A few years ago, someone asked me what I thought about a professor, newly arrived at Harvard Law School from service in the Department of Justice, some of whose colleagues were shunning him for what they assumed was his role in the Bush administration’s pro-torture and anti-civil-liberties policies. I replied that I suspected they were wrong about the facts. The professor in question had edited a thought-provoking casebook and written some notable, well-reasoned law review articles. It was possible that he’d gone along with the administration’s power-mad abuses, but he just seemed too intelligent and sensible to have been one of the bad guys.
The past few years have proven me right. A series of articles suggested that Jack Goldsmith, in his role as the head of the Office of Legal Counsel, had in fact pushed back vigorously against John Yoo’s “torture memos,” forcing the Department to repudiate them. He’d done so in the face of enormous pressure, insisting that the administration could not make its stand on opinions that were legally erroneous. Others were disturbed by the opinions; Goldsmith did something about them—and immediately left government service.
As his forthcoming book makes clear, Goldsmith was and remains a conservative Republican. He and I differ both on the proper extent of government power in responding to terrorism and on legal issues relating to that power. His respect for the legal constraints on executive authority is partly tactical. He thinks that overreaching legal claims ultimately trigger a backlash that gives the President less effective power than coalition-building and greater legal caution would have. But he looks far more favorably on that power than I do.
Here, I would say, is why. Goldsmith is an honorable man and committed to the rule of law. That commitment led him to insist that the Office of Legal Counsel not claim that the President’s “inherent authority” trumps all, no matter how expedient it would be. If the government were composed solely of Jack Goldsmiths, we wouldn’t have anywhere near so much to fear from it. But it is not, and particularly not in the Bush administration. It has been filled instead with people for whom adherence to the rule of law is not a principle commanding much weight. The same considerations that make it necessary to insist on the primacy of law in dealing with them also counsel against changing the law to give them free rein.
This point, and Goldsmith’s stand, bring to mind that famous exchange from A Man for All Seasons:
Roper: So, now you’d give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws, from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.