Violence... The story so far

Jack Goldsmith
Office of Legal Council, OLC, 2003-2004
Executive Branch, US Government

Extended Book Review
Harry Rosenberg

History is difficult to predict, but our view of this volume is that it will become a defining reference on the Bush administration. Goldsmith accurately reports the history, as he experienced it, in the Office of Legal Counsel. While he is critical of certain aspects of how the Bush Administration conducted the war on terror, he nonetheless sided with Bush on most issues. Goldsmith parts company with Bush over his style. Earlier war presidents Lincoln and Roosevelt actively sought the help of congress, the media, and others. Not so Mr. Bush; he goes it alone. For that reason Bush lost the services of one of the best conservative lawyers around. Goldsmith was far better at navigating the legal minefields in dealing with terror than all the political appointees on earth.

Goldsmith's strength as an author lies in his ability to paint clear pictures of arcane legal principles and how they affected his written legal opinions, the torture issues in particular. Goldsmith also has read his history, and is able from that to present his experience in government in proper perspective. Cheney's response to 9/11, for example, arose "from the same combination of factors that drove Roosevelt to take super-aggressive actions in the Japanese internment to meet a threat of subversives that pales in comparison to the post-9/11 threat," to quote Goldsmith. In another vein, he declares:

"...never in the history of the United States had lawyers had such extraordinary influence over war policy as they had after 9/11. The lawyers weren't necessarily expert on al Qaeda, or Islamic fundamentalism, or intelligence, or international diplomacy, or even the requirement of national security. But the lawyers--especially White House and Justice Department lawyers-- seemed to 'own' issues that had profound national security, and political and diplomatic consequences. ...Michael Scheuer, the longtime chief of the bin Laden unit at the CIA, told Congress in 2007. 'There is no operation at the CIA that is conducted without approval of lawyers. I can't go to the bathroom without a CIA lawyer.'"

With an ever-present pressure to save lives, fear often drives policy makers to operate to the very edges of the law. Lawyers are needed to draw those lines. Their opinions are vital. Goldsmith spent much of his time at OLC correcting faulty opinions of his predecessors. His opinions often ran counter to Administration wishes.

Goldsmith does an excellent job of illustrating the dilemma in deciding legality of action where lives are at stake. The law is one thing; survival is quite another. Where does one draw the line? What do we do when bin Laden declares: [It is] easy for us to provoke and bait. All we have to do is to send two mujahidin ...to raise a piece of cloth on which is written al-Qaeda in order to make the generals race there to cause Americans to suffer human, economic, and political losses." What if instead of a piece of cloth, he loads a nuclear warhead? This is a daily problem in our times.

To editorialize a bit, to be sure we need to respond to real threats. To be sure we need to be ready. Instead of a relatively blind "One Percent Doctrine", what about a "maximum likelihood" doctrine where we focus on stopping the worst possible events while gumming up their networks and activities in every way possible.?

This book is full of rich content. As a Republican, Goldsmith is sympathetic to Bush while acknowledging precedents and history created by both parties. His book is as evenhanded as it gets. We give Goldsmith and his book five stars *****.