Today, the New York Times released a preview of Prof. Jack Goldsmith's upcoming book, The Terror Presidency: Law and Judgment Inside the Bush Administration. Now a professor at Harvard Law School, Goldsmith was previously the head of the Department of Justice's (DOJ's) Office of Legal Counsel, an office deeply involved in developing the legal theories underpinning the Administration's expansion of Executive power.
The NYT preview provides a cornucopia of information about these legal theories, focusing primarily on the infamous torture debate. But it also contains important insight into the "flimsy legal opinions" supporting the warrantless wiretapping program:
[Goldsmith] shared the White House?s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. ?We?re one bomb away from getting rid of that obnoxious [FISA] court,? Goldsmith recalls [VP Cheney's legal counsel and chief-of-staff David] Addington telling him in February 2004.
In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: ?They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,? he writes. Goldsmith?s first experienced this extraordinary concealment, or ?strict compartmentalization,? in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.?s inspector general to see a copy of the Office of Legal Counsel?s legal analysis supporting the secret surveillance program. ?Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department?s legal analysis of what N.S.A. was doing,? Goldsmith writes.
By shielding its legal theories under a cloak of secrecy, the Administration hoped to insulate their radical positions from any form of review. Just as the Administration is attempting to use the 'state secret privilege' to stop any court from reviewing or ruling upon its domestic surveillance, it used ?strict compartmentalization" to prevent internal review. The reason is simple, if Machiavellian: If one can prevent dissenters from access to the legal theories, it is that much easier to dismiss their concerns. If one can stop courts from ruling, there's no one to say you were wrong.
Hence, the Administration has pulled out all the stops in an attempt to eliminate legal review. It refused the appropriate clearances for an investigation by the Justice Department's Office of Professional Responsibility, stonewalled Congressional subpoenas for the legal memos, concealed FISA court orders ruling on the legal theories, and asserted the state secret privilege in civil lawsuits trying to stop the surveillance.
The latest insidious move is to seek a get-out-of-jail-free card for the telecoms who supported the domestic spying. This is not just an attempt to protect the pocketbooks of a multi-billion dollar industry. The Administration hopes that a cowed Congress will cut off the cases against the telecoms before any court gets to rule of its "flimsy legal opinions," and leave its unprecedented expansion of Executive power unsullied by judicial hands. But it's not too late. Take action now to fight the warrantless surveillance and stand up for the rule of law.