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.

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SEN. CARDIN QUESTIONS: Two words taken out for classified purposes, and a couple of aliases asked to be put into the mix. Clearance process took maybe 12 weeks. Discussing information about Addington, and juxtaposing that between Russian Federation behavior – the suspicion between Congress and Executive and Judiciary – would hope we all would want an independent judiciary here. One of the main disagreements had been role of FISA court – have we lost sight of that balance that we should have on independent oversight and accountability? Goldsmith says that he hopes not. Doesn’t mean that the role of the FISA Court was perfect for 2001 as it was set up in the 1970s, but the FISA Court has been quite independent. [CHS notes: The tension between the executive and the other branches has always been there. Cardin is trying to get at this being beyond the usual tension level and Goldsmith is demurring on going there for analysis.]

Goes into questions on Guantanamo. Goldsmith ducking questions on who is being held now. Cardin going into holding people for probable cause and lack of any decision on this standard/rationale in Guantanamo – Goldsmith says that the “dangerous” standard is a classic law of war standard. The problem is that there are a lot of concerns that we don’t normally have: endless nature of the war, no uniforms, compounded errors in terms of misidentification, etc. – regular criminal procedures not necessarily applicable, but do need better safeguards for the long term.

SEN. WHITEHOUSE QUESTIONS: In your book, you describe Comey as the most level-headed person you knew in government. Yes sir. At the same time you have the director of the FBI calling to say “don’t leave them alone with the AG – don’t let them throw Comey out of the room” with Ashcroft. There is a sense of emergency that those actions display – where does that come from? Goldsmith says that fundamentally what Comey said in his testimony was important: this issue that had been subject to months and months of work inside the DOJ, he worried that the WH was going to take advantage of a very sick man, in ways that seemed inappropriate and baffling in so many ways. Comey believed that the WH was going to try and get an incapacitated AG to approve the program.

This was the only time that Comey had ever put on his emergency beacon to get swiftly to the hospital. The stakes were enormously high, the issues were very important in government, and there was also a question of the integrity with the WH taking advantage of an AG who had been recently operated on. As Comey said, it would have been extremely inappropriate. You talk about the OLC traditions that were supposed to have been followed in terms of precedent. These traditional norms and practices were not followed – but should have been in times of crisis. Whitehouse says that these norms to protect integrity and practice pervade the DOJ, and serve as protection against problems. Goldsmith agrees. Whitehouse says that the DOJ practices have been evaded, violated and/or degraded. Next AG needs to assess and restore these practices – wondering your thoughts on this? Goldsmith says (1) following norms and precedent is crucially important for OLC and (2) new AG should do that sort of review – absolutely crucial to the running of the DOJ.

LEAHY QUESTIONS: Says that there was a view that working with Congress would impede the Presidential power. Goldsmith says that he thinks this viewpoint has been, on the whole, hurtful. Leahy refers to Goldsmith’s references to Nixon, Richardson, etc., and says that this sort of drumbeat of fear from the Bush Administration – the “you are either with us or with the terrorists” attitude – is this really an appropriate tactic? Don’t you run into a “crying wolf” problem? Goldsmith says that he didn’t think that the government was exaggerating the threat – it seemed like it was an understatement – they are much more concerned, anxious and fearful about the threat than they state publicly. Goldsmith says that he can’t say what si going on now that he is outside the government. Leahy says that isn’t what he was asking – when people express a disagreement with policy, why fall back on the “then you are supporting our enemies?” Goldsmith says that is very unhelpful – when you are considering an issue this important, even given the secrecy constraints, the more differing, testing opinions the better in terms of refining strategy and opinions.

If you have OLC opinions that need legislative changes, shouldn’t Congress be able to see the legal analysis in order to adequately legislate? Goldsmith says it seems that if you are asked to legislate based on an opinion, then it seems rational to see the opinions on which executive action will be based to correctly interpret what changes do or do not need to be made.

SEN. SPECTER QUESTIONS: Back to the torture memos – to the Bybee standard. Has that standard been abandoned in practice? Goldsmith says it has been abandoned in OLC standard – subsequent memo has repudiated that standard, but doesn’t know about whether it’s been repudiated in practice – Dec. 2004 opinion, but not privy to how the OLC is currently interpreting that standard. Gets into the questions on TSP – Goldsmith says that he cannot talk about the process behind it, he only saw the product, but he couldn’t discuss that in any event because of classified concerns. Discusses threat matrix issues that come up daily for PDB. Discussion on whether information in his book got into classified concerns – Goldsmith says anything in the book was cleared by the gov’t.

Pre-9/11, says that government was timid and unwilling to take the steps necessary to overcome risk aversion that held back full-throated defense on national security and actions that were needed according to Goldsmith. Says that inside the government, there is a fight every day on doing everything that can be done to stop threats versus preventing overstepping the laws and subjecting oneself to prosecution for overstepping those boundaries. Need clearer legislation on boundaries, need some guidelines for activities, and some “safe harbor” provisions. We ask people in the CIA to take out liability insurance for the potential for future prosecutions – that is an extraordinary statement to make to people who put themselves on the line to protect all of us.

LEAHY: Says it is difficult to do that with an administration that will not tell you what it is doing, why it is doing it, and what the long-term ramifications may be for its conduct. This administration has to realize that it is one of three co-equal branches of government – the idea that they can act unilaterally without consultation does a great disservice and a lot of damage to this nation. Goldsmith says that CIA and others are under pressure to do things in this vague quasi-criminal area – if they received proper guidance this would be an easier line not to cross. Leahy says that he agrees – but the administration has to act in good faith on this and, thus far, has not done so.

WHITEHOUSE QUESTIONS: Bybee torture statute standards pulled the “severe pain” standard from the health care statutes. Goldsmith says while looking around at other USCode standards was okay, that this particular standard was not exactly the best choice of standards in this context. Whitehouse says that this was a standard which allowed for significant abuse – Goldsmith says that was what gave him the pause to ask for changes in it as well.

Whitehouse thanks him for service, even though they disagree on many issues – that they both stand on particular standards of rule of law and others. That he wished that more did so.

Record will stay open for three weeks for clarification and further written answers. Hearing is adjourned.

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.

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