|Assistant Attorney General for the Office of Legal Counsel|
October 2003 – July 2004
|President||George W. Bush|
|Preceded by||Jay S. Bybee|
|Succeeded by||Daniel Levin (acting)|
September 26, 1962 |
Memphis, Tennessee, U.S.
|Alma mater||Washington & Lee University (B.A.)
University of Oxford (B.A., M.A.)
Yale Law School (J.D.)
Jack Landman Goldsmith (born September 26, 1962) is a Harvard Law School professor who has written extensively in the field of international law, civil procedure, cyber law, and national security law. He has been "widely considered one of the brightest stars in the conservative legal firmament."
He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as a United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).
Education and career
Goldsmith attended and graduated from Pine Crest School in 1980. He then matriculated and graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours from the University of Oxford in 1986, a J.D. from Yale Law School in 1989, an M.A. from Oxford in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.
He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.
In August 2002, the Office of Legal Counsel, Department of Justice, had issued three documents, which became known as the Torture Memos or the Bybee memo (referring to one in particular.) The Bybee memo was directed to the Acting General Counsel of the Central Intelligence Agency in relation to interrogation of a detainee, Abu Zubaydah. It authorized certain enhanced interrogation techniques (later characterized as torture) for use with detained enemy combatants at the Guantanamo Bay detention center and other locations.
In addition, on March 14, 2003, John Yoo wrote a legal opinion at the request of the General Counsel of the Department of Defense, five days before the US invasion of Iraq, concluding that federal laws did not prohibit torture by interrogators of foreign subjects overseas. (This memo was not revealed until 2008.)
Office of General Counsel, DOD
He accompanied Haynes late that month as one of a large party of senior government appointees who traveled to military detention facilities at Guantanamo, Norfolk, Virginia; and Charleston, South Carolina to see detainees (including two United States citizens) and the conditions for enemy combatants. He had participated in discussions related to treatment.
Office of Legal Counsel, DOJ
In October 2003, Goldsmith was appointed to head the Office of Legal Counsel, which provides legal guidance to the president and all executive branch agencies, including those tasked with the interrogation of enemy combatants. This gave him the base for influencing debates within the Bush administration regarding the conduct of the War on Terror.
In April and May 2004, the Abu Ghraib prisoner torture and abuse scandal broke, and in June, the Bybee Torture Memo was leaked. Goldsmith considered it to be "tendentious, overly broad and legally flawed." He worked to have them changed. Including his challenges of White House staff on issues related to domestic surveillance and trials of terrorists, he was successful in moderating some of what he considered to be the previous "constitutional excesses" embraced by the White House.
In June 2004, Goldsmith withdrew as legally defective the Bybee Memo and the Torture Memos, and advised DOD not to rely on the March 2003 memo. At the same time, he submitted his resignation. Several years later he said this was to try to force the administration to accept his withdrawal of the memo. OLC legal opinions written in August 2002 related to the government's use of enhanced interrogation techniques, or torture, on individuals detained as enemy combatants. Newsweek reported that the CIA had regarded the Bybee memo as a "golden shield" against potential prosecution of officials involved in the program.
But, Goldsmith was unable to have his office complete what he intended as the replacement legal opinions before he resigned on June 30, 2004. He said later that he had felt he had lost the confidence of the administration. By December 2004, the replacement counsel at OLC had reaffirmed the previous legal opinions.
Goldsmith later said that one consequence of OLC's "power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes."
Warrantless wiretapping memos
During Goldsmith's tenure at the Office of Legal council, he wrote at least two legal memos authorizing a program known as Stellar Wind; his memos said that the president has inherent constitutional power to monitor Americans' communications without a warrant in a time of war.
In March 2004, the OLC concluded the e-mail program was not legal, and then-Acting Attorney General James Comey refused to reauthorize it. On May 6, 2004 Goldsmith wrote in a 108-page memo:
"We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief … that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority" to order warrantless wiretapping—"an authority that Congress cannot curtail."
The Terror Presidency
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions that were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
He wrote that David Addington, Chief of Staff to Vice President Dick Cheney, at one point said, "We’re one bomb away from getting rid of that obnoxious court," referring to the secret Foreign Intelligence Surveillance Act court that rules on warrants for secret wiretapping by the United States government.
Goldsmith claimed to have resigned in 2004 largely because he felt he had lost the confidence of administration leaders. He notes that the White House Counsel Alberto Gonzales asked him to remain, while Addington, an influential White House figure, asked which other OLC opinions he intended to overturn. Goldsmith wrote in his book, "Nobody had said no to them before."
To discuss his book, Goldsmith appeared on the Bill Moyers show on September 7, 2007. Moyers asked about the notable incident of his being in the hospital room of Attorney General John Ashcroft after he had been suddenly taken ill the day before. That day Ashcroft had ruled that Bush's domestic intelligence program, Stellar Wind, was illegal. It included provisions for warrantless wiretaps. Gonzales and Andrew Card, White House Chief of Staff, had come to try to persuade Ashcroft to change his mind and withdraw his memo. Goldsmith was there to support Ashcroft. Goldsmith said that, as Gonzales and Card left the room, Mrs. Ashcroft stuck out her tongue at them behind their backs. President Bush re-authorized the program over the formal objections of the Department of Justice.
Soon after, on NOW on PBS, Goldsmith continued to discuss the issues of how the government could deal with enemy combatants. In response to a suggestion that the regular criminal court system could be used to try them, he said, "Another reason you might not want to use the trial system is that the trial system, to be legitimate, has to have the possibility of acquitting someone of a crime." He thought it would be difficult for the government to conduct military trials while withholding evidence on the basis of national security, as it had done in the military commissions and tribunals.
The Special Program, a screenplay exploring Goldsmith's experiences in the White House’s Office of Legal Counsel, was sold to The Weinstein Company on December 16, 2013. According to the Spec Scout database, as of November 21, 2014, this project was "no longer set up with the Weinstein Company."
- Power and Constraint. W. W. Norton & Company. March 2012. ISBN 978-0-393-33533-0.
- The Terror Presidency. W. W. Norton & Company. June 2007. ISBN 978-0-393-06550-3.
- Who Controls the Internet? Illusions of a Borderless World (with Tim Wu, 2006) ISBN 0-19-515266-2
- The Limits of International Law (with Eric Posner). Oxford University Press. 2005. ISBN 0-19-516839-9.
- Goldsmith faculty homepage
- Jeffrey Rosen (September 9, 2007). "Conscience of a Conservative". New York Times Magazine. The New York Times. Retrieved 2007-09-05.
- "Introduction to Excerpts from 'The Terror Presidency'", Slate
- "Palace Revolt", MSNBC
- About Lawfare: A Brief History of the Term and the Site
- "A Top Pentagon Lawyer Faces a Senate Grilling On Torture", Newsweek, April 5, 2008, accessed January 18, 2013
- Mayer, Jane, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, 2008. p. 199
- Klaidman, Daniel (September 8, 2007). "'The Law Required It'". Newsweek.
- "Press Release", Department of Justice, June 30, 2004, retrieved December 15, 2010
- , Salon, May 18, 2009, Retrieved May 18, 2009
- Nakashima, Ellen (September 6, 2014). "Legal memos released on Bush-era justification for warrantless wiretapping". Washington Post.
- Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W. W. Norton & Company. pp. 149; 165–66. ISBN 978-0-393-06550-3.
- Interview: Jack Goldsmith, Bill Moyers, September 7, 2007
- NOW: "After Guantanamo" ~19:00, NOW on PBS
- The Special Program, Spec Scout