Newsweek: Bush appointees revolted over executive branch 'overreach'
Goldsmith and other Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.
In December 2003, Goldsmith was steering the White House Official of Legal counsel. He informed the Defense Department that their March 2003 torture memo was "under review" and could no longer be relied upon. It is almost unheard-of for an administration to overturn its own OLC opinions. Cheney's chief of staff was beside himself. But his problems with Goldsmith were just beginning. In the jittery aftermath of 9/11, the Bush administration had pushed the top-secret National Security Agency to do a better and more expansive job of electronically eavesdropping on Al Qaeda's global communications. Under existing law—the Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a post-Watergate reform—the NSA needed (in the opinion of most legal experts) to get a warrant to eavesdrop on communications coming into or going out of the United States. Reasoning that there was no time to obtain warrants from a secret court set up under FISA (a sometimes cumbersome process), the Bush administration justified going around the law by invoking a post-9/11 congressional resolution authorizing use of force against global terror.
There was one catch: the secret program had to be reapproved by the attorney general every 45 days. It was Goldsmith's job to advise the A.G. on the legality of the program. In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as attorney general. The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend—the equally straitlaced and dogged Patrick Fitzgerald—to be the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. The White House was told: no reauthorization.
Ultimately, a compromise was worked out. But Goldsmith would eventually be sidelined and leave for Harvard, taking a post in academia.
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