Conscience of a Conservative

In the fall of 2003, Jack L. Goldsmith waswidely considered one of the brighteststars in the conservative legal firmament. A 40-year-old law professorat theUniversity of Chicago, Goldsmith had established himself, with hisfriend andfellow law professor John Yoo, as a leading proponent of the view thatinternationalstandards of human rights should not apply in cases before U.S. courts.Inrecognition of their prominence, Goldsmith and Yoo had been anointedthe “NewSovereigntists” by the journal Foreign Affairs.

Goldsmith had been hired the year before as a legal adviser to thegeneralcounsel of the Defense Department, William J. Haynes II. While at thePentagon,Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warningthat prosecutorsfrom the International Criminal Court might indict American officialsfor theiractions in the war on terror. Goldsmith described this threat as “thejudicialization of international politics.” No one was surprisedwhen he was hired in October 2003 to head the Office of Legal Counsel,thedivision of the Justice Department that advises the president on thelimitsof executive power. Immediately, the job put him at the center ofcriticaldebates within the Bush administration about its continuing response to9/11—debatesabout coercive interrogation, secret surveillance and the detention andtrialof enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although herefusedto discuss his resignation at the time, he had led a small group ofadministrationlawyers in a behind-the-scenes revolt against what he considered theconstitutionalexcesses of the legal policies embraced by his White House superiors inthewar on terror. During his first weeks on the job, Goldsmith haddiscoveredthat the Office of Legal Counsel had written two legal opinions—bothdrafted by Goldsmith’s friend Yoo, who served as a deputy in the office—aboutthe authority of the executive branch to conduct coerciveinterrogations. Goldsmithconsidered these opinions, now known as the “torture memos,” tobe tendentious, overly broad and legally flawed, and he fought tochange them.He also found himself challenging the White House on a variety of otherissues,ranging from surveillance to the trial of suspected terrorists. Hiseffortssucceeded in bringing the Bush administration somewhat closer to whatGoldsmithconsidered the rule of law—although at considerable cost to Goldsmithhimself. By the end of his tenure, he was worn out. “I was disgustedwith the whole process and fed up and exhausted,” he told me recently.

After leaving the Office of Legal Counsel, Goldsmith was uncertainaboutwhat, if anything, he should say publicly about his resignation. Hissilencecame to be widely misinterpreted. After leaving the Justice Department,heaccepted a tenured professorship at Harvard Law School, where hecurrentlyteaches. During his first weeks in Cambridge, in the fall of 2004, someofhis colleagues denounced him for what they mistakenly assumed was hisrolein drafting the torture memos. One colleague, Elizabeth Bartholet,complainedto a Boston Globe reporter that the faculty was remiss in notinvestigatingany role Goldsmith might have played in “justifying torture.” “Itwas a nightmare,” Goldsmith told me. “I didn’tsay anything to defend myself, except that I didn’t do the things I wasaccused of.”

Now Goldsmith is speaking out. In a new book, “The TerrorPresidency,” whichwill be published later this month, and in a series of conversations Ihadwith him this summer, Goldsmith has recounted how, from his first weeksonthe job, he fought vigorously against an expansive view of executivepowerchampioned by officials in the White House, including Alberto Gonzales,whowas then the White House counsel and who recently resigned as attorneygeneral,and David Addington, who was then Vice President Cheney’s legal adviserand is now his chief of staff. Goldsmith says he is not speaking outfor themoney; though he received a low six-figure advance for the book, he is,afterdeducting some minor expenses, donating the advance and any profits tocharity.Nor is he speaking out because he disagrees with the basic goals of theBushadministration in the war on terror. “I shared, and I still share,a lot of their concerns about what we have to do to meet the terroristthreat,” hetold me. When I asked whether he thought Gonzales should have resignedandwhether Addington should follow, he demurred. “I was friends withGonzales and feel very sorry for him,” he said. “Wegot along really well. I admired and respected Addington, even when Ithoughthis judgment was crazy. They thought they were doing the right thing.”

Goldsmith told me that he has decided to speak publicly about hisbattlesat the Justice Department because he hopes that “future presidentsand people inside the executive branch can learn from our mistakes.” Inhis view, American presidents for the foreseeable future will, likeGeorgeW. Bush, face enormous pressure to be aggressive and pre-emptive intakingmeasures to prevent another terrorist attack in the United States. Atthe sametime, Goldsmith notes, everywhere the president looks, critics—aswellas his own lawyers—are telling him that pre-emptive actions mayviolateinternational law as well as U.S. criminal law. What, exactly, are thelegallimits of executive power in the post-9/11 world? How shouldadministrationlawyers negotiate the conflict between the fear of attacks and the fearoflawsuits?

In Goldsmith’s view, the Bush administration went about answeringthesequestions in the wrong way. Instead of reaching out to Congress and thecourtsfor support, which would have strengthened its legal hand, theadministrationasserted what Goldsmith considers an unnecessarily broad, “go-it-alone”viewof executive power. As Goldsmith sees it, this strategy has backfired.“Theyembraced this vision,” he says, “because they wantedto leave the presidency stronger than when they assumed office, but theapproachthey took achieved exactly the opposite effect. The central irony isthat peoplewhose explicit goal was to expand presidential power have diminishedit.”

Ihave known Goldsmith since we were at law school together. Inaddition to beingintellectually curious and having good judgment, he always struck me asa pragmaticrather than an ideological conservative. Born in 1962 in Memphis,Goldsmithis the son of a former Miss Teenage Arkansas whose parents ran acelebratednightclub. Growing up, he had two stepfathers, one of whom he describesinthe book as “amob-connected Teamsters executive” whowas “Jimmy Hoffa’s right-hand man and for decades a leadingsuspect in Hoffa’s disappearance.” His upbringing seemsto have contributed to his down-to-earth sensibility. After earningdegreesat Washington and Lee University and Oxford, he thrived at Yale LawSchool,where he developed what he calls “an allergic reaction to Yale’sleft-wing jurisprudence and political correctness.” He later clerkedfor Justice Anthony Kennedy on the Supreme Court and taught law at theUniversitiesof Virginia and Chicago. He is married, and he and his wife have twosons.

When Goldsmith was asked, four years ago, to head the Office ofLegal Counselat the Justice Department, he jumped at the opportunity. Working forthe officeis one of the most prestigious jobs in government: former heads anddeputiesinclude the Supreme Court Justices William H. Rehnquist, Antonin ScaliaandSamuel A. Alito Jr. The Office of Legal Counsel interprets all lawsthat bearon the powers of the executive branch. The opinions of the head of theofficeare binding, except on the rare occasions when they are reversed by theattorneygeneral or the president.

In the post-9/11 era, the office has played a crucial role inproviding legalcover to jittery bureaucrats fearful that officials in the White House,Defenseand State Departments or the C.I.A. might be prosecuted for theiractions inthe war on terror. The Justice Department, after all, is the branch ofgovernmentresponsible for prosecutions, and its own prosecutors—as well asindependentcounsels—would be hard pressed to prosecute someone who had reliedon the department’s own opinions in good faith. For this reason, theoffice has two important powers: the power to put a brake on aggressivepresidentialaction by saying no and, conversely, the power to dispense whatGoldsmith calls “freeget-out-of jail cards” by saying yes. Its opinions, he writesin his book, are the equivalent of “an advance pardon” foractions taken at the fuzzy edges of criminal laws.

In the Bush administration, however, the most importantlegal-policy decisionsin the war on terror before Goldsmith’s arrival were made not by theOffice of Legal Counsel but by a self-styled “war council.” Thisgroup met periodically in Gonzales’s office at the White House orHaynes’soffice at the Pentagon. The members included Gonzales, Addington,Haynes andYoo. These men shared a belief that the biggest obstacle to a vigorousresponseto the 9/11 attacks was the set of domestic and international laws thatarosein the 1970s to constrain the president’s powers in response to theexcessesof Watergate and the Vietnam War. (The Foreign IntelligenceSurveillance Actof 1978, for example, requires that executive officials get a warrantbeforewiretapping suspected enemies in the United States.) The head of theOfficeof Legal Counsel in the first years of the Bush administration, JayBybee,had little experience with national-security issues, and he delegatedresponsibilityfor that subject matter to Yoo, giving him the authority to draftopinionsthat were binding on the entire executive branch.

Yoo was a “godsend” toa White House nervous about war-crimes prosecutions, Goldsmith writesin hisbook, because his opinions reassured the White House that no officialwho reliedon them could be prosecuted after the fact. But Yoo’s direct access toGonzales angered his boss, Attorney General John Ashcroft, according toGoldsmith.(Neither Ashcroft nor Gonzales responded to requests for interviews forthisarticle.) Ashcroft, Goldsmith says, felt that Gonzales and the warcouncilwere usurping legal-policy decisions that were properly entrusted tothe attorneygeneral, such as the creation of military commissions, which Gonzalessupportedand Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left theOfficeof Legal Counsel and Gonzales suggested Yoo as a candidate to lead it.Ashcroftrejected the suggestion. Yoo then recommended his friend Goldsmith tothe WhiteHouse as a suitable alternative. Goldsmith interviewed with Ashcroft attheJustice Department and with Gonzales and Addington at the White House.In hisinterview with Addington and Gonzales, Goldsmith recalls talking aboutthedangers of international law and the importance of militarycommissions. Hegot the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, herecalls thathe received a phone call from Gonzales: the White House needed to knowas soonas possible whether the Fourth Geneva Convention, which describesprotectionsthat explicitly cover civilians in war zones like Iraq, also coveredinsurgentsand terrorists. After several days of study, Goldsmith agreed withlawyersin several other federal agencies, who had concluded that theconvention appliedto all Iraqi civilians, including terrorists and insurgents. In ameeting withAshcroft, Goldsmith explained his analysis, which Ashcroft accepted.Later,Goldsmith drove from the Justice Department to the White House for ameetingwith Gonzales and Addington. Goldsmith remembers his deputy PatrickPhilbinturning to him in the car and saying: “They’re going tobe really mad. They’re not going to understand our decision. They’venever been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presencein the room—a large man with large glasses and an imposingsalt-and-pepperbeard” who was “known throughout the bureaucracyas the best-informed, savviest and most conservative lawyer in theadministration,someone who spoke for and acted with the full backing of the powerfulvicepresident, and someone who crushed bureaucratic opponents.” WhenGoldsmith presented his analysis of the Geneva Conventions at the WhiteHouse,Addington, according to Goldsmith, became livid. “The presidenthas already decided that terrorists do not receive Geneva Conventionprotections,” Addingtonreplied angrily, according to Goldsmith. “You cannot questionhis decision.” (Addington declined to comment on this and otherdetails concerning him in this article.)

Goldsmith then explained that he agreed with the president’sdeterminationthat detainees from Al Qaeda and the Taliban weren’t protected underthe Third Geneva Convention, which concerns the treatment of prisonersof war,but that different protections were at issue with the Fourth GenevaConvention,which concerns civilians. Addington, Goldsmith says, was not persuaded.(Goldsmithtold me that he has checked his recollections of this and othermeetings withat least one other participant or with someone to whom he described themeetingssoon after.)

Months later, when Goldsmith tried to question another presidentialdecision,Addington expressed his views even more pointedly. “If you rulethat way,” Addington exclaimed in disgust, Goldsmith recalls, “theblood of the hundred thousand people who die in the next attack will beon your hands.”

Theconflict over the Geneva Conventions was just the beginning. About sixweeksafter he started work, Goldsmith became aware that there might be whathe calls “potentiallyproblematic” opinions draftedby the Office of Legal Counsel. These were the “torture memos,” oneof which was written in August 2002 and the other in March 2003. TheAugustopinion defined torture as pain “equivalent in intensity to thepain accompanying serious physical injury, such as organ failure,impairmentof bodily function or even death.” Goldsmith concluded that thisopinion defined torture far too narrowly. He also had concerns aboutthe March2003 opinion, the contents of which remain classified but which dealtwiththe military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the “extremelybroad and unnecessary analysis of the president’s commander in chiefpower” in the memos. The August opinion, for example, boldly concludedthat “any effort by Congress to regulate the interrogation ofbattlefield combatants would violate the Constitution’s sole vestingof the Commander in Chief authority in the President.” Goldsmithsays he believed at the time, and still does, that “this extremeconclusion” would call into question the constitutionality offederal laws that limit interrogation, like the War Crimes Act of 1996,whichprohibits grave breaches of the Geneva Conventions, and the UniformCode ofMilitary Justice, which prohibits cruelty and maltreatment. He alsofound thetone of both opinions “tendentious” rather than cautiousand feared that they might be interpreted as an attempt to immunizegovernmentofficials for genuinely bad acts.

Yoo has acknowledged drafting the August 2002memo, which he says was the basis for the interrogation of AbuZubaydah, atop Al Qaeda operative. Yoo also wrote and signed the March 2003opinion. Hisfriendship with Goldsmith made it especially awkward for Goldsmith tocriticizethe memos. “I was basically taking steps to fix the mistakes of a closefriend,who I knew would be mad about it,” Goldsmith told me. “We don’ttalk anymore, and that’s one of the many sad things about my time ingovernment.”

In December 2003, Goldsmith decided that he had to withdraw theMarch opinion—thatis, he had to tell administration officials that they could no longerrelyon it. “But figuring out how to withdraw it was very tricky,” hetold me, “since withdrawal would frighten everyone who reliedon the opinions in a very sensitive area.” In the past, the Officeof Legal Counsel had occasionally changed its legal positions betweenpresidentialadministrations to reflect different legal philosophies, but Goldsmithcouldfind no precedent for the office withdrawing an opinion drafted earlierbythe same administration—especially on a matter of such importance.Goldsmith concluded that he could immediately tell the DefenseDepartment tostop relying on the March opinion, since he was confident that it wasnot neededto justify the 24 interrogation techniques the department was actuallyusing,including two called “Fear Up Harsh” and “Prideand Ego Down,” which were designed to make subjects nervous withoutcrossing the line into coercion. But the withdrawal of the Augustopinion wasa much harder call. The August opinion provided the legal foundationfor theC.I.A.’s interrogation program, Goldsmith says, which he consideredmuchcloser to the legal line. (He refused to discuss the details of theprogram.)

Goldsmith, however, says he didn’t have the time or resources tocreatea replacement opinion immediately. In his initial months on the job,his attentionwas focused on the more pressing matter of addressing legal issuessurroundingthe terrorist-surveillance program. In April 2004, however, Goldsmith’spriorities were reversed when the Abu Ghraib scandal broke. Then, inJune ofthat year, Yoo’s August 2002 opinion was leaked to the media. “Afterthe leak, there was a lot of pressure on me within the administrationto standby the opinion,” Goldsmith told me, “and the problemwas that I had decided six months earlier that I couldn’t stand by theopinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrewthe opinion. Goldsmith made the decision himself, in consultation withPhilbinand Deputy Attorney General James B. Comey, both of whom, Goldsmithsays, agreedit was the right thing to do. He then told Ashcroft, who was, Goldsmithwrites, “unbelievablymagnanimous: it had happened on his watch, and he could have overruledme,and he didn’t.” Goldsmith was concerned, however, that theWhite House might overrule him. So he made a strategic decision: on thesameday that he withdrew the opinion, he submitted his resignation,effectivelyforcing the administration to choose between accepting his decision andlettinghim leave quietly, or rejecting it and turning his resignation into abig newsstory. “If the story had come out that the U.S. government decidedto stick by the controversial opinions that led the head of the Officeof LegalCounsel to resign, that would have looked bad,” Goldsmith toldme. “The timing was designed to ensure that the decision stuck.”

Again, according to Goldsmith, Addington was furious. During hisbrief timein office, Goldsmith had withdrawn not only the two torture opinionsbut alsoothers. (He refused to discuss the other opinions with me.) In the end,hesays, he had withdrawn more opinions than any of his predecessors.Shortlybefore he resigned, Goldsmith says, Addington confronted him inGonzales’soffice, pulling out of his jacket pocket a 3-by-5 card that listed thewithdrawnopinions. “Since you’ve withdrawn so many legal opinionsthat the president and others have been relying on,” Addingtonsaid, according to Goldsmith, “we need you to…let us know which [of the remaining] ones you still stand by.”Goldsmithrecalls that Gonzales, in his own farewell chat with him, said, “Iguess those opinions really were as bad as you said.”

Looking back,Goldsmith says, he criticizes but does not vilify Yoo, whom he believeswroteand defended the opinions in good faith. Praising Yoo’s “knowledge,intelligence and energy,” he writes in his book that “thepoor quality of a handful of very important opinions is probablyattributableto some combination of the fear that pervaded the executive branch,pressurefrom the White House and Yoo’s unusually expansive and self-confidentconception of presidential power.”

I have known Yoo since we were in law school together as well, andI calledhim for a response. “I think Jack and I had a good-faith disagreement,but I think at some level this was elevating form over substance,” hesaid. Yoo said that in writing the torture memo, he experienced nopressurefrom the White House, which he described as “hands off.” Instead,he said, “there was an urgency to decide so that valuable intelligencecould be acquired from Abu Zubaydah, before further attacks couldoccur.” Yoosays it is his understanding that no policies or interrogationtechniques changedas a result of the withdrawal of the torture memo, noting that allpoliciesthat were legal under the withdrawn opinions are also acknowledged aslegalunder the opinion that eventually replaced the withdrawn ones. (Thatopinionwas issued in December 2004, six months after Goldsmith’s resignation,and was signed by Daniel Levin, his acting successor as head of theOfficeof Legal Counsel.)

Yoo also rejects the criticism that his reasoning was unnecessarilybroad,describing the criticism of his opinion as something that could havebeen madeonly with the benefit of hindsight. “You can claim it’stoo broad after the policy has been decided on, but I didn’t have thatluxury in the spring of 2002,” he told me. “If you’reproviding the legal advice before they choose the policy, how could youknow?”

Goldsmith puts the bulk of the responsibility for the excesses ofthe Officeof Legal Counsel on the White House. “I probably had a hundredmeetings with Gonzales, and there was only one time I was talking abouta national-securityissue when Addington wasn’t there,” Goldsmith told me. “Myconflicts were all with Addington, who was a proxy for the vicepresident.They were very, very stressful.”

During his tenure at the Officeof Legal Counsel, Goldsmith also clashed with Addington over thedetentionand trial of suspected terrorists. In January 2004, the Supreme Courtagreedto review a lower-court decision approving the detention of YaserHamdi, anAmerican citizen then being held as an enemy combatant. A group ofadministrationlawyers including Goldsmith met with Gonzales and Addington inGonzales’soffice to discuss the implications of the case. “Whydon’t we just go to Congress and get it to sign off on the wholedetentionprogram?” Goldsmith recalls asking, reasoning that the SupremeCourt would be less likely to strike down a detention program inwartime ifCongress had explicitly supported it. According to Goldsmith, Addingtonshotdown the idea.

Not long before Goldsmith left, the Supreme Court approved inJune 2004, in the Hamdi case, the detention power itself but put somemodestrestrictions on the administration’s ability to detain citizens withouttrial. Afterward, Gonzales, Addington, Goldsmith and others, includingthedeputy solicitor general, Paul Clement, met again, Goldsmith recalls,and heand Clement again proposed going to Congress to put theadministration’slegal strategy on a more sound footing. Once again, Goldsmith told me,theadvice was ignored, and the White House continued to operate as if itassumedit could avoid a strong rebuke from the Supreme Court.

That rebuke finally arrived, however, last year in theHamdan case, when the Supreme Court rejected the administration’s claimthat it could try suspected terrorists in military commissions createdwithoutCongressional approval. In a further blow to the administration, thecourtheld that the legal protections of “common article 3” ofthe Geneva Conventions, which contains minimal protections fordetainees inwartime, also applied in the war against Al Qaeda. Goldsmith says hebelievesthis ruling was “legallyerroneous” but “hugely consequential.” Itprovided detainees at Guantánamo with more rights than theadministrationhad ever acknowledged, and it implied that the War Crimes Act might beusedto prosecute administration officials for their treatment of detainees.

In debates over the detention of suspected terrorists, Goldsmithsays hewas struck by how Addington’s efforts to expand presidential powerultimatelyweakened it. In September 2006, two months before the midtermelections, Busheventually did ask Congress to approve his military commissions, andCongresspromptly passed a law that gave him everything he asked for,authorizing manyaspects of the military commissions that the Supreme Court had struckdown.Although Bush had won the battle, Goldsmith sees the refusal to go toCongressearlier as the cause of an unnecessary Supreme Court defeat. “I’mnot a civil libertarian, and what I did wasn’t driven by concerns aboutcivil liberties per se,” he told me. “It was a disagreementabout means, not ends, driven by a desire to make sure that theadministration’scounterterrorism policies had a firm legal foundation.”

In Goldsmith’sestimation, the unnecessary unilateralism of the Bushadministration reachedits apex in the controversy over wiretapping and secret surveillance.Goldsmithsays he did not originally intend to mention the surveillancecontroversy inhis book. But he says he was infuriated, soon before finishing hismanuscript,to be handed a subpoena in Cambridge by F.B.I. agents ordering him totestifyin a criminal investigation into the leaks that resulted in stories byJamesRisen and Eric Lichtblau in The New York Times about the NationalSecurityAgency’s warrentless wiretapping. After having a public conversationwith the F.B.I. in the middle of Harvard Square about aspects of theterrorist-surveillanceprogram, Goldsmith concluded he could discuss the same topics in hisbook.

Goldsmith emphasizes that he was not opposed to investigating theleak, whichhe agreed with President Bush did “great harm to the nation.” Inaddition, he shared the White House’s concern that the ForeignIntelligenceSurveillance Act might prevent wiretaps on international callsinvolving terrorists.But Goldsmith deplored the way the White House tried to fix theproblem, whichwas highly contemptuous of Congress and the courts. “We’reone bomb away from getting rid of that obnoxious [FISA] court,”Goldsmithrecalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other topofficials treatedthe Foreign Intelligence Surveillance Act the same way they handledother lawsthey objected to: “They blew through them in secret based on flimsylegal opinions that they guarded closely so no one could question thelegalbasis for the operations,” he writes. Goldsmith’s firstexperienced this extraordinary concealment, or “strictcompartmentalization,” inlate 2003 when, he recalls, Addington angrily denied a request by theN.S.A.’sinspector general to see a copy of the Office of Legal Counsel’s legalanalysis supporting the secret surveillance program. “Before Iarrived in O.L.C., not even N.S.A. lawyers were allowed to see theJusticeDepartment’s legal analysis of what N.S.A. was doing,” Goldsmithwrites.

Goldsmith also witnessed perhaps the most well-known confrontationover theadministration’s aggressive tactics: the scene at Ashcroft’s hospitalbed on March 10, 2004, when Gonzales and Andrew Card, the White Housechiefof staff, visited the hospital to demand that the ailing Ashcroftapprove,over Goldsmith and Comey’s objections, a secret program that was aboutto expire. (Goldsmith refuses to identify the program, but Robert S.MuellerIII, the F.B.I. director, has publicly indicated it was the terroristsurveillanceprogram.) As he recalled it to me, Goldsmith received a call in theeveningfrom his deputy, Philbin, telling him to go to the George WashingtonUniversityHospital immediately, since Gonzales and Card were on the way there.Goldsmithraced to the hospital, double-parked outside and walked into a darkroom. Ashcroftlay with a bright light shining on him and tubes and wires coming outof hisbody.

Suddenly, Gonzales and Card came in the room and announced that theywere there in connection with the classified program. “Ashcroft, wholookedlike he was near death, sort of puffed up his chest,” Goldsmithrecalls. “All of a sudden, energy and color came into his face,and he said that he didn’t appreciate them coming to visit him underthose circumstances, that he had concerns about the matter they wereaskingabout and that, in any event, he wasn’t the attorney general at themoment;Jim Comey was. He actually gave a two-minute speech, and I was sure attheend of it he was going to die. It was the most amazing scene I’ve everwitnessed.”

After a bit of silence, Goldsmith told me, Gonzales thankedAshcroft, and he and Card walked out of the room. “At that moment,”Goldsmithrecalled, “Mrs. Ashcroft, who obviously couldn’t believewhat she saw happening to her sick husband, looked at Gonzales and Cardasthey walked out of the room and stuck her tongue out at them. She hadno ideawhat we were discussing, but this sweet-looking woman sticking out hertonguewas the ultimate expression of disapproval. It captured the feeling intheroom perfectly.”

Goldsmith, Comey, Mueller and other Justice Departmentofficials were prepared to resign en masse if the White Houseimplemented theprogram over their objections. Two days later, Comey had a conversationatthe White House with Bush in which the president told him to dowhatever wasnecessary to make the program legal. And in the end, the entirecontroversywas arguably unnecessary since the program was eventually approved byCongressand brought, at least partially, under the supervision of the FISACourt, asit could have been from the beginning. “Iwas sure the government was going to melt down,” Goldsmith toldme. “No one anticipated they were going to reverse themselves.”

Theheroes of Goldsmith’s book—his historical models ofpresidential leadership in wartime—are Presidents Lincoln andFranklinD. Roosevelt. Both of them, as Arthur Schlesinger noted in his essay“War andthe Constitution,” “were lawyers who, while dulyrespecting their profession, regarded law as secondary to politicalleadership.” InGoldsmith’s view, an indifference to the political process hasultimatelymade Bush a less effective wartime leader than his greatestpredecessors. Surprisingly,Bush, who is not a lawyer, allowed far more legalistic positions in thewaron terror to be adopted in his name, without bothering to try topersuade Congressand the public that his positions were correct. “I don’tknow if President Bush understood how extreme some of the argumentswere aboutexecutive power that some people in his administration were making,”Goldsmithtold me. “It’s hard to know how he would know.”

The Bush administration’slegalistic “go-it-alone approach,” Goldsmithsuggests, is the antithesis of Lincoln and Roosevelt’s willingness tocollaborate with Congress. Bush, he argues, ignored the truism thatpresidentialpower is the power to persuade. “The Bush administration has operatedon an entirely different concept of power that relies on minimaldeliberation,unilateral action and legalistic defense,” Goldsmith concludesin his book. “This approach largely eschews politics: the needto explain, to justify, to convince, to get people on board, tocompromise.”

Goldsmithsays he remains convinced of the seriousness of the terrorist threatand theneed to take aggressive action to combat it, but he believes, quotinghis conservativeHarvard Law colleague Charles Fried, that the Bush administration“badlyoverplayed a winning hand.” In retrospect, Goldsmith told me, Bush“couldhave achieved all that he wanted to achieve, and put it on a firmerfoundation,if he had been willing to reach out to other institutions ofgovernment.” Instead,Goldsmith said, he weakened the presidency he was so determined tostrengthen. “Idon’t think any president in the near future can have the same attitudetoward executive power, because the other institutions of governmentwon’tallow it,” he said softly. “The Bush administrationhas borrowed its power against future presidents.”