altogether and return the country to the days when our government could spy on us in total secrecy, with no oversight. Of course, until they could "get rid of" that law altogether -- through the only tactic they know: exploitation of Terrorism -- they simply decided to violate it at will.

Read the whole thing. The Bush Administration has been using discredited legal reasoning to do away with federally and Constitutionally mandated laws without any compunction. Their own internal, warped logic was the only logic that mattered, certainly not the logic and legal reasoning that is supposed to govern the country. This is the kind of government you would expect in a military junta, quite frankly. And as Greenwald rightly points out,

Perhaps most infuriating is the fact that, as it turns out, violating these laws in secret was not even necessary -- because Congress was, and still is, more than happy to legalize whatever they wanted to do. Almost immediately after the Supreme Court finally imposed some mild limitations on the President's detention and interrogation powers -- first in Hamdi, then in Hamdan -- Congress, as Goldsmith says, "promptly passed a law that gave him everything he asked for, authorizing many aspects of the military commissions that the Supreme Court had struck down."

Same with the FISA court, just denuded by Congress.

Until we have a Democratic Party with the conviction to put an end to this total disregard for the normal functions of government, people like Addington and his boss will continue to reach for more and more power. And the next executive isn't likely to throw those new powers away.