Saturday, October 9, 2010

Staying within the limits of the law -- and what are those limits?

In a book full of startling details, one of the most striking incidents in Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration (2009, 2007), is the story of his raising the possibility that the President might simply disobey the law as part of the fight against terrorism. (80) The idea of conscientious Presidential lawbreaking is certainly troubling, but (as Goldsmith explains at 80-81) it is not necessarily disrespectful of the rule of law, if the President in effect says to the country, "Here is what I've done because I felt you needed it done. If you disagree, I stand ready to suffer the consequences."

But the reaction of Goldsmith's counterparts in the Administration was simply stunned amazement. "Gonzalez and Addington [counsel to Bush and Cheney, respectively] looked at me as if I were crazy." (80) They were not about to have President Bush deliberately violate the law. This from an administration notorious for having, as it seemed to many (including me), disregarded the bounds of law repeatedly! But that's the point -- the Bush Administration saw itself as bound by law, but (overstating a bit) declined to see any boundaries in the law.

Putting that point less pejoratively, Goldsmith writes that "Michael Hayden, former NSA Director General and now [in 2004] the Director of the CIA, would often say that he was 'troubled if [he was] not using the full authority of the law' after 9/11, and that he was 'going to live on the edge,' where his 'spikes will have chalk on them.' Hayden's view permeated the executive branch after 9/11, and in light of the clear public demand to act aggressively to stop the terrorist threat, I agreed with it. My job was to make sure the President could act right up to the chalk line of legality." (78)

Goldsmith believed that "even blurry chalk lines delineate areas that are clearly out of bounds" (78), and in his short tenure as head of the Justice Department's Office of Legal Counsel (OLC) he courageously withdrew a number of OLC opinions that he concluded had breached those bounds. But it seems fair to say that the gist of the torture opinion that John Yoo wrote and Jack Goldsmith withdrew was that in the end the various legal restraints thought to bar the President from authorizing torture were either so full of holes or so beyond constitutional authority that in fact the President's power was unlimited.

My impression is that once it is important to find an argument for a legal proposition, there is almost always an argument to be found. In fact, once money and time are applied to a legal problem, the chances are that many arguments can be found. That doesn't mean those arguments are correct, or convincing, but they are within the bounds of plausibility. Indeed, if the bounds of plausibility are simply the bounds of what conventional argument will accept as worth saying, the sheer repetition of a claim by people with prestige and influence is likely to expand the conventional bounds enough to bring the claim within them. All of which poses the question of whether Goldsmith was right that there really were chalk lines that separated what was lawful from what was unlawful. To our good fortune, Goldsmith felt there were and acted on that conviction; but was he right? That's a subject for posts to come.

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