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SJC: Goldsmith Testimony, Part I

goldsmith.jpgToday, Prof. Jack Goldsmith of Harvard Law, formerly of the Bush Administration’s DOJ inner circle, will be testifying before the Senate Judiciary Committee regarding sustaining the rule of law in the fight against terrorism.  You can view the hearing via the Committee livestream here.  (H/T to selise)  Some background:

Charlie Savage at TPMCafe on the Goldsmith view of unilateral executives a la Bush.

The WashingtonTimes, in discussing potential areas of testimony, smacks Goldsmith for writing about the Bush Administration, and brings up attorney/client privilege regarding some of the conversations contained in his book.  (A conversation that will no doubt come up during the hearing today as well, if Hatch and Cornyn bother to show.)

Carpetbagger has a good overview.

— See also, the LATimes here and here; TheMuck on Goldsmith’s beef with Addington; and emptywheel’s fantastic deconstruction of the Goldsmith PR campaign.

As always, please keep comments to a minimum while liveblogging is ongoing for the sake of the servers and the blogger.  Every time we have to start a new thread, we lose bits of testimony, so avoid one-liners and such until liveblogging has ended.  Thanks!

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SEN. LEAHY: I just want you to know that not only do I have your book, but I’ve read it. Take a peek at these tags.

SEN. SPECTER: I don’t need tags, I remember it.

SEN. LEAHY: The subject that we are discussing is a fundamental one for this nation – and the administration failed the test. The government has the responsibility to protect us from future attacks. They also must do so protecting our liberty and the vibrant checks and balances to preserve the liberties of our Constitution and the rule of law.

Their goal is an unprecedented expansion of executive authority. They have used the threat of terrorism to expand this, and its genesis was hatched well before the attacks on 9/11. Discussing Timothy McVeigh and the attack in Oklahoma City. The WH set out to expand executive authority – tiny cabal of lawyers, and if you disagreed with them, you were shut out of the discussion – Gonzales, Addington, etc.

Secrecy, unilateralism have become the hallmark of this Administration – and we see the consequences of this in our loss of credibility with out allies. Worse than that, it has become a powerful rhetorical tool of our enemies – invokes Abu Ghraib, Guantanamo and other decisions and actions which will be held against the US for generations to come.

Efforts of the WH to corrupt the federal process by the firing of USAttys to install cronies and political pawns for electoral reasons.

Today’s witness was briefly a member of the internal legal cabal. I suspect that if the witness and I sat down to discuss issues, that we would disagree on a number of them – but that we would agree on a number as well. When he was at the DOJ, what he saw were opinions which were deeply flawed, sloppily reasoned and overbroad – and he wanted to fix those opinions. He suffered withering criticism for standing up for the rule of law. Leahy recommends reading Goldsmith’s book – rather chilling account of what has happened inside the DOJ and the executive branch – cautionary tale for those who follow.

SEN. SPECTER OPENING: Thanks Leahy for scheduling this hearing, and for Goldsmith writing the book. Survery of the critical issues which the nation faces in the threat of terrorism – and the need for a careful analysis of how we meet the threat and, at the same time, preserve our commitment to civil rights.

When you told the Administration, specifically the Vice President’s office, that you could no longer certify a classified program legally, the VP’s lawyer told you, “If you fail to do this, the blood of Americans in the next attack will be on your hands.” Hardly “no disagreement” within the Bush Administration, as testimony has been presented to this committee.

Discusses the Hamdi case, and the importance of habeas corpus in the context of a failure to give adequate access to counsel and other issues. The importance of the reinstatement of habeas from the MCA pullback of it.

You also discuss the question of signing statements, where the President agreed with Sen. McCain on the issue of torture – and then when he signed the bill, issued a signing statement that he wouldn’t always act in compliance with that law. Legislation with regard to signing statements is needed, and we are working on that.

We are aware of the grave difficulties that the executive branch faces in meeting the dangers of terrorism and also staying on the correct side of the law. Thought that your quotations from CIA director Hayden were very interesting – that he would “stay on the edge – take his spikes to a position where they might have chalk on them, go right up to the line” – that your position was that your job is to keep the President on the right side of the line.

Discussing the tens of billions of phone calls and e-mails, analyzed in time for an overnight report – the difficulties for intel to analyze this adequately on a daily basis. We want there to be adequate security, but also a respect for the laws and the constitution. Little back and forth about the book sales.

PROF. GOLDSMITH OPENING: Asking for written statement to be made part of record. Topic is preserving the rule of law in the fight against terrorism. Have thought a lot about this in the past few years. The first question is the presidency and his duties: keep the country safe and to protect national security AND to take care that the laws are faithfully executed and to uphold the constitution. Two pressures that were constantly at play and at odds: (1) how frightening it is to read the threat reports that the President reads every day, and that the government lacks full information that it thinks it needs to thwart the terrorists – the grave responsibility that the administration has to thwart these attacks, and leads them to push as hard as it can to do everything it can to prevent another attack – that includes operating up to the edge of the law to stop another attack, with the knowledge that if another attack comes, that the President will be responsible. (2) On the other hand, there is the law – the need to comply with the law. In my experience, they did try to apply the law. Some people say they disregard the law – in my opinion, they have been preoccupied with it – there are lawyers in every meeting. Sometimes criminal laws – vague ones, etc. – they worry about being prosecuted down the road, fear of violating the law. References the Gorelick memo as a pre-9/11 preoccupation and that sort of mindset.

Have considered the lessons that we should learn from all of this over the last few years. This is not justa problem thatthis president faces – Lincoln, Kennedy, Roosevelt, etc. We need to acknowledge the problem and the difficult position that the executive branch is sometimes in and we also need to understand that this is a problem that all the branches of government must do together.

SEN. LEAHY: Feels like we are doing all of these hearings to inform the next president. I do have a disturbing thought that this Administration doesn’t listen very much to what is going on and the problems that we are trying to solve – certainly Gonzales gave that impression, but the public WAS paying attention and, thus, he’s gone. Discussing the Cuban Missile Crisis and WWII, among others, throughout it all, the American public thought that the basic civil rights would be there. Discussing FISA, Addington, Yoo, etc. – blew through the laws they didn’t like and issued legal opinions which said so, but they did this in secret so that there could be no disagreement with their lack of reasoning on this. Is it fair to say that, in your opinion, the warrantless wiretapping program – or significant parts of it – were either illegal or without a legal basis? Goldsmith says that it was a legal mess – biggest one he has ever encountered. Says it is difficult to put labels on, because there has been wiggle-around on this, there were aspects of the TSP that he could not find legal support for. And people at the DOJ and executive branch were informed of this – senior leadership at the DOJ agreed with him that it lacked legal foundation, and the WH didn’t. Leahy says – as you know that FISA has been amended 30 times since 9/11 – do you believe it would have been possible to accomplish this legally if the Bush Administration had been willing to work with the FISA Court and Congress? Yes sir, I do.

Leahy says this is the tragedy of the whole thing – we have these questions as to why the Administration did not follow the law, but they could have done so all along, most likely, had they wanted to do so. The group of people allowed to see the legal opinions was so small that even the NSA’s lawyer was not permitted to see the legal justification for this program. Why so much secrecy? Goldsmith says (1) either to make sure that the information did not leak to the public or (2) they didn’t want the legal analysis scrutinized by anyone outside the executive branch. Goldsmith says that he thinks it is the latter – Leahy asks if that is because it wouldn’t stand up to scrutiny? Goldsmith says he doesn’t know, but not getting that scrutiny from experts certainly led to a lot of mistakes.

Did that include the head of the OIPR? And Comey? Goldsmith says that they were eventually included – that he had to insist that they were included, with AG Ashcroft’s support, after Goldsmith started working on these issues. [CHS notes: So only after the fact was anyone outside the executive branch set read into the discussion.]

SEN. SPECTER QUESTIONS: On the TSP, there were some aspects that you did not find legal. Talk about the incident in Ashcroft’s hospital room. Asking about Mrs. Ashcroft sticking out her tongue at them. The issue was a very highly classified program – had been reviewing as head of OIC. Read in the DAG and AG. Goldsmith says he can’t talk about specifics about the program involved, and says that the government has forbidden him to talk about the legal analysis. Specter says that yes he can talk about legal principles in terms of constitutional issues – Goldsmith says they have told him that he can’t discuss this.

Now discussing habeas and the importance thereof. AG Gonzales said that it wasn’t in the Constitution – Goldsmith laughs at this, and Specter asks the record to indicate he smiled. Rasul definitely extended habeas to Guantanamo. Didn’t say that the two were co-extensive. Getting into habeas weeds – Goldsmith doesn’t want to confirm Specter’s analysis, says that the holding was a statutory right – doesn’t think it applied to a constitutional one. Specter asks him to re-read the case and give a written response on this.

Goes on to the McCain bill on torture and then signing statement. Back and forth on signing statements – Goldsmith says that he doesn’t feel they are as significant as Specter seems to feel they could be. [CHS notes: missed some of this, as my feed broke up. Will try and fill this in if I can listen to it later.]

Worry that some court or judge or prosecutor or investigator would interpret the laws differently from the administration, and would hold them criminally liable down the road, was a real concern for the Administration. [CHS notes: hmmmm…trying to lay groundwork for backdated immunity?]

SEN. FEINSTEIN QUESTIONS: Discussing the Bybee memo and the one from Goldsmith to Jim Haynes (SP?). Both these took us down a very dark path – refers to p. 144 of his book – violent acts aren’t necessarily torture. If you do torture, you probably have a defense. Even if you don’t have a defense, you probably do in that conduct is a “gold shield” if acting under Presidential authority, as described by one CIA official. Why wasn’t the UCMJ a good standard? Goldsmith says that UCMJ applies only militarily – Feinstein says she knows that, but that Common Art. 3 of the Geneva Conventions and others were factored into the UCMJ standards, why not use something similar? Goldsmith refers her to the Tenet memoir – they thought people had information, and they needed to push as far as they could under the law to get it.

Goldsmith says that he appreciates and on some levels shares the need for the executive branch to push as far as they can to keep the American public safe. He understands that sentiment. The difficulty is how they went about doing so. Feinstein says the difficulty is that we are now faced with an incarceration facility in Guantanamo, where someone can be held essentially forever, without seeing a lawyer, suspending the right of habeas. How do you view that? And what would you suggest to us legally be done? Goldsmith says that first of all it was Congress that eliminated this – the MCA did so. [CHS notes: he’s conveniently glossing over the fact that the MCA wasn’t ratified until 2006 – that the Administration had been acting outside the law since 2001 without Congressional approval. Not to excuse the MCA in any way, btw, but hello…] Congress must set up a system of fair, good faith, long-term detention – can’t just shift the responsibility to the courts, which is in effect what you do by only acting on habeas on this. Justice O’Connor spoke eloquently about this in her West Point speech on this issue. We need clear cut rules on a detention regime and Congress must play a part in this directly. Goes to Kyle Sampson – Goldsmith says he doesn’t recall Sampson talking with him about the USAtty scheme.

Back to the Ashcroft hospital room. What were your concerns, and why were you there? Says he had only been read into certain aspects of the program, doing analysis on this, AG became ill, Comey was acting AG. Goes to Comey’s testimony – that Gonzales and Card were trying to get AG to overrule Comey’s decision to refuse to sign off on the legality. AG looked terrible – Goldsmith was there because it was his analysis that was at issue with this. Goldsmith and Comey got there minutes before Gonzales and Card. Only Gonzales spoke – there to seek authorization for the program. Ashcroft lifted himself up off the bed and said that he shared the DOJ concerns that Comey and Goldsmith had conveyed, did not appreciate being visited in the hospital under these circumstances, and that in any event that Comey was acting AG – fell back into the bed and looked horrible.

LEAHY FOLLOW-UP: Ashcroft made very clear that Comey was acting AG? Did you have any question under the law that Comey was, in fact, acting AG under these circumstances? No sir.

SESSIONS QUESTIONS: Sessions says that what is critical for the next AG is to have an AG who can articulate to the WH clearly where they are overreaching to trying to act outside the law – and who can defend those positions legally with the WH. Discussing prior torture standards as enacted by the Congress prior to 2001 –and current standards as have come up since the Bush Administration has taken things “right up to the line.” [CHS notes: Trying to shift responsibility for Bush Administration actions onto the Congress. ] CIA has more than a hundred lawyers – everyone was worried about being hauled before some spectacle of a committee – so what did they do? They studied the law. Questions regarding habeas and anti-torture applying to unlawful combatants. Do you find any legal justification for Abu Ghraib? No, no one in the Administration tried to defend it. [CHS notes: Sessions doing the leading and testifying himself style of questioning today.]

Goldsmith says that he experienced the fear in the Administration that they would be held to account for their actions in pushing things up to the line. This is exactly the sort of risk averse behavior from lawyers at the CIA that Sen. Graham discussed in his statements – that they didn’t allow pushing up to the line that may have prevented 9/11 – that Congress needs to come up with clearer standards so that there isn’t future second guessing. Leahy interjects that Goldsmith did rescind the torture memorandum. Sessions goes back and says that the memo allowed more pain and suffering than the law allowed. Goldsmith says that he would not have withdrawn any memo unless he found that it was severely flawed – the main thing he worried about was that the language was overbroad, unnecessary and extreme and he didn’t know what else would be done that would later be thought to be okay by the DOJ – and that was unacceptable. Sessions tries to walk it back – Leahy says that Goldsmith’s answer gets to stand on its own, and not the interpretations by Sessions or himself.

SEN. FEINGOLD QUESTIONS: Were you aware of any classified intel programs that were not briefed to the gang of 8? Goldsmith says that he just doesn’t know for certain, there were briefings to intel committees on every program that Goldsmith was briefed into – but not as to what extent or when. Goldsmith says that there were programs that were briefed to the gang of 8 that weren’t briefed to the whole intel committees.

Goldsmith says that some people felt that it was the lawyers’ job to find any justification for conduct, that was not his view. [CHS notes: Nor is it mine, FYI.] There was certainly pressure to go as far as the law would allow them to go within the administration. Feingold asks whether Congressional notification is legally binding requirement – and whether full notice rather than just to the gang of 8 is required? The first question, the answer is yes. The second aspect is more difficult to answer, and he’d have to study it more closely. Goes into the “one bomb away from getting rid of FISA” quote from Addington. Goldsmith says that this was emblematic of the sort of pressure that everyone in the Administration constantly felt – if they tied the President’s hands, they would be responsible for the repercussions from that, this is a pervasive fear in the administration. Goldsmith says that he did not share the concern about the FISA court being “obnoxious.” There was a hostility to the FISA court and the mechanism – there was a fear that the court would limit the President’s power.

Were there any remaining OLC opinions about which you had concerns that you hadn’t been able to fix? He wasn’t able to re-write the torture opinions and other replacement memos. The torture one was done in 2004, about 6 months after his resignation.

SCHUMER QUESTIONS: Thanking Goldsmith for being here. Is it true that you were prepared to resign over the TSP program? Yes, sir. His recollection that the President had sent Gonzales and Card, but not certain if VP had role in that. Made contemporaneous notes on the hospital visit and events before and afterward – can’t provide to committee because they are in the possession of the DOJ. Goldsmith says he would be happy to speak with the committee more extensively about some of these issues in closed session to discuss classified info – if the committee wants it and if the Administration lets them.

You suggest that dangerously few people were provided the legal analysis underlying the TSP. Schumer says it is astonishing to know that the NSA’s counsel and the AG himself were not in the loop. What do you make of former AG’s statements about this? Goldsmith says that it is very difficult to talk about this in an unclassified setting because there are labels and underlying realities. There was a lot of disagreement on this. There is a technical interpretation of what Gonzales said that is true – I could explain it to you in much greater detail in closed session, but I can’t do so in open session. [CHS notes: Depends on what the meaning of TSP is…] A bit of back and forth between Goldsmith and Leahy to discuss closed session potential for a minute.

Who was read into the program and when? Who got this legal analysis? Goldsmith, AG, OFPR Jim Baker and, subsequently, Comey. There was a struggle getting Comey read into the program. Goldsmith says he wanted to have more help from his lawyers, and it was challenging and there were very few lawyers who could work on this. Was there a legal reason that Comey wasn’t read in – their argument was a secrecy one – Schumer points out that this does not stand up. On the book, did anyone try to prevent you from disclosing information? Recriminations? Attempt to keep him from writing? No one tried to prevent, and doesn’t believe he’s suffered recriminations. There were discussions that he had with the DOJ on executive privilege.

Anything you wanted to write that didn’t end up being written due to privilege? Goldsmith says that he had a lot of self-restriction – so that limitation was self-imposed, but nothing that was taken out of what he wrote. Some restrictions for intel purposes.

Asks Goldsmith to detail information about opinions that were flawed, overbroad, or otherwise needed revision – and asks for this in writing.

Going to start a fresh thread…

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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