Harvard law Prof. Jack Goldsmith believes the president needs to be tough on terrorism. But when he took over the Justice Department's Office of Legal Counsel in 2003, Goldsmith found the Bush administration's legal justification for its tactics against terrorists to be highly flawed. So he overturned two of the department's key opinions underlying its counterterrorism strategy. In his new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, Goldsmith explains his struggle to put the policy on stronger legal ground and why he thinks the Bush administration's tactics may have hurt the power of the presidency in the long run.
What were the challenges facing the Bush administration in devising legal policies to fight terrorism?
They were under enormous, sort of indescribably intense, pressure to prevent another attack in the face of really harrowing threat reports and this knowledge that they would be responsible for the attack no matter what they did. This really pervaded everyday life in the Bush administration. At the same time, they found themselves bumping up against this unprecedented array of laws and criminal restrictions on presidential power. And they worried that their heat-of-judgment calls would be judged at a later time by criminal investigators that didn't share the sense of the danger or the political context in which they acted.
What are the biggest mistakes the Bush administration made in creating a legal framework for its terrorism policy?
I embrace their attempt to act right up to the edges of the law. The problem was the way in which they addressed [the] criminal restrictions. Rather than working with Congress and the courts constructively to bring the laws up to date to deal with 21st-century terrorism, they took what I call a go-at-it-alone approach, where through unilateral action and unilateral interpretation and legalistic defense, they just tried to deal with all of these problems on their own. And that ended up proving controversial and counterproductive.
Was it possible that they wouldn't have gotten the powers they needed if they had asked Congress?
In the last two summers, the president went to Congress and got extraordinarily broad authorization for military commissions and...unprecedented congressional authorizations for surveillance. Those episodes suggest that if he can get that from a Democratic Congress, then he probably could have done at least as well earlier from more congenial Congresses—and avoided a lot of the problems in the courts and in terms of public mistrust he has suffered since then.
What has been the effect of the Bush administration's focus on executive power?
One of the central ironies of the Bush administration, one of its legacies, is that it set out with an agenda of expanding presidential power but the means that it used to do that probably will have ended up reducing presidential power in many ways.
What kind of legal institutions does the country need to create to fight terrorism?
One of the fundamental problems we face is that this is an enemy that strikes very irregularly and over long periods of time and that the public cannot see. And so what that means is that over time since 9/11, the public's vigilance has waned even though it has not to the president, who has to read these threat reports every morning. That gap makes it hard for the president to do the things he needs to do to keep us safe.
A lot of it has to be done through presidential leadership, education, working with Congress, having public debate on the issues, and establishing more permanent and sensible institutions that all of the branches of our government are onboard for to deal with these problems.
Do you think Attorney General Alberto Gonzales misled Congress?
I have no idea what he was thinking or what his intention was when he made those statements. I believe that there is an interpretation of his statements that is truthful, and knowing him well, I believe he would not intentionally lie to Congress.
What key lessons do you think future presidents should take away from the Bush administration's approach?
Presidents have the ultimate responsibility to keep us safe, and presidents are blamed when things go wrong, no matter how well they do in trying to prevent disasters. But it doesn't follow that presidents should try to address and solve all the problems—particularly involving legal constraints—on their own. There are many lessons. One is the importance of working with other institutions of our government to achieve consensus in dealing with the problem, even when it's hard, even when it's difficult, even when it's contested.