The Terror–Or Maybe Something Else–Presidency

I just finished Jack Goldsmith’s The Terror Presidency. As I’ve been reading, I’ve been focusing primarily on the insight it might offer onto the Terror Tape Destruction. I’ll come back to this, but the short version is that, from June 2004 to December 2004, the CIA had no legal cover for the water-boarding they had already done, which explains why they’d want to destroy the evidence they had been doing it; but that still doesn’t explain why they’d wait until November 2005 to destroy the tapes, which seems to be the really pressing question right now.

But I appreciated Goldsmith’s book, too, for the way that reading an intelligent and sincere conservative helps me to see my disagreements with conservatives more clearly.

While I was reading the book, I found myself repeatedly bugged by several of Goldsmith’s blind spots, not least for his explanation that the excesses of the Administration are attributable to the accountability a President has and the fear everyone had of another terrorist attack.

The main explanation is fear. When the original opinion [on torture] was written in the weeks before the first anniversary of 9/11, threat reports were pulsing as they hadn’t since 9/11. … "We were sure there would be bodies in the streets" on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.


I have been critical of my predecessors’ actions in writing the interrogation opinions. But I was not there when they made the hard calls during the frightening summer of 2002. Instead, I surveyed the scene from the politically changed and always-more-lucid after-the-fact perspective. When I made tough calls in crisis situations under pressure and uncertainty, I realized that my decisions too would not be judged from the perspective of threat and danger in which they were taken. … Recognizing this, I often found myself praying that I would predict the future correctly.

Now, much as I respect Goldsmith’s intelligence, I’m convinced he conjures this explanation as a way to understand how someone like David Addington could be shredding the Constitution, but be doing it in good faith. It’s all understandable and desirable, Goldsmith seems to be saying, in that it will keep us safe in the long run. And David Addington means well, really he does.

But there are several problems with this conceit. First, never once does Goldsmith acknowledge that the Bush Administration’s intense fear stems not just from a fear of potential future events, but also from a fear heightened by past failure. For all Richard Clarke’s (and Clinton’s) efforts, Bush and his top aides refused to believe in the threat posed by Al Qaeda and instead focused primarily on Iraq. Bush dismissed a threat warning about Al Qaeda’s determination to strike in the US with the insinuation that his briefer was just interested in covering his ass. So while Goldsmith repeatedly claims Presidents will be held accountable for national security failures, he never acknowledges that President Bush managed to dodge responsibility for the attack that he might have prevented, if he had just listened to his advisors and briefers. I’m sure folks like Richard Clarke had a realistic fear of the damage Al Qaeda could do. But the fear of the Bush Administration has a whole different taint to it, that of a crowd that gambled and lost.

Speaking of which, it’s not until page 209 when Goldsmith addresses the real elephant in the room–the Iraq War (though he does discuss Iraq in the context of discussions about interrogation policies). Goldsmith admits that the Iraq War hurt Bush’s credibility in other matters.

The administration lost pubic trust in the fight against terrorists when it premised a major war on a terror-related threat of weapons of mass destruction that turned out to be wrong. And the war in Iraq has spilled over to and infected everything else that this administration does in the broader war on terrorism.

But Goldsmith doesn’t even begin to account for the damage Iraq has done. Look at the construction: "it premised a major war on a terror-related threat of weapons of mass destruction that turned out to be wrong." Goldsmith doesn’t make it clear whether the war itself or the premise was wrong. Yet by suggesting that one or the other "turned out to be wrong," Goldsmith strips the Administration of all agency with regards to the war. It just happened … and happened to be wrong, with no discussion of the accountability for that moment. By ignoring the question of accountability for the war, Goldsmith ignores abundant evidence for why Bush couldn’t win the trust of people. Once you’ve risked your vanity war’s success by putting Heritage Foundation children in mission critical jobs, you lose the claim to good faith. And when your advisors twice lead you to gamble and lose with the nation’s security, its authoritarian impulses should no longer be judged as good faith badly executed, but a fundamental characteristic that will lead repeatedly to choices that make us less safe.

Mostly, though, I was struck by Goldsmith’s blind faith that he, writing as an expert on the Terror Presidency, is writing with the distance and wisdom to improve our nation’s security. Yes, what he says about the necessity for winning public approval for presidential policies is right on. But he makes a critical mistake in his certainty that the terrorist war is the crisis that will dominate our time. Take a look at Goldsmith’s statement about the importance of responding pre-emptively to threats:

For generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction, that any responsible executive leader aware of the threats … must assume the worst. … National security officials do not have the luxury of hindsight when deciding how to act. But they do understand the potential consequences of not taking threats seriously enough. This is why they obsessively focus on how a genuine threat might look before the fact.

And ask yourself–which is a greater threat to this country right now, climate change or terrorism? Climate change, like terrorism, "has such a firm foundation in possibility, and such a harrowing promise of enormous destruction." Yet no one in this Administration seems to care a whit about the "potential consequences of not taking" the threat of climate change seriously enough. On the contrary, the same guy who dismissed his briefer by insinuating that he was just covering his ass has twisted all the science coming out of his Administration to ensure that the threat of climate change is not discussed seriously.

The point is, Goldsmith takes a very particular approach to the presidency, one rooted in a firm belief that the Administration’s errors will be vindicated as the nature of the terrorist threat becomes clear to all of us ignorant citizens. He never considers what happens to his argument when you assess it against the background of the Administration’s failures to respond to other threats–either the false one of Saddam’s nukes or the real one of climate change (or any number of other threats, including economic crisis). Admittedly, I can’t forsee the future, so it may still transpire that terrorism will cause greater damage to our nation and our globe than terrorism climate change (though I’d say climate change is already wreaking greater havoc). And Goldsmith’s primary lesson still holds: no matter the threat, you need to respond to it by cultivating support for your response. But Goldsmith manages to recuperate the members of the Administration he knows have failed by pitching their mistakes as a good faith response motivated out of the correct assessment of the threats to this country. And that recuperation gives the Administration yet another dodge to avoid looking at the real threats to this country.

Update: Error fixed per MadDog

186 replies
  1. Rayne says:

    Did Goldsmith mention the anthrax ‘attacks’ at all?

    Does he ever have doubts at all that the leaders of this administration are not acting in good faith? A substantive portion of the public from day one can see that they are not dealing fairly and openly with us, from Cheney’s Energy Task Force to the failure to ever produce WMD’s in Iraq, or the hubris of going to a preemptive war without a plan for the peace; does he never question any of that?

    What good is the best marketing plan in the world if the product is crap?

  2. JodiDog says:

    These are hard times, and hard decisions have to be made.

    Of course the Political Party that is Out Of Power will say that the Party in Power is wrong.

    “They are wrong!”
    “They are not reacting hard enough or fast enough!”
    “They are reacting too hard, and too fast!”
    “We don’t like them!”

    There will always be nitpicking, and after a while the American Public just tunes most of it out.

  3. merkwurdiglieber says:

    These movement conservative, elite school credentialed kids are the
    modern equivalent to Halberstam’s Best And Brightest that made such a
    mess in the 60’s… their successors, the Scoop Jackson and LBJ Dems,
    Rostow, Nitze, et al, schooled this generation in the institutionalised
    fear of the National Security Act that hijacked the Constitution. The
    sad fact is Goldsmith and his ilk were there precisely for their ability
    to follow the script of the crisis presidency model, sells well on TV, and
    thanks to layers of american myth, is the longest running soap opera going.
    We have mastered and institutionalised advertising as truth for so long,
    no wonder we are in this mess. They know no shame.

  4. MadDog says:

    Admittedly, I can’t forsee the future, so it may still transpire that terrorism causes greater damage to our nation and our globe than terrorism climate change

    EW, small sentence construction error. Should be the bold and the strikeout?

  5. bmaz says:

    There is just so much wrong with this, subject not author, I don’t know where to start. Well, actually I do; it starts at the start and goes to the end. “… an intelligent and sincere conservative…”. Really? It took this prick how many years to look back in wisdom in light of the most fundamental principles of the most important document, the Bible if you will, of his profession and professorialship, the Constitution? Not that he exactly has it right yet either. Should we not have even more contempt for the ones that are supposedly bright enough to know better?

  6. Minnesotachuck says:

    It seems to me that Naomi klein in The Shock Doctrine is on to something in her assertions that US foreign policy has deliberately taken advantage of black swans to strong-arm other countries and that the political and economic elites in this country are moving the practice on-shore, and that the Bush-Cheney response to 9/11 was/is an example of this in spades. Perhaps Goldsmith was looking the other way and missed the winks and nods.

  7. ralphbon says:

    Terrorism does not pose an existential threat to our nation. Not even nuclear terrorism does. But our response to the threat of terrorism does.

    Pretty directly analogous to tuberculosis. People don’t die from the infection but from the body’s overreaction to the infection.

    This point was made especially forcefully in a brilliant essay by an otherwise incorrigibly flawed writer, as well as a massively flawed documentary by a brilliant broadcast journalist.

    What sickens me most is the unshakable suspicion that Dick Cheney is not lying awake worrying about preventing the next megaterrorist attack but rather about why it’s taking so long to materialize.

  8. bobschacht says:

    One of the things missing from this discussion is the criticism the Bush administration was receiving for failing to “connect the dots,” e.g.

    Connecting the Dots
    Our intelligence community needs pattern-spotters, not career bureaucrats.
    By Herbert E. Meyer (April 08, 2004, 9:54 a.m.)

    Articles from the New Yorker: Connecting the Dots (March 10, 2003)

    So what did the effect of all this heat on the administration for failing to “connect the dots” produce? An excuse for “the Matrix” (Multi-State Anti-Terrorism Information Exchange), which started in Florida(!) right after 9-11. According to an old news report with $12 million in federal funding, it’s being used in 13 states. We know a lot more, in some ways, about this program now, but so much of it is still secret that its reach is unknown.

    The administration used the clamor over connecting the dots to create programs to collect a whole lot more dots– in a secret operation that, well, as long as they were collecting all those dots, could be used in more than one way.

    I tried to google “connecting the dots before 9/11″ and got about 70,000 hits.

    Bob in HI

    • emptywheel says:

      Thanks Bob, yes, that’s part of my point. Until you admit, at the start, that the fear wasn’t so much being wrong once, but being wrong again, when the nation wouldn’t let you get away with it again, then the intensity of the fear doesn’t make sense.

  9. bigbrother says:

    Richard Clarke describes in his book: Bush in the WH after nine eleven ORDERING aids to link the attack to Iraq. Before the 9/11Clarke practically begs Bushco to heed the Al Queda danger before the attack. The Bush family Saudi relationship with many members being spirited out on a plane after 9/11 opens the suspicion that he knew such a mission existed.

    They also knew of many CENTCOM plans in existence for an attack on Iraq in light of the Gulf War, the oil prize and the desire for destabilization of ME by neocons and Israel. The huge government contracts for defense including Carlyle Group is not lost on the Pentagon or the neocon think tanks. Using the smaller force plan Rumsfeld insisted on over the advice of his logistic generals shows he was interested in creating the mayhem that followed as opposed to an orderly occupation by a larger force.

    The status quo was easily predictable as were the benefits to cronies and the ultimate waste of a $2.2 trillion surplus. With Blackwater boots on the ground and the national guard combat ready in the USA any resistance by a marginalized population would be unlikely.

    The “Coup de Grace” is leaving the next administration with the clean up. During this new administration MSM would heap coals of fire on it.

    • readerOfTeaLeaves says:

      The status quo was easily predictable as were the benefits to cronies and the ultimate waste of a $2.2 trillion surplus.

      Hat’s to you for predicting it. I missed the full implications, despite paying a fair amount of attention.

      But I attribute my failures to ignorance about the accounting practices of multinationals, a naivete about the history of the Bush family, a gap in my American history covering the Iran-Contra disaster, and a lack of attentiveness to the implications of global finance and energy resources.

      Meanwhile, the ‘horse race narrative’ that presented GWBush as a good ol’ boy (and Cheney as the authoritative, superbly experienced, heavy-lifting insurance policy for governance) didn’t help much, either. Let’s hope the US press adopts some of your prescience in 2008.

      Heaven knows, the bamboozelment offered up as campaign coverage has been far too costly.

  10. radiofreewill says:

    It’s the Torture Presidency – that’s more in-line with Bush’s Abominably Flawed Character-response to the 911 Attack.

    Bush the Torturer is how he’ll be known to History, imho.

    Everyone that ever threw-in with him will be Tainted with Torture for the rest of their lives – wreckages of breathtaking Greed, Hate and Ignorance strewn along Blind Loyalty Road – unquestioningly following a blowhard claiming that God Almighty told him to invade Iraq.

    Bush the Torturer marks the End of the Republican Party and Evangelical Religious Politics, too – they are about to be Buried in Their Own Shame.

  11. readerOfTeaLeaves says:

    I’m not convinced they can ‘see‘ climate change until — and unless — it looks like Katrina every single week. Per: BobSchnact’s point about ‘connecting dots’, the Bu4hCo cabal simply doesn’t connect critical dots. They can’t; they’re visual thinkers, not conceptual thinkers. They’re marketers, not thinkers.

    If they’d connected the dots, they’d have spotted climate change as an urgent issue in 2000.

    Nevertheless, with respect to Goldsmith’s claims that 9/11 made them behave oddly: there are new neurological studies show how trauma and stress reduce cognitive function. (See ‘The Paranoia Switch‘ by Stout for readable details. Trauma messes with your neurotransmitters, and over time the whacked out** neurotransmitter activity literally restructures neural patterns in the brain.) IMHO, the Bush crowd arrived in DC a brick short of a load, and when the failures of 9/11 highlighted their limitations, they overcompensated with bellicosity and aggression. The solution to the trauma-accelerated craziness would have been to connect more dots and see the Bigger Picture, but that’s evidently beyond their cognitive processing capacities.

    ‘Terror’, ‘terrorism’, ‘torture’, ‘war’, are all visual — these lend themselves to teevee. They’re much more emotive than an illustration of the lowly carbon molecule.

    Honestly, how would posing next to an illustration of protons, neutrons — and electrons revolving in their shells around the core of a carbon atom — make Dubya look more ‘manly’? How can an image of a carbon atom allow Dubya to do his Flyboy Act just before a lovely sunset on an aircraft carrier deck? In a teevee age, the lowly carbon atom, or even a C02 molecule simply doesn’t appear to be a very threatening thing. It lacks the emotional heft of the image of a missile or a terrorist. As an image of threatening danger, the lowly carbon atom simply doesn’t stand a chance against scowling, menacing-looking turbaned, dark-skinned people.

    I mean, where’s the “Mission Accomplished” in terms of climate change? Until it allows Dubya to don a codpiece, I doubt we’ll hear about it UNLESS it can be used to denigrate scientists, researchers, or DFH types.

    None of this is to argue with EW’s conclusions about Goldsmith, nor to excuse him. If life were a SAT test, Scooter Libby, the neocons, and Goldsmith might be doing well. Unfortunately, SAT scores don’t necessarily predict success in life, in which multiethnic, multicultural, technically confusing, linguistically challenging situations arise hourly. For those kinds of problems, dot connecting and building relationships is essential.

    But how do you build relatiionships when you are reviled as a torturer, world-class polluter, and resource grabber? Evidently, another question Goldsmith fails to ask…?

    **Using ‘whacked out’ in a strictly scientific, well-documented sense. Not! 8-

    • PJEvans says:

      I don’t think they even qualify as ‘visual thinkers’ – that’s what I am, and I’ve been seeing peak oil since the late 90s and, more recently, climate change.

      I’m not even sure they can think at all: mostly what they do is react (and that badly).

  12. JohnLopresti says:

    The transition I find parallel is the Arab transit of northern Africa, among other routes and byways, bringing lost Greek history to quibbling agrarian Europe, fueling early renaissance. I think some gut response in rigorously principled people, with maculae in their visual perceptions, responding from US neoCon echelons metaphorically congruent to the kind of bickered reception that ancient rebirth of learning and democracy based governance received in very old Europe. It is interesting to see the bond of modern day pantheons summoned to excuse the weakest inclinations in mercantilist nation constructs, but Goldsmith would wonder whence the word salad emanated and how he is its shuttered window of light. I am looking for his memo with the quilted footnote about the tortcha program ongoing and relegalized, maybe later in the pdf folder.

    • readerOfTeaLeaves says:

      Ah, yes. The Arabs also brought Europe the concept of ‘zero’, and (via Al Qwariz’me) the algorithm. For which we can all be thankful.

  13. Jeff says:

    1. I don’t think you’re quite giving due to Goldsmith’s argument. It’s true that one of the major lessons he wants to draw – what gives the book it’s title – is that, in the face of the threat from Al Qaeda/jihadi terrorists intent on attacking the US, with weapons of mass destruction if they can get their hands on them, including nuclear weapons, every administration is going to be obsessed with stopping the next attack and will commit errors in its effort to do so, and that means that the risk to the rule of law, civil liberties and constitutional values is as open-ended and perpetual as the threat itself. And that is the case even with an administration acting with all the good faith in the world. But that seems entirely right to me. It’s also true that Goldsmith thinks Team Cheney was acting in good faith to protect the country. However – and this is the part of Goldsmith’s argument you seem to leave out – Goldsmith also thinks that Team Cheney (and Addington above all, of course) had absolutely terrible and crazy judgment, and that made things worse in all sorts of ways, aggravating the inevitable difficulty in conducting the campaign against Al Qaeda into a disaster for the rule of law. And Goldsmith appears to trace this terrible judgment in no small part to roughly what you call authoritarian impulses, which he captures with the notion of the theological commitment by Team Cheney to the expansion of executive power as an end in itself, and the (authoritarian?) interpretation of power in our constitutional system as the absence of obstacle, and therefore as a sort of zero sum game where, basically by definition, any constraint or check on the executive was a lamentable decrease in power.

    After all, don’t forget the subtitle of the book too – Law and Judgment inside the Bush administration (or something like that).

    2. I agree climate change is a major threat, and indeed part of the threat from the confluence of jihadi terrorists (or whatever we’d like to call them) aiming to attack the U.S. and super-destructive weapons is the threat that we will get distracted or exhausted and unable to respond to other threats, such as, prominently, catastrophic climate change. Nevertheless, surely you can see the difference between a spectacular attack on the U.S. by other human beings potentially using weapons of mass destruction, and even climate change. The difference is not one of existential threat – or rather, if there is such a difference, it is clearly on the side of climate change. But I think it is hard to dispute that any administration of either party is going to be obsessed about stopping the next attack. As Goldsmith suggest – and I completely agree – if anything, the Dems in office are going to be even more obsessed. The reason, though Goldsmith is too polite to mention it, is that you simply know that the country, and particularly the opposition party, is not going to cut a Dem president as much slack in the event of an attack as a Republican would be – and was – cut. Climate change is a very real threat. So is the threat of massive devastating attack by terrorists. The fact that the Bush administration has systematically dropped the ball and worse on the former does not mean that the latter is not going to have a distinctive place in any future administration, REpublican or Democrat.

    3. Goldsmith’s book is really the most thought-provoking, extraordinary political book I’ve read in a long long time.

    • readerOfTeaLeaves says:

      Thanks for this perspective. IIRC, you’ve delved through a vast number of Plame docs, so seeing your comment is quite interesting.

      Possibly relevant: threats that are impersonal and random are processed differently than threats that seem to be aimed specifically at us’. Neurological studies show that an experience like being stalked, or a person being attacked specifically by a determined attacker (as in the federal judge’s family murdered by a man angry about the outcome of his legal case) are far more traumatic than amorphous threats like car accidents and illness. That neurological/psychological information synchs with your interpretation of Goldsmith’s conclusions.

      Sounds as if, in his own way, Goldsmith connects significant dots; perhaps writing the book helped himi think it all through.

      Freepatriot — yeah, DOJ probably made the right call. Sad.

    • drational says:

      Having read the book, I agree with your points, and have to respectfully disagree with Marcy (and Mary) about the importance of Goldsmith’s failures and faults.
      I concur that Goldsmith’s overarching theme is that becoming a “Terror Presidency”, regardless of intentions, threatens the Constitution and our Democracy.

      Goldsmith clearly suggests good intentions and may indeed believe this. With respect to Addington, I strongly doubt he believes this. Remember that his book spent 13 weeks in pre-clearance review (wonder who got an advance copy) for classified information. Similar to Jeff, I think a reader must not become fixated upon the surface appearance of “blind faith”, nor fault him for what (in retrospect and without any detailed knowledge of the actual events) a reader believes he should have done. In an Administration filled with “true believers”, Goldsmith was an oddity. One must look at what he did in his actions- eviscerate the “Law and Judgement Inside the Bush Administration”.

      But I deplored the way the White House went about fixing the problem. “We’re one bomb away from getting rid of that obnoxious FISA court,” Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004. The Vice President’s Counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the Vice President had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials dealt with FISA the way they dealt with other laws they didn’t like: 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.

      To me, this passage and Goldsmith’s actions in his 7 months in the Administration reveals his thesis: No matter how favorably he projects the Administration’s intentions, and no matter how much knee trembling he reveals regarding the “what if I was incorrect” fears, he in the end spoke with his deeds and feet- The shit they were pulling was wrong.

      In 7 months as OLC head, he (at a minimum) rescinded the Bush Admnistration Legal Justification for Torture/Interrogation- he pulled the Bybee memo, jeopardizing thousands of CIA operatives and others who relied upon them. He also was instrumental in thwarting the Warrantless Wiretapping program in a way that almost resulted in the acute resignation of most of top brass of the DOJ and the FBI director, which then set in motion the collapse of the FISA court evasion scheme. If you listen to Mike McConnell about how the FISA-related delays kill Americans, one predisposed to Addington-think might extrapolate to conclude Goldsmith was worse than Bin Laden.

      So whether he thought they had good intentions or “might be right” in hindsight, he FUCKED them up, and did so by embracing (at least as we can see on the surface) the rule of law and our Constitution.

      My belief is that there was such severe compartmentalization of information that had there been no Goldsmith, there would never have been disclosure of ANY of the mess. No Hospital Visit, no Risen and Lichtblau NSA bombshell; certainly no FISA or Amnesty debate as they would have continued to evade the FISA court.
      No withdrawal of Bybee memo, no Priest article on Black sites and no Torture Tapes.

      He could have been more of a “patriot” in the flavor of Daniel Ellsberg. He could have copied documents and given a press conference on the pure rot in our Government. He did not overtly call a “spade a spade” or say “wicked is wicked”. But the disgust and agita over these “failures” are wasted breath and misdirected anger.
      Goldsmith may be an intellectual coward or intellectually corrupt or blind- but he is not a Bushie, and the steps he took no matter how “small” they may seem, were no doubt catastrophic blows to the men who never heard “no”.
      His words may lead one to believe he is interested in “recuperating” the reputations of the men he thwarted, but with respect to torture and wiretapping, he played an instrumental role in collapsing the fortress of secrecy. The enemy of my enemy may not be a friend, but he certainly gave us more tools than we would have ever had were it not for his actions. To me this is most important legacy of Jack Goldsmith.

      • BayStateLibrul says:

        Very good points.
        A few weeks back, what Loosehead said about Fitzy and Comey gave me pause (they have done all within their power to out the Prez and VEEP, now it is up to us.)
        After reflection, is it up to us? Surely, but we need a person, a genuine whistleblower with the goods to impeach the Prez and to give us back our
        Lying, deception, and playing around with the legalities of EO’s, signing documents, and boldly commuting the sentence of Libby, thereby making a mockery of our justice system. It has caused more anger, more frustration and more assaults on democracy. If he gets away with it, what next?

        Can we exhume Daniel Ellsberg or Eliot Richardson…

        All I’m saying is from seven years of watching this hijacking of our country, that my hope is on life support, and I would like a fucking miracle.

        End of rant.

      • emptywheel says:


        I think you miss my point entirely. I’m talking about his book, not his actions. I agree that his actions have been important (though I wouldn’t go so far as you and say none of these things would have happened without him). But I disagree, strongly, with these two statements:

        I concur that Goldsmith’s overarching theme is that becoming a “Terror Presidency”, regardless of intentions, threatens the Constitution and our Democracy.


        he in the end spoke with his deeds and feet- The shit they were pulling was wrong.

        Goldsmith is arguing, clearly, that this and the following Presidents for the next several generations will and should be terror presidencies. And he is definitely NOT arguing that the “shit they were pulling was wrong.” On the contrary, he is arguing that the means they were using to pull that shit was wrong, but the shit itself may be right.

        Goldsmith says on several occasions that he was willing to push executive power to great lengths. He said he had no problem finding a way to have them do their intensive interrogations legally (though he does say that he never did the analysis to determine that the CIA techniques were legal).

        Yes, Goldsmith made important stands for the Constitution and rule of law–I agree absolutely. Yes, he makes an important case for transparency of action and consensus. But in this book (which is what I’m talking about) he’s making that argument in favor of a strong president who would do certain things that America should not be doing, things which are counter-productive to our overall security, not to mention our fight against terrorism. This post is about how much Goldsmith can reassess his own beliefs. And on certain critical issues, he is unable to.

    • emptywheel says:

      I disagree with you. Yes, the point of Goldsmith’s book is precisely what you say and yes he does believe Addington and Cheney fucked up royally. But Goldsmith’s frame–his belief that the next several generations of Presidents will be terror presidents–is still utterly wrong and just as dangerously wrong as Addington’s stubbornness.

      And while I agree that any of the likely Presidents will be as concerned about the next strike, I think several of them will understand that the strike is as likely to come from someone else over resources as it will over terror (in fact, Cheney’s obsession wiht Iraq and Iran comes from the same honest recognition, but the validation of this unifocal terror frame from people like Goldsmith has empowered Cheney to use terror tactics for resource wars). Further, I think if Gore had been President, he would have done precisely what Goldsmith recommends–educate the public–but to respond to climate change. I’d like to think, too, that any Democratic Presidents in question wouldn’t be operating with “unremitting fear;” for all his faults, Clinton wasn’t, and I believe he saw the threat for what it was.

      In other words, you seem to be taking GOldsmith’s frame seriously, the claim that no one could have prevented 9/11. Had Clinton still been in office, we might have had a 40/60 chance. And had Clinton been in office after 9/11, the response would have been entirely different. Goldsmith still wants to justify the tactics BushCo has used, but the experience of Europe tells us that the tactics, too, are counter-productive. And until someone treats terrorism from a more wholistic approach (getting us out of bed with the Saudis first and foremost, and freeing us of our addiction to oil), we will be spinning our wheels. And by empowering Bush to use these tactics–and still doing so, with his call for immunity for telecoms–is really hurting, not helping, any fight against terrorists.

      • Jeff says:

        I think you’re being imprecise in equating taking Goldsmith’s frame seriously – which I do, to the point of simply buying it – with the claim that no one could have prevented 9/11 (though i do have to say that if you think a 40/60 baseline of stopping an attack does not fit with the notion of the Terror Presidency, I think that’s just flatly wrong). I certainly think that the contemporary Democratic party is much more serious about national security than the Bush administration and than the Republican party. But given the nature of the threat, I think it is a huge error to imagine that a Democratic administration will have the confidence to not be obsessed with and unconfident of stopping the next attack.

        It is also very important not to identify the Terror Presidency with the Bush administration’s choices in how to pursue it, that is, with their tactics. I take it Goldsmith’s notion of the Terror Presidency – which is meant to be an alternative to the too-easy revival of the notion of the imperial presidency – is meant to identify an enduring problematic and challenge, not a particular response to that challenge from the likes of the Bush administration. Indeed, I take it Goldsmith’s point is that the Bush administration’s response (in short, the revival of the imperial presidency in new form) is just one, and not the right, response.

        Finally, to the degree that Goldsmith advocates a variety of – from my perspective problematic – tactics, such as a special terror court modeled on FISA or whatever, it’s not an accident that they hardly play any role in his book, which has a different purpose. Debates and disagreements over those sorts of tactics are internal, in my view, to the reasonable framework Goldsmith stakes out in the book.

        The Bush era is almost over, and it is of the utmost importance, in my view, to detach the genuine assessment of a very real threat – just remember the last NIE on terrorism’s warning about the rebuilt capabilities Al Qaeda, itself a product in part of the failures of the Bush administration’s approach – from the political manipulation of and good-faith but disastrously wrong approach to that threat by the Bush administration. I think you see in the left blogosphere a tendency to discount the threat because of how manipulatively the Bush administration has used it.

        • emptywheel says:


          I think you’re dismissing how seriously the left takes the threat.

          But that doesn’t mean making ANY presidency a “terror” or any one threat presidency. Goldsmith talks about it as one dominant fear. And I don’t think it is that in the Bush Administration (the Iraq War would have happened with or without BushCo finally realizing terror was real) nor should it be. But most importantly, no one–Goldsmith or anyone else–should consider any presidency a “terror” presidency.

          President Clinton fought Al Qaeda much more effectively than Bush, without becoming a “terror president” and without fostering this obsessiveness that turns into permissiveness. There’s nothing about 9/11 that means we can’t go back to the Clintonian model of fighting terrorism. And if we DON’T, then we will be less able to fight the other threats out there and we’ll forego a strategy that has proven to be much more successful than the this “terror” monofocus. The notion of a terror presidency implies a certain approach to dealing with terror that has proven historically to be the worst way of responding.

          And even if you buy the argument that Goldsmith is presenting a badly-named “terror presidency” as an alternative to an “imperial presidency” doesn’t mean we have a binary of choices, an overly strong and secretive presidency versus an overly strong and transparent presidency. We have another choice, which is the Constitutional Presidency, or the balance of power presidency. I’m sorry, but even in the age of terror, I prefer doing the work to make Congress functional again such that the latter is once again viable.

          • Jeff says:

            I take it Goldsmith and the notion of the Terror Presidency identify a novel, enduring and dominating dimension of contemporary government, not an exclusive focus. I mentioned in my initial comment the risk of failing to pay attention to other threats, such as global warming – a point, by the way, nicely made in another extraordinary book in this area, James E. Baker’s In the Common Defense. (That’s neither James Baker the bad guy from Syriana nor James A. Baker who was part of the Bush administration and whom Goldsmith mentions.)

            What is the Clintonian model, exactly? And I have to say, if that model gave a 40/60 chance of stopping 9/11, as you suggest, that suggests to me something about it needs to be changed.

            I’m with you on Congress, but that seems hardly at odds with Goldsmith’s notion of the Terror Presidency and his own preferences in how to fill it out. I will also add that while I love me some legislature, I think it is undeniable that when it comes to national security in general, and in times of crisis in particular, the balance of power weighs toward the executive, for the old-fashioned reasons articulated in the Federalist Papers.

            • emptywheel says:

              Clintonian model is one of law enforcement, and attempts to disrupt the network form the top. He had a 40/60 odds, I think, of preventing the attack (and probably higher odds of cutting it in size). What was needed on top of that approach was 1) cooperation among FBI/CIA and others (still hasn’t happened under Bush’s monofocus 2) better security in all logical places (has happened only for show in airports, but not at public venues like sporting events and not in shipping containers), 3) cooperation from Saudis and Pakistanis and other significant countries (has happened with some countries, but clearly not with others, like Syria, who’d love to help), 4) soft power investment in countries where terrorism flourishes (has not happened under Bush, not even in Pakistan), 5) a focus on terroism (has happened, perhaps too much), 6) a willingness to force businesses to make certain security adjustments, even if it means lower profits. That’s off teh top of my head, I’m sure there are more. But these things won’t come (and for the most part haven’t) in an administration trying to prevent a repeat of the last colossal failure, which is what this monofocus on terrorism in the Bush Administration amounts to.

              And when I say Clinton had a 40/60 chance of stopping the next attack, I would put Bush’s ability, NOW, at about that too (to say nothing of setting off an attack from Hezbollah), precisely because of his ability to get distracted by things and an inability to look creatively at threats. Do we really need FBI agents setting up stings against the Miami Seven instead of setting up a computer system that allows all law enforcement to share information? I think not. It took Democrats getting a majority before we even began to deal with shipping containers; we still haven’t dealt with dangerous chemical plants. Those are all no brainer things, but instead BushCO has focused on preventing precisely another 9/11.

              • Jeff says:

                The trouble with law enforcement model is: 1)Are the attempts to disrupt the network from the top part of the law enforcement model or outside it? if part of it, what law are we enforcing? If outside it, then you’ve conceded we’re in a state of armed conflict with Al Qaeda; 2)the Clinton administration was at least in part engaged in an armed conflict (a.k.a. war) with Al Qaeda, only it didn’t educate the public about or even inform it about that fact; 3)the fact is we’re in an armed conflict with Al Qaeda and it is probably impossible to unwind that even if we wanted to; 4)we are in a state of war with Al Qaeda. This is not the War on Terror, which is a problematic formulation not so much because you can’t make war on a tactic but because it is too vague and elastic, as we know, and because it encourages the idea that there is a state of armed conflict with terrorists per se, and that the campaign against Al Qaeda and against jihadi terrorists more generally is exclusively or even primarily an armed conflict, which it is not. But that said, we are in a state of armed confict with Al Qaeda. The trouble is that the existing laws of armed conflict don’t fit in all kinds of ways – and probably need to be remade, not manipulated, evaded and loopholed in an adhoc way, as the Bush adminsitrtaion has done – and the campaign against AQ is, all things considered, neither simply war nor simply law enforcement etc. I would say all the things you point to are important parts, though not the only parts, of the campaign.

                I entirely agree that the Bush administration’s focus has been distorted and messed up. But again, I think there is simply no question that the next Democratic administration will also and will also have to be obsessively focused on preventing the next attack. With luck, they will see no reason why they cannot be focused like that and also be focused on all those other things, as integral parts of longer-term success.

                At some level, I feel like you’re just not facing the simple fact that a Democratic president is going to feel more pressure not to preside over the next, possibly massive attack. All the things you’re pointing to are essential elements, hopefully, in what the next administration will do. But just do the thought experiment, first, of presiding over the next attack; and, next, of the real difficulty of finding out about it, preventing it and so on; and, next, of experiencing the threat reporting that comes in all the time. I just think there is no way that the next Dem president isn’t going to be enormously aggressive in attempting to forestall that set of realities. He or she can work to shape public opinion in all sorts of ways different from what the Bush administration has done. But those realities will remain – and in fact, it is going to take some work to communicate to the public that the threat remains very real, despite the manipulation of that threat for partisan purposes by the Bush administration.

                • merkwurdiglieber says:

                  A very different foreign policy in the middle east,e.g. Palestine, would
                  change the dynamic pushing the military responses. The chance of this
                  actually happening are slim to none, but I would rather try that than loose
                  the Constitution.

                • MadDog says:

                  Will the Democrats be “obsessed” with preventing the next terrorist attack similarly to the way the Repugs have been?

                  Obsession? No. Focus, yes. I think that much depends on the sanity of the viewer. I see the difference in views to be that of the reality-based party (Democrats) and the fantasy-based party (Repugs).

                  I do not credit the present leadership and much of the membership of the Repug party as fitting any reasonable defintion of the sanity model.

                  Crazy folks who are obsessed with something are a whole ‘nother can of worms than sane folks who focus on something.

                • bmaz says:

                  I think there is simply no question that the next Democratic administration will also and will also have to be obsessively focused on preventing the next attack.

                  I would suggest that the election of the Democratic Administration you so describe should be fought with all speed and vigor. It is time for this country to stop living in, and operating on, an abject state of fear and myopic self interest.

                  Eureka! As I fumble with my thoughts, EW antes up @ 58 with the real deal. Exactly.

      • Jeff says:

        An intriguing side note that enables me to make one substantive, somewhat mischievous, point.

        One of the surprising things that emerges from Goldsmith’s book, persuasively in my view, is that for all its public political manipulation of the terror threat, the Bush administration is actually a lot more obsessed with that threat and stopping the next attack internally, behind closed doors. (Goldsmith in fact makes a point in this regard that I think dovetails with your preference for the more wholistic approach, which is that Addington et al approached that threat with such a sense of urgency that it led to a mistaken, relentlessly short-term perspective. It is perfectly possible to be obsessed with stopping the next attack while taking a more strategic, longer-term, calmer, smarter perspective.) Goldsmith frames this to a considerable extent via the threat matrix, which is what the Intel Community and others presents to the administration cataloguing all the threats known on a given day. The somewhat mischievous substantive point is that Goldsmith calls on everybody’s hero James Comey to help make his point:

        Former Deputy Attorney General Jim Comey, the most levelheaded person I knew in government, says that reading about plans for chemical and biological and nuclear attacks over days and weeks and years causes you to “imagine a threat so severe that is becomes an obsession. (p. 72)

        Now, Tenet’s got a whole chapter entitled “Threat Matrix” and goes into some detail on the matter, and one of the things he notes is that as time passed, they figured out a way to present the information that was smarter and seemed to somewhat sort it better in terms of real threats and noisy but unreal threats – though I hardly think the obsession Comey refers to did or will recede because of that.

        The intriguing side note is that I believe the threat matrix came up a few times at the Libby trial, as it was, not surprisingly, something the defense wanted to make a significant part of its preoccupation defense. Fitzgerald’s counterargument, interestingly, was in part that when you’re in Libby’s position, you get sort of used to the waves of incoming threat information and so it’s not like you get distracted every day such that you can’t remember anything else, such as blowing the cover of an undercover CIA official.

        The reason I only believe this is that there is no mention of the term, and I think that’s because at that point it was still classified, at least as far as anybody knew. Tenet’s prominent use of the term is, I suspect, one of many examples where he got information declassified on his way out the door or thereafter for maximal use in his book. (Goldsmith also cites a Newark Star-Ledger article on the term or some such, which is a classic instance of something authors apparently do, which is turn to public, if often relatively obscure, sources for otherwise unavailable and unusable information.)

        • skdadl says:

          Former Deputy Attorney General Jim Comey, the most levelheaded person I knew in government, says that reading about plans for chemical and biological and nuclear attacks over days and weeks and years causes you to “imagine a threat so severe that it becomes an obsession. (p. 72)

          I would like to think that there are still members of American elites who can read a line like that and suddenly put themselves in other people’s shoes and skins — who can recognize what they are saying. It seems to be possible for someone like Goldsmith to continue, eg, to report Addington’s brutal statements in a kind of clubby-tolerant way, but have he or people like him ever imagined the stark fear that their clubby-tolerant smugness inspires in people everywhere else? It works in exactly the same way as the “imagining” Comey describes there, which I take to be a kind of superstition.

          People who believe in democracy simply have to refuse fear and superstition that reach that level. There must be voices in the U.S. that will argue that?

  14. freepatriot says:

    sounds like the justice department had a total loss of faith in presnit numbnutz

    “We were sure there would be bodies in the streets” on September 11, 2002, a high-level Justice Department official later told me.

    why were they sure that there would be bodies in the streets on the anniversary of the first attack ???

    george bush was asleep at the switch the first time, and it sounds like the justice department expected george to fuck up the second attack too

    anybody else think the Justice Department was right ???

  15. Mary says:

    I think you are too kind, EW.

    While Goldsmith is waiting until page 209 to get around to Iraq, he’s also burying the rampant opportunism of using 9/11 and torture powers to get al-Libi “tortured to order” to say what Cheney wanted said.

    I’m guessing, without having read, that there isn’t much, either, about the kidnap torture of el-Masri, or of Arar, and no apologies for the ruthless and relentless torture they endured because Jack Goldsmith didn’t want to rock the boat too hard by saying that torture solicited and covered up under the Bybee opinions (and the gaps) was obscene criminal behaviour

    I’m guessing he doesn’t dwell on Alberto Mora and Goldsmith’s “help” for Haynes in the “harsh interrogation” techniques. I’m guessing he doesn’t mention the “out of the gate” lesson they all should have learned with the Evansville (my town) roundups and the Higazy coerced confession.

    I’m guessing he doesn’t mention what in essence became a slave trade with GITMO as the plantation, where people were bought and sold in Pakistan and environs and shippped off for abuse. I’m guessing he doesn’t mention KSM’s children. I’m guessing he doesn’t mention the US troop practices under Haynes leadership of kidnapping civilian women in Iraq and holding them until their “insurgent” (or not) husbands turned themselves over, and the absolutely known ramifications to those women of being taken into US custody.

    I’m guessing he doesn’t deal with the imperialistic overlays that have been present in the neocon approach since at least the Nixon days and the Addington belief that the President can supplant both Congress and the Courts in writing law by Executive Order, interpreting law and treaty to his personal liking without any basis in fact or reality, engaging in depravity and criminal acts, and walking away from it all scott free and with his pals that much richer, all by virtue of owning the DOJ.

    There was nothing unique and that had not been faced by the law over and over after 9/11, and by 2003, 2004, 2005, the depravity that began under the premise of “ticking time bomb necessity” was continuing as an ongoing criminal enterprise, existing solely to cover up crime and allow for the most disgusting and perverted of personalities and persons to continue in their torture and abuse paths, salivating for it, inured to it, and completely without regard to the human and moral costs of their depravity.

    It’s not just that Goldsmith doesn’t “get” the issues of, for example, the contrasts between climate change threats and Bin Laden threats. It’s that he doesn’t even understand how it is people like him and his policies and his support for Bush and his policies that helps to create and solidify the threats on which he does focus.

    Why wouldn’t looking at what happened to el-Masri in US hands and in US courts convince Muslims that the US has no Justice for Muslims and that it engages arbitrarily and on capricious whim in the abuse of, and even pyschological and physiological human experimentation on, stray Muslims? And that’s the kind of policy that Goldsmith does embrace – I’ve seen from his writings that weren’t available only for sale.

    With the access to all the information that Goldsmith had, he has never yet come out and advocated for any of what are, by now, “his” abuse victims just as much as they are anyone else’s at DOJ. He has made a pathetically whiney and drivelling reference to maybe having better status tribuanls at GITMO, while at the same time advocating for no consequences for the war crimes committed against those who should have been released, years and years of abuse earlier, if such trials had been granted. He and his pal Haynes went out of their way to make life desparately difficult for JAG officers, and Goldsmith even went to bat for Haynes to be put on the 4th Circuit after it became clear that Haynes had no scruples at misrepresenting to the Judiciary Committees the JAG input into the Haynes military abuse memos. Goldsmith, Philbin, Thompson and Comey spat on every honorable JAG officer and on even minimal concepts of integrity and candor to Congress by rallying around Haynes and obscenely touting him because he didn’t like torture as much as some others might.

    You are way way way too kind. I hope when Goldmsith looks at his children, he sees Arar’s children looking back; KSM’s kidnapped 6 yo; the end result of al-Libi’s torture in the eyes of an Iraqi child with limbs blown off; the starved, bewildered and terrified eyes of Iraqi refugee and orphaned children; the very very dead eyes of so many in Iraq who felt, not the consequences of American fear, but the consequences of American excuses to exercise power.

    It wasn’t fear of Hussein that had Rumsfeld using 9/11 immediately as a springboard to attack Iraq. It wasn’t terrorist fear, but as Alan Greenspan has acknowledged, rampant opportunism in search of payoffs, that caused Bush and his DOJ to so quickly use the dead, the lifeless children, from our own 9/11 tragedy to launch a killing spree in Iraq to obtain assets and power.

    Goldsmith is not being “smart” and is being dishonest in every pore of his being if he doesn’t dig in and address the long standing imperial presidency issues at the core of Cheney and Addington and Bush and Rumsfeld, etc. He knows the difference between fear and opportunism; desparation and depravity. He’s just being dishonest about what was at issue.

    • emptywheel says:

      Agree with everything you say, Mary–I was making a much simpler argument (that Goldsmith is blind to big things), but yours are as much on point.

      But I do still believe Goldsmith is an honest conservative. Human cognition rarely allows any of us to see without blinders–we’ve all got our own understanding of the world and therefore our misunderstanding of what we see. Goldsmith’s come, I think, from his belief in a “terror presidency,” which blinds him to both the things you’re talking about and I am. That doesn’t mean he isn’t honestly communicating his beliefs; I think he is. I was just trying to point to the blind spots in those honestly held beliefs.

    • jakebob says:

      I just wish somebody in the position to CUT THE WIRES would recognize the White House Gang for the ticking time bomb that it is, and do the right thing.

      OTOH, after this morning’s “signing statement that isn’t quite”, Mr Bush’s veiled threat to line-item veto the earmarks in the new spending bill via the slow walk…..
      Maybe we just have to wait and let our Poker-Player-in-Chief keep upping the stakes until HIS party’s had enough. The suspense beats the crap out of anything “24″ could dream up!

      tick – tick – tick…. Happy New Year Firepups!

  16. Mary says:

    It’s not that Cheney and Addington had terrible judgement – for what they wanted to accomplish, their judgment was always on target. What they wanted to accomplish, war with Iraq, imperial powers in the presidency, use of war to allow unchecked power not only for the Presidency but in support of a particular politica party – those were what they wanted and accomplished. And they did it pretty well. No one is even today seriously talking about bringing Bush to justice for all the death and destruction that are all directly attributable to him.

    Instead of poor judgment, Cheney and Addingon are resurrecting this argument, made by the Government in Ex parte Milligan:

    After war is originated, whether by declaration, invasion, or insurrection, the whole power of conducting it, as to manner, and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. 5

    During the war his powers must be without limit…

    The defense in that case put forth the heart of what was being framed, then and now and Goldsmith is smart enough to know and recognize this:

    The Attorney-General conceives that all persons whom he and his associates choose to denounce for giving aid to the Rebellion, are to be treated as being themselves a part of the Rebellion,-they are public enemies, and therefore they may be punished without being found guilty by a competent court or a jury. This convenient rule would outlaw every citizen the moment he is charged with a political offence.

    Things haven’t really changed all that much and, whether we are talking about al-Qaeda now, or the bloodiest war this country had ever faced then (one touted, as now, as being a war unlike any other) the arguments at heart are the same. Now, as then, the facile arguments claimed that they lacked precedent, not by being immoral in their origination, but because, well, you know, it’s a different kind of war than has ever been fought before:

    As respects precedents. I admit that there is a dearth of precedents bearing on the exact point raised here. Why is this? It is because the facts are unprecedented; because the war out of which they grew is unprecedented also; because the clemency that did not at once strike down armed traitors, who in peaceful communities were seeking to overturn all authority, is equally unprecedented; because the necessity which called forth this exertion of the reserved powers of the government is unprecedented, as well as all the rest.

    The court, during a time when there was a respect for the rule of law, had no trouble with the seductive, but evil, arguments against protecting civil liberties.

    By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers. or the clamor of an excited people.

    These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.

    Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

    All quotes from Ex parte Milligan, which includes argument for the government and for Milligan along with the decision of the court.…..38;invol=2

    The thing is, these are not new and unique issues and arguments. And the history of men and power is not that of lovely intentions and terrible judgment, but quite to the contrary, a love of power and power as unabated and unchecked as possible. None of the founding fathers, or those in the states which demanded the Bill of Rights, would simper around tsking over the bad judgment of men who were destroying civil liberties, but with “good intentions.” They’d call a spade a spade. Wicked is wicked. Pernicious consequences are pernicious consequences. And despotism is despotism.

    • emptywheel says:

      Though where Goldsmith is right is where he says that, in fact, Addington’s judgment is faulty, because it has made the presidency less strong. That’s where I agree with Jeff–that the book is useful for that point.

  17. nomolos says:

    Thanks EW. I had to read the title three times before I got it right. I thought it was The Terrifying Presidency at first.

    9/11 did not have to happen It was allowed to happen as per the grand neocon coup design.

    The Iraq “war” was all about control of oil.

    Fear is the only thing this administration has to offer.

    Goldsmith is just one of a spate of right wing NF authors that spew rhetoric to try and excuse the shredding of the Constitution by the cheney/bush administration.

    The trolls are at the feeding trough.

  18. BayStateLibrul says:

    I know this may be an oversimplification…

    “We have nothing to fear but fear itself”

    The character in the White House was not up to the challenge.
    Plain and simple. We had the wrong person at the wrong time.
    Bush damaged the Office of the Presidency.
    “When we look back someday at the catastrophe that was the Bush Administration, we will think of many things”, Joseph Stiglitz says.
    “the tragedy of the Iraq War, the shame of Guantanamo and Abu Ghraib, the
    erosion of civil liberties.”

    Damage, Damage, Damage.
    I hope we can repair it, but based on the last seven years, it may be
    a remote, flickering, light….

    Thanks for your analysis of Goldman, it sheds light on the reasons and
    causes, can we learn the lessons?

  19. der1 says:

    Game on
    Unprecedented simulcast on tap for Patriots’ historic bid
    Email|Print| Text size – + By Mike Reiss
    Globe Staff / December 27, 2007

    Yes Virginia there is a Santa Clause

  20. Boston1775 says:

    EW et al,
    Thank you for the discussion of Goldsmith’s The Terror Presidency. As I haven’t read it yet, I can only read and ponder what each of you is saying.

    The value of this type of discussion is so great that I don’t even want to interrupt it by my comment, but I have to. I am learning so much by your honest disagreements and points of agreement that I have to thank you, cheer you on and ask for more.

    I will be reading this book, informed by all of you. I am in your debt.

  21. radiofreewill says:

    Jeff at 17 All that you say, I find mitigating in Goldsmith’s favor – but only at the time that it was happening.

    In the halcyon, but psychologically traumatic, days of Bush the UE making Law by Mouth, all of Our fears about losing Our Constitutional protections were ‘projected’ on a tar-baby of Bush’s invention – unseen, unchecked and unbalanced Global Terrorism.

    I can exercise some compassion for Goldsmith’s Less than Perfect attempt to bring Lawful Order to a hurricane of Runaway Fear inside Bush’s Kingdom – led by the Most Afraid One of All, Bush. I can see that Goldsmith was clearly a ‘good guy’ at a time when dissent was harshly put-down as Disloyal and severely punished.

    However, time has now passed, and the ’specter’ of Global Terror that Bush way over-drove to Justify his Unlimited Power has been better illuminated as More Like a Hornet’s Nest that Bush really believed he had stepped in.

    In his Fear-drenched Running from the Hurt, Bush created a Secret Program of Systematic Torture.

    Goldsmith knew this when he wrote his book, in which he chose to present an Apologie for Bush’s (inhuman) Torture, in the blinding glare of Bush’s (trumped-up) Terror – without assessing the Role of Bush’s Sadistically Flawed Character as being the ‘driving’ force behind Both.

    So, as time goes by, Goldsmith looks less like a ‘good guy’ and more like Ma Barker hiding her murderous, bank robbing, lawless, ne’er do well children behind her skirts and saying, with conviction, that “the boys thought they were going to be fired on again, so they shot first. You can’t blame them.”

    He never ‘cuts to the chase’ of his arguments, despite the Terror Shadow receding and the Torture Reality rising.

    Right guy then, but Not Strong Enough for what We need now – to directly confront the Tyrant for his Mentally-Twisted Creation of an Over-blown Terror, in which he hid Cruel and Inhuman Torture.

    Joe Wilson is much stronger than Jack Goldsmith, imho.

  22. emptywheel says:


    Fair point, and I had the same thought–I was thinking of Libby and his purported obsession with terror. And, also, his reported excitement about meeting with Tom Cruise on Germany’s treatment of Scientologists. I do believe Fitz introduced that detail to show that, obsessed as this Administration is (and of course, Fitz is a guy who spent years investigating the African Embassy bombings, so not entirely immune from a kind of monofocus on terror), they’re still liable to get excited by completely unrelated issues: Cruise or Wilson.

    And I did note Goldsmith’s read on Addington’s short term perspective. But IMO, that’s a judgment coming from someone who himself can’t see beyond the medium term, which is kind of my point.

  23. bmaz says:

    I honestly mean no disrespect to anyone here; I respect, admire and treasure the relative opinion of one and all. The ability to intelligently dissect, argue and discuss complex and critical issues is what makes this site remarkable. I, however, am having an extremely hard time setting aside the complete disgust I have for Goldsmith; not just for what he did then, but also for his self serving and aggrandizing effort he makes now to rewrite his part in the wrongheaded, paranoid, calculated evil writ large by the Bush Administration, as some sort of acceptable and intellectually rational heroic act. No, I am sorry, but if there exists a hell, there is a special place in it for pudgy pukes like Goldsmith. Not to mention his band of dogmatic brothers Addington, Yoo, Bybee, Bradbury, Libby, etc.

    Perhaps it is because of the law and Constitution lens I am forced to view through due to my personal background, that I am blinded to the merit and logic of the eloquent arguments of Jeff, drational and others; but blinded I am, to the point of having nothing but a negative, retching visceral reaction to Goldsmith and his day late and multi-trillion dollar short self serving, rationalizing pablum. I am more than willing to admit that I am often a simplistic rube, but all I see in Goldsmith et. al. is a meager measure of a man whose reaction, when confronted with the predictable difficulties of his job as a guardian of the American democracy and Constitution, wet his pants and shredded the very thing he was tasked with protecting. There is no amount of flowery, intellectually rationalizing prose that can change that essential fact. Fuck Jack Goldsmith, and the ship of fools he sailed in on.

  24. merkwurdiglieber says:

    Goldsmith is just an Albert Speer from the Bushco version of the active
    executive. Speer still faced trial and was given a lighter sentence for
    his redeeming quality, that of a good guy from a bad outfit. Rationalise it
    as you may, in the end it made no difference in what they WANTED to do
    before the 2000 election.

  25. bmaz says:

    Also, in light of having mucked up literally everything else they have touched, I would like to congratulate the Cheney/Bush Administration on their sound, forward thinking policy on Pakistan, as evidenced by the collective positive news coming out of that critical nation this week. Heckuva job.

  26. Rayne says:

    Reading EW’s post and the entire thread, I can think of a single term that might sum up Goldsmith’s text: rationalization.

    How does an otherwise intelligent and sane person defend being swept along by both hysteria and criminal elements? Are we merely hearing the contemporary version of the “good German” — diffusion of responsibility for the breakdown of our Constitution and our free and open society among others who were either terrified, or as the PNAC indicated by way of its white paper, “Rebuilding America’s Defenses”, cooly and dispassionately preparing for and deploying hegemonic power in the wake of a new Pearl Harbor?

  27. RodUnderleaf says:

    Here is what the Jersey Girls said to the NY Times about the tapes,


    Published: December 26, 2007

    Re “9/11 Panel Study Finds That C.I.A. Withheld Tapes” (front page, Dec. 22):

    Our government’s official story regarding the attacks of Sept. 11, 2001, tells us that 19 Arab hijackers successfully defeated the United States military by hijacking four commercial airliners within two hours on a budget of approximately $400,000. These men, armed only with small knives, box cutters and Mace, were able to knock down the World Trade Center towers in New York City and strike the Pentagon.

    Because our loved ones were murdered on 9/11, we felt that the details of how the hijackers succeeded should be thoroughly investigated, so we fought for an independent 9/11 Commission. It seemed logical that our government would want to know what happened so as to prevent another attack.

    When the legislation for the 9/11 Commission was passed, it gave the commissioners full subpoena power. Unfortunately, that subpoena power was rarely used.

    You report that “the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda.” But while the panel did make “document requests” to the C.I.A., it did not subpoena the C.I.A. for the documents and tapes.

    A subpoena would have meant that the C.I.A. would have had to answer the commission as to whether the documents and tapes existed, and the agency would have had to explain its reasons for not turning these documents and tapes over to the panel. We would have had a paper trail about the evidence.

    You also report, “In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.”

    The question is: Are Americans satisfied with this?

    The 9/11 Commission did not fulfill its mandate to thoroughly investigate the 9/11 attacks. A real investigation into the events of Sept. 11 that examines all of the evidence has never been done and is still needed.

    Lorie Van Auken
    Mindy Kleinberg
    East Brunswick, N.J., Dec. 22, 2007

    • RodUnderleaf says:

      Bmaz, if you are referring to the question by Lorie Van Auken it carries more weight since she asks it.

      • bmaz says:

        Oops. Sorry. No, I was responding to Rayne’s last question at 46. Forgot to click the “Reply” button, and your comment slipped in before I got mine to Rayne in.

  28. Minnesotachuck says:

    Jumping off from EW @ 41:

    We need a combo of short/medium term protection steps, into which category most of the items EW lists fall, and long-term steps, which will require a fundamental reorientation of how the USA relates to the rest of the world. We are nearing the end of an era that began in the events of and surrounding the Spanish American War at the turn of the 20th century. That era was/is characterized by USA meddling, where feasible, in the internal affairs of other countries so as to support American business interests. Initially the universe of feasibility was limited to the western hemisphere and a few spots elsewhere where Europe-based colonial empires no longer held sway, such as the Philippines.

    WWII, by leaving the USA with greatly enhanced economic and military power, expanded the “feasibility universe” throughout the world, excepting those places dominated or heavily influenced by the other major winner in that war, the USSR. As the rivalry between the former allies devolved into the Cold War, US policy makers began employing the tactics developed in the banana republics in the decades after McKinley’s war throughout the rest of the world. These tactics have been recently documented in books such as Naomi Klein’s The Shock Doctrine and John Perkins Confessions of an Economic Hit Man.

    The era is coming to an end, however, for several reasons. First off, the peons in the developing countries are wising up and pushing out of power the economic elites that American businesses and policies enriched in the process of co-opting. Thus we now have the likes of Chavez, Morales, et al now in power in Latin America. Second, instead of policies embodying the wisdom of our greatest strategic thinkers, like the late Col. John Boyd, we have the clown show run by the likes of Dick Cheney and Condi Rice that is leaving both USA hard power and soft power decimated. Then there’s the gutting of American industry in the name of globalization, and finally the toxic fiscal carnage caused by the mix of Bush-Cheney governing by crony contracting and trickle-up tax policies. More creative minds than mine could go on.

    As US influence wanes, the risks of blowback, whether terrorist or otherwise in nature, will remain and even increase unless and until we stop meddling aggressively in other countries internal affairs. This will require a fundamental change to the direction our foreign policies have be on now for over a century. In an ideal world this process would begin today with a public conversation about how to best adapt to the new era that we are entering. This discussion needs to begin with candor about why and how our past policies have gutted our influence, left our national reputation in shreds, about why pollings of American approval ratings in other countries, even some of our “allies”, are in the single digits. Sadly, however, it is unlikely that any such conversation can begin in today’s political climate here. Hopefully we won’t have to fall as far as did Germany and Japan did in WWII.

  29. MadDog says:

    Wrt to Goldsmith, I’m with bmaz and Rayne. Sounds like much is rationalization with a small sprinkling of the acknowledged conservative movement’s mendacity.

    “We did this wrong stuff because the big, bad, scary terrorists made us. And obtw, we’d still have been supporters of the Unitary Executive. We don’t need no stinkin’ Courts or Congress.”

    Ideology blinds as reality sees.

  30. emptywheel says:

    Last I checked, the top leadership of AQ could all be easily indicted for attacking the US. Last I checked, OBL HAD already been indicted. Last I checked, money laundering laws would cover the funding for AQ in this country, if we enforced it with our buddies the Saudis. I just don’t agree with you that we are in an armed conflict with AQ. Yes, a conflict. But OUR most effective weapons are not arms, and the more we tell ourselves we’re in an armed conflict, the more we choose inappropriate weapons.

    And I also disagree with you that a Dem President needs to be obsessively focused on preventing the next attack. Again, the wrong mind-set, which leads to the wrong decisions. Clinton’s non-obsessive focus did far better than Bush’s obsessive focus, precisely because it gave him some distance to measure appropriate responses and weight relative risks. You can repeat all you want that I just don’t get it, but the example of Clinton (and the reasonable chance that someone named Clinton will be in the WH again) proves that your arguments about obsession do not have to be true. There is a very significant difference between an “enormously aggressive” attempt to prevent the next attack and an obsession.

    • RodUnderleaf says:


      Bin Laden is not wanted by the US Govt for the 9/11 attacks.

    • nolo says:

      “. . .Last I checked, the top leadership of AQ could all be easily indicted for attacking the US. Last I checked, OBL HAD already been indicted. Last I checked, money laundering laws would cover the funding for AQ in this country, if we enforced it with our buddies the Saudis. I just don’t agree with you that we are in an armed conflict with AQ. Yes, a conflict. But OUR most effective weapons are not arms, and the more we tell ourselves we’re in an armed conflict, the more we choose inappropriate weapons. . .”

      this may be the most perfectly-put
      rhetorical flourish i’ve ever read
      here, or at firedoglake. . .

      that is to say — it sums up, in just
      six or so lines [with emphasis supplied],
      almost all of what i’ve long felt, but have
      been singularly unable to articulate in nearly
      a so forceful, and concise way.

      thanks, EW!

      p e a c e

  31. Jeff says:

    Last I checked, the top leadership of AQ could all be easily indicted for attacking the US.

    Really? Including the reconstituted leadership the NIE told us is in Pakistan, many of whom presumably were not in top leadership positions on 9/11?

    Also, you know the Clinton administration argued (internally) that the laws of armed conflict applied when they sought to, in effect, assassinate bin Ladin, or at least permitted the potential assassination of him, right?

    I agree our most effective weapons are not arms, but I see no reason to think the more we tell ourselves we are in an armed conflict the more we choose inappropriate weapons. I think it’s perfectly possible to say there is a limited armed conflict with AQ, but there are many many choices in how to conduct it, and it remains not the most important part of the campaign against AQ and jihadi terrorists who are intent on attacking the U.S. I think it is perfectly possible to recognize the centrality and fundamental character of the proverbial campaign to win hearts and minds globally while still recognizing that there are some bad guys who we most likely are gonna have to kill.

    Frankly, I think too much is hanging on the word “obsession.” I’m happy to stick with “enormously aggressive” – and it’s precisely that aggressiveness that guarantees that the worrisome character of the executive branch’s response will be enduring. And I don’t think anything I said has to be changed in giving up the word “obsessed,” except that it puts a point on how probematic the whole issue is and is going to remain.

    • bmaz says:

      Last I checked, the top leadership of AQ could all be easily indicted for attacking the US.

      Really? Including the reconstituted leadership the NIE told us is in Pakistan, many of whom presumably were not in top leadership positions on 9/11?

      Um, yes, really. The “reconstituted leadership” are, under principles of criminal law, accessories after the fact, as well as aiders, abetters, and facilitators of a continuing criminal enterprise.

      In regards to use of the laws of armed conflict, there is a vast difference between the use in response to a direct and material threat or overt commission of an act per the Clintonian “law enforcement model” and the affirmative preventative extinction of any perceived nebulous threat potential via the Bush/Cheney 1% doctrine of unilateral aggressive war. It is more than possible to use military force, as you seem focused on, within the law enforcement model. Indeed it is done all the time in the form of peace keeping police actions.

  32. Jeff says:

    Here’s a bit out of James E. Baker’s In the Common Defense that substantiates one of the points I was making:

    When the NSC first considered the emerging threat posed by Osama Bin Laden and Al-Qaeda, the NSC legal advisor asked the head of CIA’s Bin Laden or “Alec” station to brief a select group of national security lawyers on the nature of the threat. This occurred before the Kenya and Tanzania embassy bombings of August 1998. The briefing was intended to allow the lawyers to work from a common base of knowledge and better respond to pop-up questions arising in operational context. The briefing was also intended as an opportunity to evaluate the underlying legal paradigm for combating terrorism. The conclusion: the UNited States could, and as a matter of legal policy should, lawfully respond to the threat within the framework of the Law of Armed Conflict (LOAC). In other words, the United States faced an imminent threat of attack and might appropriately respond in anticipatory self-defense using the full array of military and intelligence instruments available to the president as commander in chief. That meant that Osama Bin Laden (then referred to as UBL) and his organization were legitimate military targets. It also meant that in combating this enemy the United States must otherwise adhere to the law of armed conflict including the principles of necessity and proportionality in the use of force. The attorney general agreed.

  33. Rayne says:

    …then you’ve conceded we’re in a state of armed conflict with Al Qaeda;

    We’ve been dealing with organized and well-armed criminals for years, in the form of the Mafia/La Cosa Nostra, and their many sundry brethren by trade. They’ve been more difficult to identify as they have become embedded in our culture over a hundred years and do not adhere to or promote a single ideology. They are an on-going problem, likely made worse given the shift in spending to so-called anti-terror initiatives; they are far more insidious for their embeddedness and lack of ideology, as both factors make them more difficult to identify and root out. Why should we treat Al Qaeda differently? (And why do we not live in terror of the Mafia?) If anything, solid police work should be more effective in dealing with Al Qaeda given their separation from our culture and their ideology. Why do we need military assistance to deal with this threat when it appears to legitimize and validate their claims of oppression, rather than simply treating them as organized crime founded on extremist fundamentalism?

    It was simple, solid police work that identified the threat from sleeper cells here in the U.S., in advance of 9/11; it was the inefficiency of bureaucracy and blindspots (willful or otherwise) among leadership at multiple levels that halted the ability of solid police work to stop the threat. For all the money we’ve spent since that fateful day, Americans don’t feel safer — and their money has been wasted for the inability to see the real challenge as little more than the kind of organizational management problem that affects any effort of the size and scale one might find in multi-national corporations.

    Applying the LOAC has been problematic because it requires fluid and constant diplomatic relations in order to be effective. The Clinton administration may have been able to navigate this challenge as it was far better at diplomacy than Bush 43’s administration (a gross understatement here since diplomacy has never been a priority). But as soon as diplomatic dialogue is disrupted and one-sided, the ability to use LOAC is an assault not only on an organized crime group, but a threat to other nations’ sovereignty. This current administration never had any intention of acting in good faith, had no intention of recognizing the challenge of sovereignty. Its disengagement with NK is one example, as is its preemptive, futile and illegal assault on Iraq; they laid out their desires for hegemony very clearly in writing for us, in advance of taking office. Unilateral power wielded hegemonically has no use for diplomacy.

    We are far better off to renounce the practices of this administration as ineffective at best and maliciously toxic at worse, in direct contravention to fundamental American mores. We would be better off to aggressively pursue diplomacy in concert with equally aggressive law enforcement, in addition to taking effective measures to deal with the very roots of terrorism. Obsession will only blind us as it has this administration in its inability to identify, develop and implement specific, measurable, relevant steps to deal with al Qaeda and other national security threats.

    So much for a CEO presidency; Americans should have looked more closely at his resume. And they should have listened more closely to echoes from Cheney’s past: “I had other priorities.”

  34. emptywheel says:

    Well, perhaps we’re just disagreeing semantically, though I still believe there is a rational way to go about responding to AQ and an irrational one. The irrational one blows the threat out of proportion vis a vis the other threats out there, thereby ignoring strategies that can and would address multiple threats. I don’t think we will have generations of terror presidents bc I think the chances of the US remaining the target it is–without being susceptible to far worse domestic terrorism–is not all that great, to say nothing of the other threats out there that, if they’re not dealt with in tandem, will do far more destruction and make the whole terror think moot.

    • Rayne says:

      Perhaps, although I reject any notion that a Democratic president will necessarily be obsessed rather than aggressive about terrorism.

      While we’ve been piddling around half-heartedly committed to wiping out al Qaeda, organized crime makes more than a trillion dollars a year around the globe, and may actually provide the tools that smaller, less organized terrorist organizations want to pursue their much narrower ends. Organized crime may contribute in no small part to the extinction of species like elephants, since they operate most trade in illegal ivory; how do we put a price on a lost species?

      There’s also one other reason why conservatives may not want to look too closely at increasing aggressive police work versus so-called anti-terrorism and military efforts, preferring a Democratic president be obsessed with terror. This administration is certainly an organized crime syndicate in its own right. Look at the illegal exportation of silencers by Blackwater, funded by the U.S. government; what legal justification is there for this, for not yanking Blackwater’s export license or any contracts it holds with the U.S.? Unless of course somebody in the administration benefits from the status quo.

    • Jeff says:

      Ok, well, I think the U.S. is going to remain the target it is for a long time; you agree that if that’s correct, then we’ve got a long time of terror presidents? I certainly agree that if we don’t remain the target we are, then we don’t got terror presidents.

      Needless to say, I think I’m offering a fully rational response. Fully, fully. But again, I think the smarter terror president would precisely connect different threats where appropriate and address them in tandem, and also make sure we don’t fail to pay attention to other threats simply different from the threat from AQ et al.

      Domestic terrorism certainly not at odds necessarily with the threat as Goldsmith describes it. You mean other kinds of terrorists?

  35. merkwurdiglieber says:

    It is a failed foreign policy, pursued since 1967 especially, that has
    created this mess. A diplomatic course change could not be more dangerous
    than the militarisation of our current failed policy.

  36. PetePierce says:

    As to climate change, just watch the parade of SUVs down your streets. Americans don’t give a FF about climate change except for a small number/niche who take very token symbolic actions that have no real impact on overall climate threats.

    Pure and simple, Bush, Goldsmith, Addington and the rest want pure power.

    This powergrab is being facilitated and promoted by indifferent and uninformed Americans and an indifferent and uninformed and totally cowardly Congress.

    I didn’t see any mention of the consequences of this Unitary Executive theory, where the real terrorism is from DOJ and DHS and the mind set of “We’re watchin’ your ass and watchin’ it twice so our power curve grows exponentialy and nice” nation.

    We have an FBI that is constructing a billion or two billion who knows data base that purports to be biometric and has a 40% error rate in ideal light and an 80% error rate at night.

    Americans are oblivious and indifferent to it; and MSM has almost totally ignored it.

    That’s the real terror we’ll look back on–the loss of habeas; courts too timid to stand up to people like Unitary Executive Material Witness Mukasey, and people being watched and arrested all the time with false evidence manufactured with computer programs that are totally erratic.

    Goldsmith doesn’t address it; and I haven’t seen it much addressed in any blogs as well.

    FBI Prepares Vast Data Base and Indifferent America, Congress, and Media Yawn and Drool in the Corner

  37. RodUnderleaf says:

    Some may find it interesting to note in light of todays events that Cheney has been heavily involved in the Pakistan file lately.…..-pakistan/

    How could Cheney have known that BB was a target. Its just a coincidence that this stuff happened now. That they got the shock and turmoil they needed to…

  38. Jeff says:

    Why should we treat Al Qaeda differently? (And why do we not live in terror of the Mafia?)

    Because Al Qaeda, and not the Mafia, is intent on mass-casualty attacks on the United States with weapons of mass destruction if possible? And that’s a realistic intent too, unlike, say, the absurd hysteria you hear from the right about AQ’s desire to re-establish a caliphate from Cordoba to blahblahblah, which if we don’t take seriously we’re appeasing them blahblablah Hitler blahblahblah.

    • Rayne says:

      One man’s “mass casualties” is another man’s effective marketing strategy.

      In Organized Crime and American Power: A History, author Woodiwiss wrote that business’s criminality led to 14,000 deaths a year due to industrial “accidents”, 30,000 a year due to unsafe and possibly illegal products per year, and hundreds of thousands of cancer deaths due to legal and illegal chemical contamination and pollution (some of the legality purchased by corporate profits donated to legislators).

      And mass casualties are acceptable up to a point where it costs more to change a product or process than it does to pay any possible claims. I’ll point to the very recent case of contaminated contact lens solution that led to permanent corneal damage in an estimated 200 people; the corporation knew about the contamination, but calculated the cost of claims to be less than the cost of a recall — so it didn’t bother with recall and is instead going to pay the cost of a class action lawsuit. God help those patients who don’t become part of the class…

      At the time Woodiwiss wrote his text, the U.S. government projected annual costs of street crime at $4 billion, or less than 5% of the cost of business crime.

      Al Qaeda may simply not have figured out how to do as good a job at marketing its objectives as the corporate world has. Maybe if the corporate world was a little more forthcoming about its agenda and Al Qaeda used a bit more corporate-speak, they’d be on the same footing with police agencies around the world.

  39. LS says:

    From Goldsmith’s hearing:

    “Senator SPECTER. I have one final question. That is, you talk
    about retroactive discipline and that the executive branch officials—
    that they might be summoned into a court and face enormous
    attorneys’ fees, face their reputation—and are not as brave
    as General Hayden. As you characterized him, he’s going to have
    white chalk on his spikes because he’s going to go right up to the
    But to what extent can you specify the intensity of that concern
    by the executive branch officials to be worried about whether
    they’ll be subpoenaed, as Kissinger was, or hauled into court—some
    foreign court, perhaps—as a violation of human rights?
    Mr. GOLDSMITH. In my experience as head of the Office of Legal
    Counsel, worry that some court, or judge, or prosecutor, or investigator
    down the road would interpret these criminal laws differently
    than the administration did and hold them criminally liable, was
    a central, prevalent concern in the administration.
    Senator SPECTER. A real fear?
    Mr. GOLDSMITH. A real fear. Yes, sir.”

    • BayStateLibrul says:

      Thanks LS,

      ||Mr. GOLDSMITH. In my experience as head of the Office of Legal
      Counsel, worry that some court, or judge, or prosecutor, or investigator
      down the road would interpret these criminal laws differently
      than the administration did and hold them criminally liable, was
      a central, prevalent concern in the administration.||

      Wow. Isn’t that the crux of the problem
      and why we will have such a hard time prying out the truth from
      these chickenshit bastards. They are afraid of going to the fucking slammer
      because what they wrote was a STRETCH… so much for the courage of their convictions… I say this is THE HIGHEST OF CRIMES

    • merkwurdiglieber says:

      We have nothing to fear but fear itself, nameless, unreasoning,
      unjustified fear. What ever happened to that idea? Oh, the hated
      New Deal that still haunts the neocons.

  40. Jeff says:

    The “reconstituted leadership” are, under principles of criminal law, accessories after the fact, as well as aiders, abetters, and facilitators of a continuing criminal enterprise.

    So you’re saying from now to eternity we can arrest anyone we feel confident we can prove beyond a reasonable doubt in American court is part of the leadership of AQ and charge them and try them as accessories after the fact and/or aiders, abetters and facilitators of a continuing criminl enterprise? And does this extent to anyone we can prove beyond a reasonable doubt in American court is a simple member of AQ, even if they joined years later and had nothing whatsoever to do with 9/11 or the earlier attacks?

    • bmaz says:

      As to the leadership, and to the extent that AQ is indeed the continuing direct and stated overt threat to the United States, it’s citizens and interests you describe; yes, I think that basis could be made. As to the “simple members of AQ”, it would depend on the individual person’s provable involvement and conduct I should think. I presume you are not suggesting that American courts should roll up persons willy nilly, contra to due process, that have no connection whatsoever to US interests simply based upon the rumored status as a “member of AQ”.

      • Jeff says:

        No, but I am suggesting that the criminal justice paradigm as you describe it is not obviously less problematically elastic and prone to abuse than the armed conflict paradigm, or a mixed paradigm; and on the other hand, it has notable problems of its own to do with scale, punishment v prevention, evidence-gathering and so forth.

  41. Jeff says:

    One man’s “mass casualties” is another man’s effective marketing strategy.

    Note I said attack. I don’t know that book, and I have no interest in defending this that or the other corporation. But surely you can recognize the distinction between the deliberate infliction of death and even the preventable, neglectful but not deliberately aimed at death. And surely we can agree that just because we should be taking certain steps to stop nasty corporations from doing nasty things doesn’t mean that we should be taking the same steps to prevent AQ from attacking the U.S. again.

    • Rayne says:

      Jeff, is there really much difference between a small group of fanatics desiring to hurt people, and massive multinationals organizations who are completely indifferent to human life when their objectives include and are not limited to the death, dismembering or maiming of humans? We’re merely arguing about tactical and strategic outcomes, with the little group of fanatics bent on the tactical, and the multinationals bent on the strategic, and both of them using each other in the process. Halliburton has certainly benefited from the existence of Al Qaeda, and they don’t have to change their marketing one whit when Al Qaeda can literally be the bad guy.

      The only difference I can see between the much deadlier corporate promoters and beneficiaries of the Shock Doctrine and disaster capitalism is that Al Qaeda isn’t welcome in the White House. At least not in this administration; Sainted Ronnie Reagan welcomed Al Qaeda’s precursors, those “Afghani freedom fighters” back in the 1980’s with open arms and money for arms.

  42. Jeff says:

    is there really much difference between a small group of fanatics desiring to hurt people, and massive multinationals organizations who are completely indifferent to human life when their objectives include and are not limited to the death, dismembering or maiming of humans?

    Yes, there is – and you can recognize it regardless of which one registers higher on your ultimate bad-ometer. There are, in fact, multiple differences, and I think there is an existential and moral distinction between a group of fanatics who would like to explode a nuclear bomb in New York or DC, and show all signs that they are going to try their damndest to be in a position to do so, and a multinational organization indifferent to human life whose indifference is one of the causes of many deaths. But even if you don’t buy that, do you seriously think a nuclear attack on the United States can be normalized with respect to what Bruce Ackerman calls the U.S.’ “effective sovereignty” the way the conduct of those multinational organizations can be?

    • Rayne says:

      Homicide versus manslaughter.

      That’s the argument.

      And there’s still a LOT more dead bodies on the manslaughter side of the pile.

      I can’t make the same moral assessment you make, Jeff, when you actually think those two groups are separate.

      Blackwater, Halliburton, numerous other corporations wouldn’t be doing anywhere near as well as they are today without the use of Al Qaeda as a bogeyman, and the administration as a willing marketer. All of it your tax dollars at work.

      As Dr. Maryam put it so bluntly, Stop telling lies to yourself, American.

    • bmaz says:

      Well, we may have disagreed on a few points today, but I do really like the term “bad-ometer”. Is that available for use with permission?

  43. Mary says:

    RIP Benazir Bhutto.

    Re: Goldsmith, I’m not sure how much is disagreement and how much is framing, but I really think that I flat out disagree with “Though where Goldsmith is right is where he says that, in fact, Addington’s judgment is faulty, because it has made the presidency less strong” and also with the appellation “honest” in “honest conservative” although perhaps I am too fact focused on that front.

    How is Bush’s presidency “less strong” than those that went before it? It absolutely is not. He hands over and loses billions of dollars with no accountablity (other than the “accountabilty” that, after 8 years, he may leave office – whoopee). He has flagrantly violated human rights, civil liberties, criminal laws and minimal standards of decency and not only has he had no accountability – no one is even speaking in terms of ever requiring accountability and not only that, Congress has now rushed to statutorily hand over more and more of not only it’s own power, but the Judiciary’s power and the people’s power, becoming nothing more than an enabling wing of the Bush presidency.

    People have more contempt for the presidency, at home and abroad; and the United States is a weaker country – ecnomically, morally, from a leadership and respect standpoint over which any other president’s can preside, but the office of the President has been immeasurably strengthened at the expense of the strength of our democracy and our legal system.

    And there we get a bit to the “honesty” element, bc I think Goldsmith knows and understands that and is dishonest to say or imply anything to the contrary.

    I’m also going to have to throw in a few things, here, as the counterbalance to the “golly, everyone is allowed to go crazy and be torturing criminals because it was a scarey time” conceptual argument. IMO, that’s bull. Where that kind of an argument can come into play was with, for example, the initial roundups of Muslims (including a crew from my worktown of Evansville, IN). There were overreactions, people got a bit nutsy for awhile, then as that “while” went, they released people wrongfully held, apologized, thought through to see what could be learned, etc.

    That is what happens with an honest overreaction to circumstances and it is why we have some defenses to bad things done in that kind of state. But that’s not what happened with Addington, nor with Goldsmith, Comey and others, at all IMO. And here are some of the facts and factors on which I base that opinion.

    First, Comey already saw very early on what happens with an overreaction to coerce confessions with Higazy. What was the reaction to that situation? Was it soul searching, sincere apologies, realizations that things were going too far and needed to be reined in so that we didn’t further endanger the country or individuals by use of coerced, false information? No – it was seemingly, based on the public fact trail of what was done, “let’s cover up that we used illegal coercion to force the false confessions.”

    Sorry – that’s not an “honest” response. For example, I had a dog get loose the other day and chase my neighbor’s sheep into a pond (they all survived) I didn’t know – just that she was loose and came home wet. When my neighbor showed up knocking on the door and I knew that, because of my error in judgment the dog had been allowed to run up and create havoc, my first words were: “I’m so sorry, this is my fault and my responsiblity, what do I need to do to make it right.” That’s what you do when you have an “honest” misjudgment. You can’t get to “taking responsbility” fast enough.

    When your response is: how secret can I keep this; how much can I cover up; how can I keep my friends from getting in trouble for breaking the law and hurting people; how can I make sure that my boss isn’t politically hurt for his role in torture; etc. – – those are not honest responses from honest men and women.

    On a related front, Goldsmith never really did what needed to be done as a lawyer to defend the law. Sure, point to the “new and improved” torture memo, but when you do, don’t forget his very dishonest footnote – the one that says, “everything anyone did under the old opinions, no matter how depraved, immoral and illegal, is AOK by me as long as they’re my buds.”

    What he did was to have his cake and steal someone else’s for his friends to have too. His “gift” of footnoted forgiveness to “his people” was a direct theft from their victims and my country. And it was a theft that keeps on taking. If Goldsmith had been less concerned with “fixing” fro his friends, and there were a strong and correct opinion, then Bradbury could not so easily have come and undone. If Goldsmith had been “honestly” concerned with the depravity generated by his friends’ “mistaken judgment” he would have been making sure that his opinions and positions required that the innocent be released, that real trials be required, or that he resign and speak openly on behalf of demaning justice for his friends victims. Instead, his primary motivation has been to insulate and protect his friends from accountability and I can’t see how that is “honest” in any aspect and it certainly is not honest when it is offered up under the pretext that he really was doing anything with his “here’s several decapages on why torture is bad, but here’s a footnote that says my friends can do it anytime they want anyway.”

    A “honest” conservative is someone like Bruce Fein, not so much Goldsmith or Comey. They were loyalists, not conservatives. You could pull out or drop in all kinds of ideology, but the importance to them is in protecting their friends from any consequences from their “bad judgment” and if that means that victims of that bad judgment suffer for days, weeks, months, and years longer – or die, become refugees, commit suicide, freeze while chained, leave ophans behind, have the orphans abused and left to die, etc. – – – those are costs they just don’t think about. If they were honest, they would and they would demand to be allowed to take their own responsbilty for those consequences as well. Honest men and women would be horrified by their role in so much of what was done.

    And I think that, to be honest, he also needs to come very clean with his own ideology that law is something to be disdained and which stands in the way of allowing the “elite” in the Republican party and the imperial persona in the Presidency from doing what should be done. Because I have seen some of the conservative movement in action (let’s face it, as a blue eyed Kentucky blonde who was a very good tester, it’s not like I never got the right wing com’on at lawschool, including offers to set up a federal clerkship, etc. if I was in the fold) I tend to buy Griffin’s take:…..dency.html
    even though I haven’t read the book (but I have read some of Goldsmith’s writings).

    Goldsmith portrays an executive branch increasingly “ensnared by law.”

    Griffin also mentions how often Quirin, an abysmal case decided by a court who did not know what would happen if they ruled otherwise, was relied on by the Bush administration. Keep in mind that SCALIA said, as an honest conservative, that Quirin was such bad law he was ready, willing and waiting to overrule it in Hamdan, and if only O’Conner and Rheinquist had been as honest, that’s were we would be.

    Griffin does cut Goldsmith this slack:

    Goldsmith is right that executive branch lawyers have a tough job. As he says, it’s difficult to keep an open mind under the relentless pressure of the “threat matrix.” There are always people around willing to push the envelope of what is legally acceptable on the basis of flimsy rationales. That’s why we need lawyers who know their history just as well as they know their law.

    The thing is, this has been the case since forever. It was certainly the case for Clinton during the millenium celebrations – it was certainly the case while the Soviets had a gazillion nukes trained right on us. Pressure is something felt repeatedly by lawyers from clients, because no client wants to be constrained by law. I’ve probably told the story of my friend who got a call from a client at a bar, wanting to have a serious discussion on how he could “legally beat up” a guy he was unhappy with.

    Every criminal defense lawyer is constantly barraged with the “what ifs” of their client going free – and what if they kill again, wrap again, etc. Other lawyers can face staggering impacts from their decisions and actions, on how health care decisions are made; who loses jobs and livelihood in mergers, etc. And over and over, brand spanking new, still child-faced, lawyers are asked by clients over and over to help assist in breaking the law and covering it up. The honest ones won’t – the won’t help break the law and they won’t engage in conspiracies to lie and cover up.

    But the record of the Bush lawyers – in DOJ and elsewhere (like Bellinger, Addington, Hyanes etc.) is not only a willingness to issue memos to solict illegal and immoral behavior, and to provide guarantees of non-prosectuion, but also to make public statments to the American public and to Congress, and private statements to tribunals, that have been shown, over and over to be lies, fibs, misrepresentations, and dissembling well beyond parsing.

    Remember that “honest Jack” went to bat for Haynes, “bad judgment and all” to be placed on the Fourth Circuit – – – even while Haynes was not only misrepresenating to a Congressional Committee but also while Haynes was attacking and stabbing far better men than he in JAG. And that should give you some real pause right there. Not all, but very many of the strongest champions for the rule of law and justice were JAG – men and women who view the body parts and deal with the horrors of terror and war all the time. And yet, they didn’t feel the same need to torture and cover up torture.

    It was not a “misjudgment” that had Bushco meeting to plan out invasions of Iraq before 9/11. It was not terrified overreaction that had them meeting with telecoms in Feb of 01. It was not blind fear that caused Rumsfeld to use 9/11 to get Cambone to see if we couldn’t use the incident to launch war in Iraq. It was not an “honest” misjudgment that left Arar to rot in Syria, allowed a bipolar chef to be abused for years, disappeared Padilla into abuse for years, sent hundreds to GITMO and thousands to Iraq/Afghan detention with no review.

    It is that, once you commit the crime with no real and sufficient reason, you either decide to step up, be responsible, apologize and do what is right – – – or you decide to dishonestly use and abuse your power to cover up and escape consequences. That’s Golsmith in my book. So he is “not as bad as” an Addington, just like Bush is not as bad as Hussein. But that isn’t the same as saying he’s an honest guy with heaping helpings of “the right stuff.”

    JMO, obviously most everyone else’s mmv

    • bmaz says:

      Heh heh heh. What? My angry rant on Goldsmith @ 42 above wasn’t enough; felt the need to recite all the gory details behind the conclusion in my last sentence there? I genuinely love you Mary……

      • drational says:

        and in response to Mary and bmaz at 42:
        Having been severely abused by you both over Goldsmith at TNH, I should have known better than to open my yap and side with Jeff….
        However, I need to extract the concession that Goldsmith is in a different league of badness than Addington, Yoo, Bybee, Bradbury, Libby, etc.

        If we keep the bad-o-ometer running, I’d guess he wouldn’t top a 7.

  44. Mary says:

    Jeff – we have had groups intent on doing massive damage to the US before, including massive nuclear damage. Whether it was the anarchists or other domestic or international groups intent on sabotaging nuclear plants, etc. the concept of groups of fanatics being intent on mass damage and on realistically attempting to engage in mass damage isn’t really new.

    The problems have not been so closely tied to or related to a domestic criminal law v. military paradigm, though, as to ignorance and also the abandonment of BOTH the domestic criminal justice system AND the laws of war in furtherance of asset grabs in Iraq and power grabs domestically that did nothing to address issues.

    There are some changes that might make sense to consider on the domestic criminal front and I hope someday we have that discussion. There are not many that were needed on a military front and the MCA needs to be undone sooner rather than later and military rules, including military rules relating to occupying and assisting forces, need to be reinstated. THose include the status hearings contemplated by the Geneva Conventions when there are non-battlefield detentions. The GCs spell those out, no one has to reinvent the wheel there – just abandon depravity as the norm.

    As to the “real” ness of the threats – the truth is, many haven’t been real and the masks of secrecy are used to make more of some than was ever there. That does a disservice to everyone for the real and actual threats. But there’s no question that Padilla (who, btw, never was a member of Al-Qaeda even by the Government’s admissions), for example, who may have been a “real” threat from the standpoint of being willing to do bad things, was not a “real” threat for a dirty bomb, discussions with crazy guy Zubaydah about swinging buckets over his head to simulate centrifuge notwithstanding. Similarly, the “reality” of the many threats that everyone scampered to address during Zubaydah’s tortured confessions was illusory – and ditto for the “reality” of the Hussein/Bin Laden training connections tortured out of al-Libi during the Egyptian “Torturers for Dick Cheney” reunions.

    So the abandonment of law not only leaves us spread so thin we are less safe, it distorts reality in ways that are horribly unsafe.

    • nolo says:

      one more gem, then i’ll re-lurk:

      . . .So the abandonment of law not only leaves us spread so thin we are less safe, it distorts reality in ways that are horribly unsafe. . .


      happy new year!

  45. Jeff says:

    “bad-ometer”. Is that available for use with permission?

    Though I should probably guard the results of my extremely rare moments of inspiration more closely, sure, use it, with credit. (Kidding.)

    the abandonment of BOTH the domestic criminal justice system AND the laws of war in furtherance of asset grabs in Iraq and power grabs domestically that did nothing to address issues.

    Totally agree, which is why I don’t think accepting an armed conflict with AQ in itself is the problem. Indeed, I totally agree with you on the abandonment of law as the problem, but of course armed confict is a very ruly affair. So I take that to be a point in favor of my perspective.

    As for the threat, I don’t think AQ is in all respects an unprecedented threat. I simply think it combines a number of factors – including the fact that they successfully attacked us once at relatively low cost to them and with spectacular results that went beyond anything a nonstate actor had done in one blow before, unless I’m mistaken – that make it distinctive. Thus the Cold War was an open-ended conflict with the threat of nuclear destruction hanging over our heads (and it’s not a coincidence, I suspect, that this previous open-ended threat was marked by particularly repressive anti-civil liberties measures), but because the adversary was a state with population and territory to protect, a dynamic of deterrence was possible, and real. Not so in the present instance. And so on. I don’t need to say history started on 9/11 to say that it marked something of a decisive moment.

  46. WilliamOckham says:

    There is a lot to respond to here. First, Goldsmith’s title is more revealing than he intends. We do indeed live under a terror presidency. They practice it at home, encourage it abroad, and inflict it on themselves.

    Goldsmith’s biggest failure (shared by most Americans, unfortunately) was his inability to see that our reaction to 9/11 was a greater threat than al-qaeda ever could be. The attacks on that day, however spectacular and horrific, were inconsequential from a historical and practical perspective. Turning the most dominating military and political force in history into a tool to satisfy the unthinking bloodlust and avarice of petty criminals and their emotionally-damaged ”leader” will reverberate through history long after we are all gone.

    It may yet be possible to undo the damage inflicted on our own country, but the havoc we’ve wrought on the planet as whole is beyond our power to undo. Between 500,000 and 1 million dead in Iraq. Countless lives ruined due to rape, maiming, and other forms of violence directly and indirectly attributable to our ”war on terror”. In country after country we’ve promoted torture, violence, and repression. On top of all that it seems almost silly to point out that, in every measurable way, we are weaker and more vulnerable than we were on 9/12/2001. Except that many will use that as an excuse to continue the insanity.

    • nolo says:

      . . .Goldsmith’s biggest failure (shared by most Americans, unfortunately) was his inability to see that our reaction to 9/11 was a greater threat than al-qaeda ever could be. The attacks on that day, however spectacular and horrific, were inconsequential from a historical and practical perspective. Turning the most dominating military and political force in history into a tool to satisfy the unthinking bloodlust and avarice of petty criminals and their emotionally-damaged ”leader” will reverberate through history long after we are all gone. . .

      this thread is simply littered with
      luminous truths, and so-succinctly-put.

      thanks, sir occam!

  47. bmaz says:

    Your yap should be open, that is how discussions are held. I prefer the term “enhanced discussion techniques” to abuse…….

    I will grant that Goldsmith is not as bad as Addington, Yoo, Bybee, Bradbury, Libby, etc. But he doesn’t get too many bonus points simply for being a punk rogue criminal as opposed to a big kahuna rogue criminal. I would also note that during the brief time he was there, Goldsmith pegged out on the bad-ometer pretty impressively; had he spent extended continuous time there like the others, he clearly would have matriculated to their level.

  48. Rayne says:

    Passing thought: what if the locations across EU that permitted “logistical flights” and may have facilitated either video creation or storage were one-for-one former Gladio sites?

    Food for thought. I especially like this little bit from that link:

    Today, with the Pentagon’s “Salvador Option” on the table, it’s time to revisit this hidden history of European counter-terrorism. While the Washington press corps seems convinced that the main problem with the “Salvador Option” is that the Pentagon is taking over what’s always been the CIA’s turf, the story of NATO’s stay-behind armies suggests that whether the CIA or Pentagon runs it, the new program will be a very ugly business.

    As one of Gladio’s operatives said, “You had to attack civilians, the people, women, children, innocent people, unknown people far removed from any political game. The reason was quite simple. They were supposed to force these people, the Italian public, to turn to the state to ask for greater security.”

    Despite repeated requests from researchers, the CIA, like MI6, refuses to release its files on the subject. Before the government begins the new “Salvador Option,” though, isn’t it time for the world to learn about the very first one?

    Interestingly familiar M.O., this “strategy of tension”.

  49. masaccio says:

    I think a big part of the problem between Jeff and EW is the utter lack of a coherent theory of responding to terror tactics. This book, The Pentagon’s New Map, provides just such a coherent theory which the author says supports the invasion of Iraq. I have read it, and cited it in a thread at FDL. The author begins by pointing out that any theory needs to grab the mind and link all of the disparate information we carry around and worry about into a cohesive whole on which there is broad bipartisan agreement. It also has to suggest ways of proceeding.

    I think his theory does that, and I think it is influencing the Very Serious People of the bipartisan foreign policy elites. For this purpose, I will describe it as the theory that the goal of the US is to export security to the part of the world that rejects Western norms of civilized behavior, by force if necessary, in order to make the world safe for commercial activity by the forces of Huge Money.

    On the progressive front, we have nothing to compete with this world view. We have no coherent theory, and as best as I can tell, we have no competent people working on one. Check out They argue around the edges of a coherent alternative policy, but never get there. No wonder Glenn Greenwald dismisses their viewpoints. Several commenters here argue with some of them when they get too hawkish, and they have a group of wonks who do a great job of discussing alternative approaches to specific problems. But, there is not the first sign of a theory that all of us could agree makes sense and would sell to rational people of both parties.

    Most of the comments above try to see why the current approach isn’t working, and work towards some alternative, but until we have a coherent alternative, a progressive theory of US power and its use in the world, we aren’t going to make an impression anywhere else and we certainly aren’t going to upset the cohesive agreements that the elites, including our presidential candidates, have with each other about the acceptable bounds of discussion.

    • emptywheel says:

      GReat point, all around.

      The problem with democracy arsenal (and I wrote several posts on it over at TNH) is that they still believe in exceptionalism and hegemony–the myth of American dominance that has survived since the end of WWII. The Republicans of course base their theory on hegemony posing as exceptionalism. But there is really no way we can continue both (or sustain the myth of both).

      So I would base a theory on the opposite of Barnett’s book (which I haven’ read, though I have read Barnett): pull everything out that is causing critical parts of the world to reject norms of civilized behavior. But you can’t do that until US involvement in the oil fields of the ME is one more commodity relationship, not THE commodity relationship in the world.

      • masaccio says:

        One point Barnett makes is that if we are going to export security, we have to realize that we need to deal with both the invasion part and the rebuilding part. We have to be able to do both, and we need separate institutions to do it, sort of a civilization infrastructure corps. These ideas are just insidiously appealing to the exceptionalism/hegemony crowd. It says that Iraq was a great idea, but we didn’t have the needed Civilization Corps. All we have to do is get one of those, and we are back in business.

        Based on what I see in the pundit/policy elite class, that is just seductive. Heaven help us and our future dependencies.

        • bmaz says:

          “Heaven help us and our future dependencies.” Yeah, no kidding; because you have to figure the same group that brought us to where we are today militarily and economically would bring the same level of competence, integrity and success to the civilization infrastructure corps. Ugh.

          masaccio, some time back you asked me to email you. I lost your email address, along with many others, in a hard drive nightmare loss since we last conversed. I tried leaving you a contact email on that thread (the 12/16/07 Football thread I think). Feel free to retrieve it and contact me anytime; just for reference, I would like to have your eaddress too. Happy holidays.

        • emptywheel says:

          There’s something to be said for a civilian infrastructure corps. Had we sent one to Pakistan in exchange for their help after 9/11, Bhutto might still be alive. That’s been at the core of my argument about Iran: if we can’t get Pakistan right (and it seems we can’t) then how could we expect to get a non-ally right, after bombing them to hell and back? Though I’m more interested in the development of secular civil society.

          Of course, even the kind of aid that China offers would be a good start, but it’s not going to happen. Our means of exercising hegemony–through free trade, mostly at this point–is completely incompatible with the development of real civil society.

          Plus, we’re broke. So at this point, we need to think of foreign policy that also meets our own financial needs.

          • PetePierce says:

            Bhutto wrote that her security was reduced weeks ago, and it was ignored by the U.S. and Pakistan, although Biden said he kept harping on it personally with Mushariff.

            It seems that all the prominent Senators who now claim they were so tight with Bennie Bhutto and talked to her recently, Dodd, Biden–given the nuke threat would have made damn sure that she had better security. They go to more trouble for a secretary.

            With billions invested (thrown away for the most part) in Pakistan, why didn’t Rice insist on world class protection for Bhutto if for no other reasons (and there were many other reasons) that the prospect of more loose nukes besides the Soviet loose nukes could enter the arena.

            Billions in Aid to Pakistan Was Wasted, Officials Assert

            With billions invested why didn’t Musharrif protect Bhutto. This result was almost inevitable. Hamid Karzai is extremely vulnerable, although he is in reality Mayor of Kabul.

    • Rayne says:

      …I will describe it as the theory that the goal of the US is to export security to the part of the world that rejects Western norms of civilized behavior, by force if necessary, in order to make the world safe for commercial activity by the forces of Huge Money.

      There is an enormous blind spot on the part of Huge Money (read: corporations); they have bought into the notion that doing business is a proxy for diplomacy, just as citizens in western society have embraced the notion that consumerism is a proxy for democracy. Huge Money believes anything that restrains it, like taxes, are necessarily bad; yet taxes used prudently to ensure solid and secure infrastructure are the very backbone and insurance of Huge Money’s existence. What Huge Money perceives as effective government is anathema to democracy, and they can’t or won’t see it since their current iteration depends on not doing so.

      It’s our inability to articulate clearly why and for what ends government should exist that we cannot come to terms with, why we cannot find common ground on dealing with terrorism. In some inexplicable way we have completely regressed back to the earliest days of our nationhood, when we needed to justify our separate continued existence to a monarchy. And yet unlike our founding fathers, we’ve not the intellectual breadth or capacity to explain ourselves (present company and hostess excepted); as a percentage of the population, those who are fully engaged and in possession of the capacity required to negotiate this justification are incredibly small. It shouldn’t be left up to us alone; it should be a national dialogue, in which a substantive majority of people participate. We should be able to come to some agreement as to what our national values are, and how we will exercise our collective power in light of those values.

      With that in mind, I take offense at what I perceive as Goldsmith’s inaction; we are a nation of doers, not people who passively consent to be guided by fear or by fear-driven bullies. Inaction is a choice in itself, and it’s not a constructive one. How does fear of terror, let alone fear of government, resolve itself through inaction? This is the fundamental error of William Buckley’s definition of conservatism — the man standing in the stream of history, shouting “Stop!!” Inaction does not stop the future; nothing can. We can only move to shape it, else other dark players who masquerade as conservatives will shape it for us.

      Perhaps that’s what this book tells us about Goldsmith, that he is a conservative in Buckley’s sense of the word, and that he is unable to grasp that those around him in this administration are far from conservative in any sense of the word. He is further unable to see that they use his fear of the future against him and all of us, to their own ends.

      • bmaz says:

        So, who is Jack Goldsmith?

        A) The brilliant, patriotic, conservative legal genius so talented he is worthy of being entrusted with crafting the legal opinions for the executive branch of our national government and filling an endowed chair/professorship at Harvard Law to train future generations of legal minds that will lead our country?

        B) A pedestrian stooge conservative “standing in the stream of history”, soiling his pants in fear in the face of the foreseeable vagaries of international despair and violence, mindlessly giving cover for corrupt, pillaging incompetents torching the country and world for their own profit and sick glee?

        I don’t know the man, so I have no idea; and he passes himself off as both, using whichever view serves to rationalize his actions and prop up his image. Personally I have a huge problem with either one of the alternate Geldsmith realities. If it is Goldsmith A, he is too bright and principled to have not known, understood and intended all the criminal torture, Constitution shredding and general lawless hell he hath wrought and he is a despicable human being. If it is Goldsmith B, he is too fucking stupid and vapid to be anywhere near the levers of national government or Harvard Law. Evil genius or addled rube? Which is it Jack?

  50. JohnLopresti says:

    I think it was important that Falujah’s fate was selected for early US tactical effort. It is important, as well, drawing a comparison between ethnic aggregates, as one commenter briefly mentioned, that one of the interesting innovations of s.VII was the zeroeth element’s introduction to the ‘west’, as were the rest of the numerals; for some reason, I credit IBM and other IT entities with giving us the null set, kind of a place holder for the 0th. Without waxing too abstract here, there is great similarity between the spirituality which Fallujah represents and the kind of neotheistic secular dawn the west enjoyed over the past 1.4 millenia. It is appropriate that e.w. evoked a comparison between anthropogenic climate hockeystick curve change and mouldering bureaucracy as exercised by some bright, but partly impaired folks. There is a threshold beyond which judgment must discern compartmentalization is inappropriate if decision by committee is to be verisimilarly based and not venture into the misshapen world of tortcha and its coverups; I think Goldsmith someone trying to touch a toe in both worlds. But I would like the US-Scourt to realize what it did in giving us a minority presidency, handing rule to a party grounded in mercantilism but still then newly bonding to Reagan dixiecrats gone Republican. Bush was handicapped by his own amalgam of constituent cronies. And the more ineffective his foreign policy, the more likely the scenarios Rice was trained to understand, cold war and the rattle of nuke sabers to threaten children everywhere, has a chance to become the fallback; Bush withdraws from treaties instead of negotiating with the current centers; Putin cancels his commitment to withhold tanks from areas close to Poland, e.g. Also part of the mix are the electronic communications we enjoy. Nations have become as permeable as our radiowave airspace which lets us exchange text and voice fairly ubiquitously; disgruntled, opressed enclaves of people who in former years might have become marxist supporters now can breed radioactive materials sporting malcontents who organize based on newly fluid access to money and ways to meet and get their message broadcast. I think fortunately a lot of people in media, law, communications, are turning to these tools available to us to remake our alternatives. But there is a spiritual challenge in this, which is quite separate from our mercantile accomplishments, though supported by them. And we have a burden of increasing spare time, which helps foster a patina of acceptable dissociation in our societies. There was an interesting discussion at balkinzation quite a while ago about how to provide better oversight for olc, which has the portfolio of thinking outside of the paradigms. But now we have quality of electoral processes to concern us, as well. If folks steal elections, and rule by compartmentalizing some pretty eccentric thinkers, results are going to increase our risk conditions. Part of what I think US has done for a long time is try to preserve old thoughtworks, and in that effort, grown more irrelevant, though definitely pursuing ways to inflame, influence, and game social conflicts here and abroad for political and business profit. I support business incentive, but the social conflict agendas continue to be misdirected. Denying change occurred and repressing people in far away places to slow change here seems to be the way the strategy goes.

    Thought I would add a link to Charly Gittings’ photocopied pages from Justice Stevens’ biography of Mr. Justice Rutledge, where Rutledge discusses habeas; some of the referenced cases make interesting reading in the seeming immutabile energies which comprise our justice system.

  51. Hugh says:

    Just arrived. If it has not been said before, Addington had no justification for shredding the Constitution but even if you accept Goldsmith’s contention then, how does this justify Addington’s continuing to shred the Constitution in the period 2003-2007?

    Just as the war on terror is nowhere near the same level of threat that global warming represents prospectively, it is also nothing on the scale of the threat of the Soviet Union retrospectively.

  52. PetePierce says:

    The U.S. Congress is a major contributor in shredding the constitution:

    1) They are completely passive offering no resistance whatsoever to the Addington master plan of Unitary Exec Shredding Constitution

    2) They haven’t made a burp against the erratic plan of biometric data mining in the clown FBI’s new multibillion dollar initiative (the same FBI who failed twice at $200 million per screwup to revamp their incompetent computer system in the last six years):

    FBI Prepares Vast Database Of Biometrics with as high as 80% Error Rate While Congress and Americans Yawn

  53. Mary says:

    drational – I hope that was a bit tongue in cheek and that I didn’t really personally abuse you over your opinions on Goldsmith? If I did, I apologize. I do get a little nuts over how low the standard for being a “good guy” has dropped.

    I think about each and every day passing in darkness, with psychological and physical experimentation being done, for months that lead to uninterrupted years, all while someone like Goldsmith worries more over making sure that his friends suffer no consequences for what they have already done than over all the minutes, hours, days, weeks, months, and years of uninterrupted abuse that person after person after person will suffer, directly and specifically because he won’t stand up and say, “it’s a lie that the US doesn’t torture – I know better and I know we have innocent people being tortured and it’s wrong and George Bush is a bad man who should stop the abuse now and won’t.”

    It bothers me when I hear a pack of lies like the Padilla press conference, when I see cover ups like the Higazy coerced statements and the el-Masri and Arar affidavits, etc. and then hear some of the architects called heroes or good men.

    • drational says:

      Oh no Mary,
      I was not whining about your principled stand (disagreeing with me). I was just reassessing the wisdom of repeating my “hey look, Goldsmith was not ALL BAD” opinion in light of how I know the visceral reaction this opinion evokes on EW threads.

      I just don’t agree with the premise that because he was a part of the Bush administration, he was “guilty” as an “architect” of evil. His point that the WOT is a central issue for current and future presidents is a function of his political orientation, and as EW and others have pointed out, perhaps a faulty thesis for many reasons. That he has not changed this orientation after witnessing so much abuse of our system of government is surprising, agreed.

      He is a presidential power legal scholar whose professional career is focused upon wartime expansion of power, and this is what the book was about.

      Historically, wartime has been the arena in which presidential power has been extended, for better or worse, beyond the explicit scope of the constitution.

      In my view Addington and Cheney sought presidential power expansion for the sake of Federalist dreams; men like Goldsmith and Yoo who were versed in the legal reasoning of wartime presidential power grab were theoretically useful to this ideology. If you gave them a war, they would find a way to grab power. Yoo bought into the Federalist plans wholeheartedly and helped draft OLC theory that justified absolute presidential power. Goldsmith agreed (and continues to agree with the premise), but had a more nuanced historical appreciation of how successful wartime power expanders undertook the expansion. Goldsmith rejects secret, unilateral power grab (the shit to which I referred @24), in favor of the Lincoln/Roosevelt model of seeking public congressional (and PUBLIC) approval for policies that violate constitutional tradition.

      In the end, of course, the overriding conclusion is that Goldsmith and Yoo were empowered specifically to help violate the constitution. Yoo and many others were completely satisfied with the means by which the Bush Administration did so. Goldsmith objected to the means, as well as to the results. Yoo apparently was not such a good lawyer as to build the legal justifications for torture and wiretapping. Yoo’s bad lawyering was secret from better lawyers until Goldsmith came along, and Goldsmith eviscerated the foundations of (from what I can tell) most of the administration’s WOT policies. So to me, this makes him different from the likes of Yoo, Bybee, Addington, Gonzales, and Cheney, who simply did not care about legality, nor recognize that violation of the constitution is a dangerous place to be.

      In the end, I think Marcy and many others get to the bottom of the big problem- the existence of the war on terror. If this war is ended or doesn’t exist at all, then there is no justification for wartime presidential power expansion, and no reason to dig up men like Goldsmith from the bowels of academia.

      The real question is whether our leaders are more interested in ending this war or continuing it.

      • bmaz says:

        You don’t know jack. Goldsmith, that is. (Heh heh; see, I bet you thought this was going to be a belligerent response. As I said above, I am not into abuse, just “enhanced discussion techniques”). Some random responses and thoughts:

        I just don’t agree with the premise that because he was a part of the Bush administration, he was “guilty” as an “architect” of evil.

        The problem with Goldsmith is not “because he was part of the Bush Administration”; although that fact certainly does not lend him any measure of credibility. No, the problem with Goldsmith is what he personally and affirmatively did and supported within the Bush Administration; he was not an innocent passenger on Bush’s bus, he was an active and culpable driver. Torture, 4th Amendment evisceration, snooping, lying. Mary has delineated the list many times, and quite eloquently.

        He is a presidential power legal scholar whose professional career is focused upon wartime expansion of power, and this is what the book was about.

        No he’s not. Who sold you this leaky crock of dung? Goldsmith, save for the brief time he was at the DOJ-OLC, spent his entire career in the academic environment specializing in internet issues and international law, mostly in an area known as the law of the sea. Goldsmith is no more of a “presidential power legal scholar” than you or I am, save for the fact that he participated in unethically and immorally enabling the commission of war crimes, and then wrote a book to shamelessly capitalize on it, and we did not. Notably, like a large percentage of the people that Bush put in charge of our nation’s justice system, it does not appear that Goldsmith could actually find a trial courtroom if you spotted him a map, compass and GPS device. Undoubtedly, one of the reasons he is pudgy is because he is so full of himself.

        Historically, wartime has been the arena in which presidential power has been extended, for better or worse, beyond the explicit scope of the constitution.

        If you actually go study the history on this issue, you will find that it has invariably found these “extensions of power” to have been for the worse; never the better. In fact some of this country’s most embarrassing moments, such as Japanese internment, have been the result of this extra-constitutional folly. Perhaps the great scholar Goldsmith just never learned this during his intense study of the law of the sea. Secondly, as I described above, and I know this is difficult because of the brainwashing the country has been subjected to, but we are NOT in a “state of war”. There is truly a distinction historically between declared war and what have been commonly known as “police actions” which is an ages old description for use of military force other than in a declared war. The subject has been continuously and increasingly blurred since the advent of the Korean War by Truman, on through Vietnam; but never as disingenuously as by the current Administration. As part and parcel of “reclaiming the power of the executive”, the current Administration has attempted to effectively wipe out any need for a formal declaration of war by Congress. An honest survey of the law over the decades, indeed centuries, does still, however, yield the conclusion that there remain many “war powers” that really do not matriculate to the executive without a formal declaration of war pursuant to Article 1, Section 8. Granted, a few powers have been determined to inure to the executive via the “War Powers Act”, even absent the formal Congressional declaration of war, but that is not supported in the law for the broad range of so called “war powers”. No matter what anybody says, the AUMF is not a formal declaration of war.

        Goldsmith rejects secret, unilateral power grab (the shit to which I referred @24), in favor of the Lincoln/Roosevelt model of seeking public congressional (and PUBLIC) approval for policies that violate constitutional tradition.

        This is a debatable statement, at best. The best that can be said about Goldsmith is that he fairly quietly left the Administration over a wiretapping issue. If Goldsmith was really a man, much less a man of conscience, he would have taken issue with a lot more this Administration was doing, he would have done so a lot sooner when it could have made a difference, and he would have done so a lot more vocally. Instead, he was a Federalist Society acolyte punk who climbed on the bandwagon that was already careening down a disastrous path, went along for the ride, and jumped off when it was in his interest to do so and now wants to rewrite history and rehabilitate his pathetic past. Goldsmith sure did his part to enable an awful lot of “secret, unilateral power grabs”. Soon as the opportunistic chump is done milking this angle for all it’s worth, he can get back to using his brilliant law of the sea background to help Charlie the Tuna and his other big business, conservative, Federalist type friends loosen regulations so they can kill more baby dolphins. Maybe he can write a book about his heroic acts in that vein as well.

        • drational says:

          sorry about confusing Goldsmith’s background with Yoo’s.

          With due respect,
          Seems you have your problems with knowing Jack as well.
          “The best that can be said about Goldsmith is that he fairly quietly left the Administration over a wiretapping issue.”
          He resigned 1 week after withdrawing the Bybee torture memo, to ensure that his decision stuck. His book notes he was not going to discuss the TSP issues until he was subpoenaed as a suspected leaker by Gonzales and Comey testified on May 15, 2007.

          “If you actually go study the history on this issue, you will find that it has invariably found these “extensions of power” to have been for the worse; never the better.”
          Lincoln suspension of Habeas Corpus.
          Roosevelt Destroyers-for-bases.

          I respect your point of view, but if I can use some “enhanced discussion techniques” of my own, both you and Mary would gain some earned righteousness (and probably plenty more ammunition) if you read Goldsmith’s book. Not saying equal in any way, but I know a lot of creationists who because of their special insight (and personal filters) make forceful attack arguments against evolution without ever making a good faith attempt try to understand it.

          It’s hard to cross over to the other side and try to figure out what in the hell these guys were/are thinking. It’s easy to assume they are ALL rotten to the core, but in the end, I think this is too short sighted if we are to build a successful strategy to subvert or marginalize them. They have clearly successfully exploited some base human susceptibilities- think of AUMF, PAA, Mukasey confirmation, and on and on- they are consistently so wrong, yet remain efficient. Goldsmith was clearly a defector, even if absolutely not for the “right” reasons. Was it really “rule of law” or just a wimpy “fat boy” cowering to a bully, as some choose to characterize it.

          If the latter, I’d say progressives, and America, are in big trouble. If the former, then it represents a vulnerability for taking back the country. Do you see why I am so committed to finding common ground with Goldsmith (and perhaps part of the motivation for Jeff to explore the necessity of dealing with AQ)?

          If we are going to depend on the “Fat Fucks” growing tired of being bullied, and cogitate endlessly about how evil “They” all are, then we just end up being angry, ineffective fat fucks ourselves.

          • readerOfTeaLeaves says:

            This is an odd comment, but here goes…

            As a kid, I used to ask my father to read my favorite story over… and over… and over… and over… I don’t know how he stood it! (IIRC, the book’s binding fell to bits.)

            The story: “Indian Two Feet and His Horse“.
            Little Indian boy wants a horse, and his father tells him that he won’t be given one. If he wants a horse, then he has to go catch one. The boy asks, ‘How do I catch a horse?’ His father says, ‘To catch a horse, you must think like a horse...’ (and then goes into all the things that horses do, which the boy then mimics: running to the watering hole for a drink, racing across the plains, etc, etc, until one day a horse (who just happens to need a thorn pulled from his hoof) finds the boy, and all ends well.

            Shorter: I think there’s huge value in trying to sort out how others think. Not that I’m good at it, mind you. But it’s good mental exercise and can widen one’s perspective.
            Problem is… it’s a LOT of work!
            Hat’s to you for taking it on; I learned a lot from your comments.
            Always helpful to read someone’s comments as they try to ‘think like a horse’, so to speak.

            Jeff: The Bush era is ending. It is a grave grave mistake to identify the threat from AQ with the Bush administration’s political manipulation of that threat.
            FWIW, I also thought this was a really key point you made; I hadn’t put it as succinctly in my own thoughts. But I do view AQ as a threat, not simply a figment of the Bu$hCheney madness. But to reiterate from the child’s storybook — Bu$hCo didn’t even try to ‘think about how they think.’ Bu$hCo panicked like a pack of nitwits, and we are now probably on the threshold of discovering that sadistic behaviors got the better of them. Which is taking us all to hell by the day. (And God forbid any of those torture videos occurred, or were stored, in Pakistan!!! Because if they were, it would sure as hell explain how Musharef seems to have such a hold on Bush and Cheney.)

            I agree that AQ is a threat, and agree that the next Pres needs to prepare people for the possibility of very grim events. But not to the exclusion of other issues. If I understand you correctly, you would agree on this point?

            Incredible thread.
            Time consuming!!
            But fascinating.

            Thanks again, EW.

            • Jeff says:

              I agree that AQ is a threat, and agree that the next Pres needs to prepare people for the possibility of very grim events. But not to the exclusion of other issues. If I understand you correctly, you would agree on this point?


  54. Mary says:

    Jeff @ 93 – I agree with much of what you say there, but I’m going to point out that groups intent on destruction for destruction’s sake have also been a part of our history. The Oklahoma City bombing, groups like Anarchists, etc. So we have had to deal with entities which have self preservation aspects as well. As a matter of fact, despite the use of suicide bombers, al-Qaeda itself and its enablers have had fairly strong self preservation aspects in many respects. That’s why the Afghan assault had some possiblities for positive impact, especially impact within African staging areas and other areas where al-Qaeda relies upon strongman/warlord goodwill and support, at least as much on as radicalism, for its well being.

    The problem is that brutal, religiously and politically explosive, culturally inept, occupations are a huge generator of things like suicide bombers and more terrorists. So our responses have done more to increase the danger than to abate it IMO. So while I agree with most of the general and specific statements in your comment, with respect to:

    “but because the adversary was a state with population and territory to protect, a dynamic of deterrence was possible, and real. Not so in the present instance”

    I think there is more of a dynamic of deterrence possible than is credited, but in large part it is deterrence through absence of provocations. Our invasive presence in other countries and support for abuse in those countries generates a whole generation of people who begin to believe that they have no ability to receive Justice from the West and become more and more willing to engage in what seem to be actions not subject to deterrence (like suicide bombings) but which are more susceptible than it might seem. That doesn’t mean in all cases and that they are not huge threats, but it does mean that other groups – including domestic groups – are also willing to engage in mass destruction without having the “territory to protect” aspects of deterence, and yet, we cope.

    IIRC, they have done studies on the martyr/suicide aspects in longstanding controversies and how much they are tied to occupations. So instead of addressing the Gaza issue, we added a much greater recruiting tool with Iraq. Our initial horns locking with Bin Laden was very tied to the Cheney led efforts to leave troops in Saudi Arabia despite our original promises to pull them out (and to the infidel invastin of a Muslim country in the first Gulf War).

    I do still believe we have the rather large deterrents of not being an aggressor/invader/occupier and being an advocate for civil rights for even the citizens in countries where the oppressors are “our friends” like Pakistan and Saudi Arabia. They just haven’t been used and are not nearly as quickly put into place as a bombing campaign or a Bagram detention facility. And they need an element of trust that we have lost to be successful. But without those deterrents, there will always be those, especially (but not exclusively)young unemployed men who see the injustices and are willing to not only die, but to try to extract horrible prices from our population for what they perceive as the transgressions.

    Lots too much on the ramble front – sorry.

    • masaccio says:

      The book I describe @102 argues for invasion of these countries at some point. Naturally, when we do, we’ll have the Civilization Corps to restructure them to be good little consumers.

      • bmaz says:

        I always wonder if the people who write books like this one appears to be, and who conjure up the neocon plans to invade and remake middle eastern countries and lands, have ever really studied the culture of the people there and the thousands of years of history in the region? Crikey, if they are lazy, they don’t even have to trouble themselves with going any further back or deeper than reading TE Lawrence or grabbing some popcorn and watching The Battle of Algiers.

    • Rayne says:

      I do still believe we have the rather large deterrents of not being an aggressor/invader/occupier and being an advocate for civil rights for even the citizens in countries where the oppressors are “our friends” like Pakistan and Saudi Arabia.

      We’re going to have to do some “truth and reconciliation” in our own country if we’re going to make good and proper use of such advocacy, starting with fair dealing in re: Cobell and treaties with the Native American nations, along with addressing the sovereignty question of Hawaii.

      Not to mention the rights of peoples in Washington DC, Puerto Rico, Guam and other territories to democratic self-determination. Freedom’s on the march someplace else.

    • Jeff says:

      1. Re deterrence, I’m just not seeing what you’re suggesting. Obviously, AQ needs a haven of some kind, and it can be either an ungoverned area or under the wing of some ruler. But 9/11 strongly suggests the latter scenario is not much in the way of

  55. Jeff says:

    Most of my comment got eaten, apparently. The two main points were that there is little evidence of deterrence effect; and that there are pretty clear material differences between AQ and the other groups you mention, either becaue of the technology of destruction available or because of the scale, elusiveness, and ambition of the groups.

  56. masaccio says:

    Barnett did graduate work at Harvard, learning “directly from the giants of the field, like the Russian historian, Richard Pipes”, before going to work as a defense consultant, principally with the Navy, teaching at the Naval War College. He claims to have read a lot of books. His bloodless ideas about the realities of war are summarized by this explanation of his support of the invasion of Iraq:

    The reason I so easily fit an argument for the war within my “shrink the Gap” strategy wasn’t that I thought Saddam had to go right then, but that I knew he had to go sometime, and the spring of 2003 was as good a time as any.

    Id. at 155. The book was written well before the adoption of the Ledeen Doctrine by the National Review and Jonah Goldberg. Link.

  57. readerOfTeaLeaves says:

    I’ve spent far too much time reading this thread. Partly b/c the ideas are engaging, but largely b/c of the civility and courtesy with which the ideas have been discussed. Thanks to all.

    It’s clear that some here see a ‘War on Terror’ as an overriding policy concern. I don’t discount it, nor do I dismiss it. But it puts the cart before the horse, and that reveals it as a conceit.

    Questions about the legal parameters of terror policies are a sign of failure. The horse has left the barn already, if that’s the conversation that sucks up your time. One should first ponder, ‘How did things become so profoundly unstable and erratic?’

    Goldsmith doesn’t seem to ever ask that question, so he’s left putting lipstick on a garish, insideous pig. (Although drational makes a good case that he screwed the Bushitas while smearing the lipstick on that pig.)

    Goldsmith gives terrorism top billing, and fails to look deeper at what might be driving it. In doing that, he contributes to the Mythology of Osama, the Caveman that the entire US military could not locate and dislodge. That makes Osama such a vast, powerful figure that he is almost ‘indestructible’. Pardon me for pointing out that if he wears pants, they are presumably put on one leg at a time. Why doesn’t anyone in the Bush administration have the imagination to visualize Osama in pink pajamas and ‘cut him down to human size’? Instead, they blow him up — a sign of their own bad judgement, cowardice, and ignorance of the world. (Idiots!!!!) Yet Goldsmith seems suckered into the Osama as Myth; Terrorists Have Superhuman ExtraSensory Powers crappola. That’s just nuts.

    I agree with EW; terrorism is NOT the overriding crisis of the era, and the tools used to fend off the Myth of Osame only make us weaker.

    A few quick mouse clicks on some world health and econ stats offer an informative perspective on what might be driving terrorism. Unfortunately, none of these stats, nor their implications, ever enter publicly into US policy discussions of terrorism. Unlike Niger yellowcake, they certainly haven’t shown up in any SOTU speeches.

    It’s too bad that while he was making his finely diced legal opinions, Mr Goldsmith was unable to find time to consider the UNDERLYING dynamics of what on earth would prompt any human to strap themselves to dynamite, and intentionally blow themselves up in (what I regard as) a futile, essentially hopeless effort to ‘make a statement’, or produce political change.

    Hasn’t Goldsmith ever wondered, “What are these people trying to achieve?? Why do they strap themselves to dynamite, and isn’t that futile?! How did they come to view their ’sacrifices’ as heroic? (IMHO, long term change does not come from one explosion; it takes a Ghandi, or a M.L. King. Or a Firedoglake.) Why is terrorism an historically recent phenomenona, and what other new developments might shed light on the underlying flaws and weaknesses of terrorism?”

    Without asking THOSE questions — about the roots of terrorism — Goldsmith simply keeps slapping more lipstick on the gross and hideous ‘War on Terror’ pig. Agree with EW @58 that terror is NOT really our biggest threat. Not by a long shot.

    If one takes a quick, snapshot view of demographic and development shifts over the past 30 years, one sees that lifespans are longer, and populations are urbanized. Thirty years is one generation out of approximately 2,000 homo sapiens generations. Wouldn’t it be smart to ask, ‘why now?’ Why, after 1,999 generations without terrorism are people strapping themselves to bombs and flying jets into buildings??

    Rather than finely mince the legalistic bullsh*t, shouldn’t some of these ‘policy makers’ and so-called wonks ask more thoughtful questions about what underlies the terror they’re supposed to be addressing?

    Is ‘Terra’ endless? Inevitable?
    If you continue as the Bushies have, yes.
    If you take a more analytical, probing view then probably no.

    In Africa and Asia, former villagers now reside in vast slums. What are the literacy rates in those slums? Do they have decent water supplies? Do they have sewers? What are their mortality rates? What are the rates of infectious diseases (and AIDS)? What types of work are available to the newly urbanized, many of whom have to adapt to entirely new identities within one or two generations? If they’re still in tribal villages, as in Afghanistan, how do they feed themselves? Are there links between poverty, disease, political corruption, and terrorism? (Answer = ‘yes, they correlate’.)

    You can click through a quick sequence of moving animations (of world health and economic data) here, but this is the stuff that I’d really be interested to hear Goldsmith write about:…..-2005.html

    If Goldsmith had ever watched Hans Roslings swallow a sword in the Ted Talks, perhaps he would have asked more questions about why he was spending his days dealing with terror-related issues, rather than addressing underlying, core issues of which terrorism is one manifestation.…..sible.html
    (same speech on YouTube at: )

    I strongly disagree with [email protected]’s claims that BushCheney are stronger now than they were in 2000. They may appear stronger, and they have more tentacles in the institutions of government; they’re like a plant in late autumn, whose nutrients are weak, and the plant is ‘leggy’ and weak. They lose more legitimacy with almost every news cycle. They’re increasingly desparate, and they’re unstable. Goldsmith was smart to get out when he did.

    But terrorism is NOT the overriding crisis of the times in which we live. Global warming, acid seas, soil depletion… those are ’sleepers’, but more important over time.

    Wm Ockham @95; bulls-eye. Again.

  58. radiofreewill says:

    Jeff – The specter of Terror looms large in the shadow of 911.

    Bush would have US believe that raw, pure Terror is bubbling out of the ground in the Middle East, in general, and specifically in the Nations of his self-declared Axis of Evil – and that We Must fight them inevitably as a matter of Our Destiny.

    Years after 911, Bush still does not seem to have made any effort to understand the actions of Bin Laden in any other context than Amorphous Global Terror.

    What was Bin Laden trying to say?

    He had been saying for years that Arabs are just as intelligent as non-Arabs. For them, he said, they looked at the benefits of adopting Western Consumerism versus staying with the Tribal Ways, and concluded that the best long-term Social survival strategy was to reject Externally-imposed Consumerism in favor of Adapting the Old Ways from within. In this way they wouldn’t lose their Identity as Arabs, while they were in the process of re-claiming their own Sovereignity over their own National Resources.

    But the influence of Western Money was pernicious, and over time had built a strong foothold within many of the ruling Arab families, who were all too willing in the beginning to exchange control of the Oil for Big Payouts.

    Before you knew it, our satellites were blasting “Baywatch” and all the rest of our cable teevee shows into parts of the Middle East that consider the sight of a woman’s ankle in public to be pornography within the context of their culture.

    Sex crimes and acts of violence rose to levels never seen before in these normally peaceful Tribal groupings of related families, and an anti-America/anti-Israel backlash formed against the ‘invasion’ of their previously peaceful communities by the Consumerism of the Almighty Dollar.

    The milieu that produced Bin Laden had a long-standing cross-Tribal agreement to kick-out Invaders – and they literally saw Consumerism as a Foreign Invader that was laying seige to their purposely chosen way of Life.

    Bin Laden picked the Symbolism of the World Trade Center to emphasize that, as far as he was concerned, the West had strayed from the Righteous Path and fallen into worshipping materiality, Mammon, Money. In the name of neo-Colonialism, the West had swept in to the Middle East and claimed Control of the Oil resources, and pushed the Arabs away as uncivilized brutes.

    So, in ‘93, with the first bombing of the World Trade Center, Bin Laden didn’t apparently get the message across clearly enough, and backed off and put together a much bigger plan – one that couldn’t be missed.

    Then, in 2001, he finally finished the job and knocked down the Twin Towers to definitively say: “Stop Stealing Our Oil and Leave us Alone.”

    Bush didn’t take the time to ’see’ an Oppressed People having Their Own Oil stolen from them, and Our Culture’s Consumerism forced on Them to the detriment of Their Culture.

    So, that’s a long winded way of saying – The Ambiguous Terror that Bush makes out to be bigger than Godzilla, is Really nothing more than Other People, disrespected to the point of voicelessness, finally saying, “No More!”

    If we give them back their Land, Resources and Respect, then “The Terror Bush Sees Everywhere” will melt away.

    A Democratic President doesn’t need Goldsmith’s Power Tools of the UE to solve this problem – He or she only needs to ’see’ clearly that it’s the GOP Spin that the ‘Threat’ is both real and irrational.

    A diplomatic President, empowering good law enforcement and make-sense intelligence sharing is more than a match for the hot-heads in Al Qaeda, and at the same time ensures that We enjoy the full benefit of Our Civil Rights.

    Bush’s Fear has magnified the Threat 10x. A decent Statesman could manage this challenge without Bush’s Chicken-Little histrionics and absurdities.

  59. Smgumby says:

    Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.

    Luckily, the Presidents lawyers dusted off the old “Can’t keep yer shorts clean ’cause yer too scared” clause that our founding fathers put into the Constitution.

    They understood, you see, that sometimes the boogey-man is so scary you need an Iron Curtain to hide behind.

    • Rayne says:

      Your comment, along with Jeff’s comment that follows, brings to mind this bit:

      An anecdote that Benjamin Rush, the Philadelphia physician and signer of the Declaration of Independence, liked to tell in his old age makes the point memorably. On July 4, 1776, just after the Continental Congress had finished making its revisions of the Declaration and sent it off to the printer for publication, Rush overheard a conversation between Benjamin Harrison of Virginia and Elbridge Gerry of Massachusetts: “I shall have a great advantage over you, Mr. Gerry,” said Harrison, “when we are all hung for what we are doing. From the size and weight of my body I shall die in a few minutes, but from the lightness of your body you will dance in the air an hour or two before you are dead.” Rush recalled the comment “procured a transient smile, but it was soon succeeded by the solemnity with which the whole business was conducted.”
      [Founding Brothers: The Revolutionary Generation, by J. Ellis]

      The threat to colonists was imminent; they signed their death warrants when they signed the Declaration of Independence. But they stayed and defended their ground, did not conflate their demand for independence into a preemptive effort offshore, in spite of real and genuine fears for their persons and families that the majority of us in this thread and this nation will never entertain.

      We’ve somehow lost sight of the real threats to our independence, lost sight of the fact that our founders were willing to forfeit their lives for the democracy we’ve known. Now we are a bunch of sniveling cowards who will sign away that democracy to keep away bogeymen — bogeymen that we created through our desire for empire through colonization. We’ve become the very thing our founding fathers fought against.

      I am far less afraid of Osama bin Laden than the damage that an ignorant and out-of-control hegemonic power can do to its subjects and the world. I am far more afraid of blindness to the fury and desperation it takes to sign away one’s life, or strap on a chestful of explosives; it’s the blindness that’s the problem, not the fury or desperation. We cannot stop a generation of Osamas we’ve created if we cannot see what drives them and take action against the root cause.

  60. Jeff says:

    Look, a lot of the responses are, I think, evading a straightforward set of facts, especially the comments that point to all the things that we’ve done that have caused AQ to target us and all the things we could be doing (and the Bush administration is failing to do) medium- and longer-term to address the threat from AQ, the vast majority of which I agree with. But none of that changes the fact that the threat from AQ is immediate and it is dire. People die in spectacular attacks in the short-term. Our best estimate is that AQ’s intent to attack the U.S. is undiminished; it has regenerated key elements of its capabilities to attack the U.S. (safe haven in less-governed areas of Pakistan, reconstituted top lieutenants and top leadership); it’s gotten a huge boon in all sorts of ways from the Iraq war, in terms of winning hearts and minds, recruiting and in effect training the next generation of jihadis prepared to attack us; AQ is probably still trying to acquire biological, chemical and nuclear weapons, and would not hesitate to use them. And of course we know that AQ is capable of pulling off a spectacular mass-casualty attack on the U.S.

    In other words, the threat is real (real in a way that, for instance, the threat of AQ recreating a caliphate stretching over half the world is not), and however smartly we shift strategic posture once the Bush era is over, it’s not just going to go away. Furthermore, just perform the thought experiment of what will happen if there is another attack of equal or greater deadliness to 9/11 with a Democratic president in office.

    That all being said, no matter how much the next president wisely jettisons the political manipulation of 9/11 and the GWoT the Bush administration has undertaken, the very real threat of an attack on the U.S. remains, the next administration knows they will be held uniquely accountable for not having stopped it, and they will be very (not exclusively, but very) focused on preventing the next attack and inclined to act very aggressively to stop it.

    Most of the responses to what I’ve said are perfectly consistent with this set of facts, and as I said I agree with much of it. But none of it serves to deny those facts either.

  61. TheraP says:

    I’ve read and been fascinated and challenged by this whole discussion, which I agree with in many respects – but no need to go over well-worn territory. Just a few thoughts:

    1. Constitution, Rule of Law, Empathy, Conscience, ability to Admit Mistakes (and repair wrongs), Delay of Gratification (including gratification of anger or revenge), and Good Judgment: “stop, look and listen before you cross the street.” That pretty much sums up a set of principles and character traits which seem exemplified by the discussion here and the means/ends being urged versus the criminal behavior which is the basis of what’s being discussed.

    2. If you’re in a car on a highway, it’s always possible there could be drunk drivers or suicidal/homicidal drivers. But if your driving style is to be paranoid and totally obsessed with that possibility, you won’t be the best driver or the safest driver. Indeed, averting an accident is more likely if you’re not taking chances or ego-involved -thus risking your safety or the safety of others – and your mind is relaxed… zenlike.

    3. Best thing a leader can do IMHO, now or in the future, is to lead in terms of facing reality, being calm, and pursuing ideals of #1 while urging the methods of #2.

    This may sound simplistic, but I’ve just tried to boil down what’s been discussed here along with my own convictions.

    • Rayne says:

      I think we’re done here. You obviously believe that Goldsmith is right to be chickenshit (or pretend to be) like the rest of the administration.

      And I’m going to maintain that we lost as soon as we forfeited any rights to ease any fear, imagined or otherwise, and Goldsmith willing aided and abetted that forfeiture.

      • Jeff says:

        Why you think the identification of a real threat is equivalent to being chickenshit is beyond me.

        It’s unclear to me whether you don’t think the threat of an attack by AQ is real or you don’t think it would be that consequential. I actually happen to think that one thing the next president should do is to communicate to the country just how real and difficult to prevent the threat of the next attack is, precisely so as not to play on people’s fear but rather prepare them for the possibility of such an attack so that if one were to happen, some of the worse consequences of it – such as the massive maltreatment of politically vulnerable minorities – can be avoided.

        I submit that you have been so blinded by the Bush administration’s use of 9/11 for the politics of fear that you are unable to contemplate other, more reality-based ways that the very real threat of attack from AQ might be used. To encourage, rather than frighten, the country, in short. And I would suggest to you that in the absence of such encouragement, it becomes more likely that, in the event of another attack, things will get way way worse than they have been under Bush.

        • bmaz says:

          I cannot speak for Rayne, but I simply don’t find al-Qaida to be that great of an existential threat to the existence and sanctity of our country. Forget global warming, freaking lack of common and necessary maintenance of this nation’s roads, bridges and dams is a greater threat to our health, safety and commerce than AQ. Result in far more deaths as well. AQ is something we should be aware of and pay attention to; not something we should live in fear of and trash our fundamentals over. Of the things in life that really concern me, AQ is pretty far down the list.

          • Jeff says:

            Let’s leave aside the idea that AQ is an existential threat (although I would have thought that given 1)the view of the right that prevails here, and 2)the political power of the right, many people here would see AQ as a kind of bankshot existential threat, via the provocation of a mis- and overreaction through an attack).

            Are you not that worried about AQ because you don’t think an attack is likely, or because you are not concerned about the consequences of an attack if there is one?

            Needless to say, I don’t think we should “live in fear of and trash our fundamentals over” a prospective attack. I also don’t think being more concerned than you are about an attack is equivalent to doing so.

            • bmaz says:

              Are you not that worried about AQ because you don’t think an attack is likely, or because you are not concerned about the consequences of an attack if there is one?

              Neither really. I am not so concerned about AQ because I have been around long enough to come to the conclusion that individual human life is somewhat of a random enterprise. There are any number of acts and actors that may result in my untimely demise at any given time. The likelihood that AQ will be the one that does the deed is pretty remote, and far, far down the list of potentials.

        • Rayne says:

          Jeff, you have no clue who I am in real life. I worked for a major chemical company at the time of 9/11; I had to think about all the possible threats we faced if another attack should follow on the heels of 9/11, because that was my job. I had responsibility for physical and information security.

          What happened in advance of Y2K was a hardening of infrastructure within the corporation for which I worked, based on months of strategy and testing; what happened post-9/11 was another audit of the same hardened infrastructure, and additional investments to address physical short-comings not addressed by Y2K prep, along with audits for political risks not addressed pre-Y2K. Business didn’t stop while this happened; the real change was to management’s awareness, increasing risk-reduction.

          That’s EXACTLY what I expected this country to do as a whole, take the same steps that a Fortune 100 corporation would take to protect its business continuity. What this administration has done is irrational, actually increasing risks exponentially rather than reducing them. And if this nation has one business, it is the perpetuation of its open and free society. That business came to an end with this administration, and it happened before 9/11 as evidenced by Dick Cheney’s private meetings with energy companies immediately following inauguration, in which Cheney & Co. divvied up the spoils of Iraq.

          AQ should be nothing more than a policing problem; instead, it’s become a bogeyman for fascists to use against us. Your blindness obscures that fact; your blindness gives evidence their fearmongering works.

  62. radiofreewill says:

    Jeff – Kudos to you for making a courageous stand for your positions!

    I don’t think I disagree with your points enough to say we can’t find common ground, however – as with all things involving Bush – I do think we have to bring-in the question of Proportionality.

    You see Al Qaeda as the over-arching threat to Our Country, which is pretty much the Bush position – and, the bigger the Al Qaeda Boogeyman, the way we see it, the more Power Bush gets to Grab.

    I, and many others, see Bush’s Reckless shredding of the Constitution in Response to Al Qaeda as the greatest threat to Our well-being as a Nation.

    Bin Laden knew just how to ‘get’ Bush – he poked him with a stick, 911, and went underground.

    Ever since then, Bush the Bully has dumped $2.2 Trillion into pushing the sand around, killing, imprisioning and torturing innocent civilians, and Weakening US in every measurable strategic category.

    Bush is doing Bin Laden’s work for him by Destroying the Very Fabric of Our Experience of each other in America. In order to ‘get’ Bin Laden, Bush has resorted to Treating US with Suspicion, while operating from a Cloaked position of Secrecy. That kind of insidious Mistrust will rot a Society from the inside like Cancer.

    Instead of the Big Bad Boogeyman, the more apt Proportionality here is that Al Qaeda is Representative of a group of People with Grievances for which they have been Unable to get relief by normal means. We can dispute their methods, but it’s wrong to make the Bush Assumption that they are Hari-Kari/Kamakazee/Suicide Loving Maniacs who Want Only to Die killing Americans and Get 72 Virgins.

    They are People with Grievances, not the Black Plague. They just want to Live Free, like US, but in their own way.

    The common factor to All the Misperception is Bush – He’s a Freaked Out, small and Overwhelmed President with very poor, at best, skills for dealing effectively with Conflict. He ’sees’ Al Qaeda everywhere – except from the point of view of their own shoes.

    The Problem is Bush. The Crisis is Bush. The fix is the Removal of Bush, and the installation of a Sane, Normal Person with Real Character and Leadership Skills.

    Jeff, Bush is what stands between US and Common Ground.

    • Jeff says:

      You see Al Qaeda as the over-arching threat to Our Country, which is pretty much the Bush position – and, the bigger the Al Qaeda Boogeyman, the way we see it, the more Power Bush gets to Grab.

      I, and many others, see Bush’s Reckless shredding of the Constitution in Response to Al Qaeda as the greatest threat to Our well-being as a Nation.

      Um, no. They are both major threats. But take away Bush – as will happen in about a year, and the threat from Al Qaeda remains. Bush has done much to strengthen Al Qaeda, but removing Bush will not make Al Qaeda weaker just like that; removing Bush will not lessen AQ’s desire to attack the United States; and removing Bush will not mean that AQ suddenly ceases seeking weapons of mass destruction with which to attack the U.S. The threat from AQ is not a figment of Bush’s imagination – just ask the last Clinton administration.

      The Bush era is ending. It is a grave grave mistake to identify the threat from AQ with the Bush administration’s political manipulation of that threat.

  63. bmaz says:

    Law of the Sea Goldsmith did indeed resign. If he really cared about the principles involved, he would have done far more to show it and help the country understand what was going on. Instead, he trotted off to a designated endowed chair at Harvard for the higher salary and casual academic life on the tab of wingnut welfare he was used to. Very heroic. Oh, and regarding Goldsmith not speaking “until he was subpoenaed”, if you take a look, I think you will find that “principled silence” was just as much, if not far more so, related to the release date of his book. Very heroic.

    Were your examples of extra-constitutional power extension meant to support your point or mine? If you are citing those as points of pride, that is messed up.

    drat, I respect your arguments, and I truly enjoy the discussion. Please don’t mistake my loathing of Goldsmith and what he stands for as anything to do with you; that is not the case. Keep up the passion.

  64. emptywheel says:

    Boy, I thought I was done here, but apparently you guys are still chatting.

    I think Jeff and bmaz’ debate raises a real point of discussion here. Jeff, you keep talking about WMD–and it is true there are reports that AQ wants WMD. But there is at least as much evidence that they want to strike us as they already have, with weapons of opportunity, hitting us in our own vulnerable spots with the help of low-tech and easily accessibly force multipliers.

    When 9/11 happened, I thought the biggest risk was NOT another plane strike, but rather a simultaneous strike on our infrastructure. Had they either immobilized the Toobz (reasonably easy to do with a well-executed virus) or taken out our electrical system (akin to the accidental outage that took out power in 5 states), it would have been far more devastating because it would have magnified the terror and would have made the response even more difficult. Or imagine if they had simultaneously taken out the Hoover dam, which at the time was incredibly vulnerable, and if ever successfully struck, would be devastating for the SW and would cause a large number of deaths bc of teh unsustainability of life in the SW without power. Or how about taking out the three bridges over the Mississippi that carry a huge portion of our nation’s food supplies on a daily basis, the bottlenecks in our East-West traffic.

    Now, the response to these kinds of vulnerabilities SHOULD be to strengthen our infrastructure. But that hasn’t happened, bc we’ve had a “terror presidency.” It’s a pity, too, bc if they had happened, then that power outage wouldn’t have happened, that bridge wouldn’t have gone out in MN, and frankly, our economy would be a lot healthier, both bc of govt investment and bc it would facilitate trade. In other words, a reasonable response does not operate from obsession about AQ, but instead looks at overall welfare and acts, proportionally, in response.

    It’s the same principle as human health. The best way to stay healthy is to maintain overall health and avoid big risks. But instead we’ve approached terror the same we our failed medical system approaches health, with massive assaults on an already mature attack.

    It’s my belief that, so long as people maintain this belief in a terror presidency, we’ll continue that ineffective way of combating terror, and at the same time increase our vulnerability to other attacks.

  65. Jeff says:

    Now, the response to these kinds of vulnerabilities SHOULD be to strengthen our infrastructure. But that hasn’t happened, bc we’ve had a “terror presidency.”

    This gets to one of the hearts of the argument. I think (and Goldsmith thinks) that the terror presidency is an enduring challenge with a set of temptations and pitfalls that can be responded to in different ways, and the Bush administration essentially aggravated all of the pitfalls, but it need not be that way. You identify the terror presidency with Bush’s own choices and responses to that challenge.

    I think my position gains strength from the fact that virtually everyone here treats the threat itself as basically a creation of the Bush administration. Taking the threat seriously, in other words, is the terror presidency – abut doing so can be done in all kinds of ways differently from the Bush administration.

  66. radiofreewill says:

    AQ did not Intend to Strike Terror into America – that’s Bush’s Spin.

    AQ sent a Message: “Leave us Alone.”

    They aren’t proponents of Terror, they just want Respect.

  67. emptywheel says:


    I don’t know how many times I have to say Clinton dealt with this better to have you see that I don’t think the THREAT is a creation of the Bush Administration. But we’re discussing Jack Goldsmith here, not Bill or Hillary or anyone else. And Jack Goldsmith describes terror in such a way that it legitimizes a bunch of responses wrt executive power that largely rules out a more holistic response. There is a another option–one that accepts that terrorism is one threat among many but that any response that attacks terrorism in isolation from those other threats causes more harm than good. That’s what I’m advocating, which is NEVER to even accept the term terror presidency, and in so doing, position the country to respond to ALL threats more appropriately.

    As I’ve said over and over, kudos to Jack Goldsmith for recognizing that this singular focus on terrorism can cause bad things to happen in the executive branch. It’s just a damn shame he can’t go the rest of the way and recognize that the singular focus on terrorism us just as much a problem as the lack of transparency he, rightly, argues against.

    A President, when elected, is President over all aspects of the country. ANY approach that focuses primarily on something defined as national security (particularly defined in an outdated 20th century version of national security) is going to lead to abuses, whether those are transparent or not. That’s just as important a lesson of Schlesinger as anything else Goldsmith recycles from him, but that’s not a lesson Goldsmith appears to have learned.

  68. Jeff says:

    And Jack Goldsmith describes terror in such a way that it legitimizes a bunch of responses wrt executive power that largely rules out a more holistic response.

    I flatly disagree, for the simple reason that no more holistic

  69. Jeff says:

    153 should have said:

    I flatly disagree, for the simple reason that no more holistic response will do away with the distinctive, even singular character of the threat of another attack possibly with wmd of one kind or another, at least in the time being.

    • emptywheel says:

      Okay, so THAT’S where you and I disagree, and you disagree with the Clinton approach, buy into the Goldsmith approach (as far as that goes, which is admittedly not as far as the Addington approach).

      Clinton fought terrorism (more effectively than this president) and also made the country stronger. That is not to say he didn’t seek legal methods to go after terrorism. But he did it in conjunction with not entirely successful efforts to put the US and the Middle East on safer ground (an effort that was only partly focused on terror) and an ill-considered attempt to put the US economy on sounder footing; both failures, IMO, but failures that, in their logical consistency with each other were at least better than Bush’s single minded focus. Given what we’ve learned about the failures of free trade and the dangers of climate change, I think there is a logical legacy following Clinton in which efforts to combat terror are a contiguous part of a whole portfolio of programs that ALSO combat cyber-threats (what Clarke believes to be the new rising threat, one he left his fight on terrorism for), climate change, our failing economy, and resource scarcity. If you choose to focus exclusively on terrorism, you end up–regardless of whether you’ve heed Goldsmith’s warnings about transparency–in the areas of executive overreach that Schlesinger warned against. And you also end up pursuing solutions that exacerbate other problems and end up being less than effective at combating terrorism.

      No. A holistic approach won’t eliminate the threat of terrorism. But neither will any approach favored by someone calling himself a terror president. And the former, at least, wont’ consider to exacerbate the problem and our vulnerabilities.

      • Jeff says:

        Oh, I didn’t say anything about anyone calling themselves a terror president. The terror presidency as Goldsmith uses it is an inescapable problem and his thumb-term for an explanation for why there is a standing temptation on the part of the executive branch to run roughshod over the rule of law. I’m not quite sure what the point of your second paragraph is, except to say that the threat of another attack, singular though it may be, should not be decontextualized from everything else in the world. I agree! As for “executive overreach,” you need to be more specific if I’m going to be able to see what the problem you’re identifying is. I take it that key in this area is to start by seeing executive power as a means to accomplishing other ends, not as a quasi-theological end in its own right, which is what it has been with Team Cheney. Is the MCA or the PAA an example of “executive overreach”? (To be clear, I’ve got problems with them, but they’re different from the problems I’ve got with the Bush administration’s first and second versions of the TSP.) Yes, crises like post-9/11 lead to the accumulation of power in the hands of the executive branch, and that is potentially worrisome. But I take it that the executive branch is going to tend to need robust capabilities in those situations, and the trick is how to make that work with our freedom.

        Similarly, I need to hear something concrete about how the areas of executive overreach you’re talking about – and I’m not interested in the Bush administration here, I’m interested in the alternatives – end up being less effective at combatting terrorism and exacerbating other problems. If it’s along the lines of, “Even if we grant – which is questionable – the tactical value in some circumstance of a policy of torture, it is a strategic disaster,” I agree! And that’s grist for my mill as much as yours.

  70. JohnLopresti says:

    I think the kultcha conflicts as political ploy tool in Republican armarium will remain postelectorally as that innately less than half of the voting public redefines its outlook. I have concerns about policies like the facile work of Goldsmith at olc will continue to have impact suppressing diversity in our social fabric. The thread interchange has clarified a lot of specifics, and an embarrassing footnote for me; so, I appreciate the tenor of the conversations. It looks to me like the Bush solution to the incident in NY2001 magnified both intrinsic problems in our corporationlike modern bureaucracy and our engagement in foreign policy. I especially liked one visitor’s cite from an Ellis tome as germane in a visionary and academic sense; that professor did a nice NPR interview a few years ago which I heard excerpted; the whole unitaryExecutive barrier to dealing with the current presidency was the veiled topic of that audio clip; he is a good historian at MtHolyoke.
    Also Charmin, was the reminder from bmaz about the law of the sea; its perspective speaks volumes about the technique of reasoning Goldsmith favors. I saw a balanced article about a skipper in the animal preservation conflicts which was set in an Antarctic standoff chronicled by a major newspaper, which I have not found easily, but maybe this link to the website of one of the marginal entities involved in the controversy will serve as a breath of fresh, ocean air to gloss that tale of a fringe kind of behavior, much like terrorism, but on the highSeas. Their mastHead graphic may be the best part of their webPlace.
    After the dodging in Geneva with the Secretary of State, Rice’s counselor Bellinger recently made a visit in the UK to hype the need for revamping the Geneva accords on brutality between belligerents, a bit of rhetoric which reminded me of some of Goldsmith’s parsed pirateLaw, yet, an interesting read at that hyperlinked academic webLocation.

  71. readerOfTeaLeaves says:

    Weird… the smiley-face I typed after ‘okay’ didn’t post.
    It was intended as ‘okayyyy’ *g*

  72. emptywheel says:


    I disagree with your reading of the connotation of terror presidency as Goldsmith uses it. Goldsmith makes quite clear that he believes there IS such a thing as a terror presidency prior to any problems with the treatment of it. For example:

    For generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so.

    He’s not describing this as a problem, he’s making on observation based on the premise, first of all, that there is such a thing as the terror presidency and that Bush is the first terror presidency (he says so explicitly on 213) and that all this obsessiveness is a natural and in fact desirable characteristic for the terror presidency.

    Now, first of all, I would argue that anyone who believes Bush is the first “terror presidency” betrays his own ignorance of 1) Clinton’s acknowledgment of the problem (Clinton certainly had the recognition of the problem as Goldsmith describes it), and 2) Clinton’s real and–as compared to Bush’s attempts–more mature attempts to prevent the next attack.

    So then what’s the difference between Clinton–also a president faced with terrorist attacks–and Bush?

    One answer might be the reading of it as a crisis (Goldsmith also calls it a “permanent emergency” 216). Fine–you use that language and Goldsmith does. But you both use it so vaguely as to be dangerous. Was the crisis just the immediate aftermath of 9/11? Are we still in that crisis?

    I don’t know the answer to that–like I said, I think both you and Goldsmith use it vaguely and I prefer to avoid the term at all because it claims a rupture with the past that exists only in Bush’s misunderstanding of recent history. Therein lies one of the problems for me. If there was a crisis, it should have been when Tenet and Clarke were running around with their hair on fire. But it wasn’t, not for this administration. It was sometime after, and was used as a carte blanche seemingly indefinitely thereafter (which is part of the reason why all Goldsmith’s agonized attempts to compare Bush with Roosevelt and Lincoln fail; Bush already missed his opportunity to be Roosevelt or Lincoln by failing to exercise the same foresight Clinton had). Which, as I’ve said, tends to suggest the view of this as a crisis derives more from Bush’s own failures than anything singular about terrorism, or even 9/11.

    Goldsmith’s use of the “terror presidency” also gives him carte blanche for utter lack of judgment. He says (190) that if the hijackers had been arrested pre-9/11, they would have appeared to be malcontents, and therefore it’s okay if they arrest incompetent poor kids caught in a frame-up in Miami–Goldsmith is suggesting that a counter-terrorist professional can’t tell the difference between Mohammed Atta and the Miami 7. That’s, of course, bullshit, and bullshit that attempts to obscure both the real danger signs that Bush and the security establishment ignored prior to 9/11 (even in someone like Moussaoui), but also the features that made Atta much more dangerous (such as financing and professionalism), which are precisely the features that a rational president who lives in the age of terror (as opposed to “terror presidency”) would key on, in combating terror. This is one of the areas where I object to the term the most, because it uses this cute moniker, “terror presidency” as an excuse for rank incompetence that is precisely the kind of thing that leaves us vulnerable going forward.

    Finally, Goldsmith’s “terror presidency” is something that he argues is qualitatively different from the more existential crises facing Lincoln and Roosevelt. I totally disagree, and that’s another place where I argue Goldsmith’s use of the terms is very dangerous. After spending an entire book pointing to what Goldsmith sees as legitimate precursors to Bush’s overreaching decisions in previous wars (things like enemy combatants), he then claims this is somehow different, giving him or his pals the ability to go even further beyond what Roosevelt and Lincoln did, when this “crisis” (if you’re going to call it that) doesn’t match the danger of the two prior crises, and definitely wouldn’t if we took a holistic approach that made our country less vulnerable to any number of attacks.

  73. Jeff says:

    One answer might be the reading of it as a crisis (Goldsmith also calls it a “permanent emergency” 216). Fine–you use that language and Goldsmith does. But you both use it so vaguely as to be dangerous. Was the crisis just the immediate aftermath of 9/11? Are we still in that crisis?

    I don’t know the answer to that–like I said, I think both you and Goldsmith use it vaguely and I prefer to avoid the term at all because it claims a rupture with the past that exists only in Bush’s misunderstanding of recent history.

    My thinking on this has been pretty decisively shaped by James E. Baker’s book – Baker who was the NSC lawyer under Clinton. Here’s what he says on p. 10:

    September 11, 2001, was not the beginning of the conflict, nor was it the entirety of the conflict. It was a defining moment, but a moment nonetheless in an ongoing and open-ended conflict. Churchill might have called it the end of the beginning. On 9/11, the jihadists realized that the grand attack works, at least on a tactical level. For our part, we realized that the jihadists have the wherewithal to attack America and do so in sophisticated fashion. On 9/11, the threat of a WMD attack in the United States morphed from a tabletop security scenario to a daily security reality.

    You say:

    Goldsmith’s “terror presidency” is something that he argues is qualitatively different from the more existential crises facing Lincoln and Roosevelt.

    Does he argue that, in the sense that it is worse? It seemed like in general his use of those two is to say that in a decisive respect, Bush has gone further in terms of executive overreach – unilateral imperial power and atttendant theory – and completely unnecessarily (as well as counterproductively). I took him to uphold Roosevelt in particular as an alternative model to Bush, facing a crisis at least equally bad.

    My own criticisms of Goldsmith are, mainly, he has not completed the evolution away from the terrible disrespect for the laws domestic and international that have grown up in the last sixty-odd years to regulate the conduct of war and the conduct of the executive; his inability to complete the criticism of torture, and a few other things along those lines.

    • emptywheel says:

      Absolutely agree with you about his disrespect for law.

      I think Baker agrees with my argument. Goldsmith’s reading requires that 9/11 be a rupture. Baker’s description of it as the “end of the beginning” would put Clinton in the unsuccessful role of a Roosevelt who foresaw the danger but did not, as ROosevelt did, use his executive power to make sure he was adequately prepared for it. It does not, though, make Bush teh first president dealing with terror, and it does not disconnect 9/11 from all the AQ events leading up to, particularly not teh earlier attempt on WTC.

      As to whether this is different, I take Goldsmith’s claim that:

      The presidency in the age of terrorism–the Terror Presidency–suffers from many of the vices of Schlesinger’s Imperial Presidency. But these vices appear in new forms, and the Terror Presidency also faces new challenges to its twin and sometimes incompatible obligations to keep us safe and maintain our trust.

      To suggest a qualitative difference. I might explain all this away as technological issues, but then that doesn’t get to you to “new” challenges of balancing safety and trust (no mention of liberty). He also gives a list of differences on page 214, some of which (such as the claim that the existential threats in this conflict are less obvious but analogous to his prior crises, Roosevelt and Lincoln) I strongly disagree with.

      • Jeff says:

        think Baker agrees with my argument. Goldsmith’s reading requires that 9/11 be a rupture. Baker’s description of it as the “end of the beginning” would put Clinton in the unsuccessful role of a Roosevelt who foresaw the danger but did not, as ROosevelt did, use his executive power to make sure he was adequately prepared for it.

        Turning point is good enough for me, and I believe for Goldsmith; no requirement of rupture. And look at the last part of the quotation; I think it undermines the second sentence here.

        To suggest a qualitative difference.

        I note in passing that Goldsmith refers to the vices of the terror presidency, and also new challenges. But the main point is that Goldsmith is talking about new in the sense of distinctive, not in the sense of worse – and I agree. For instance, the fact that you are dealing with non-state actors, and people fighting who are as such visually indistinguishable from civilians is a new challenge to detention practices conventionally associated with armed conflict. Or to take another of Goldsmith’s big themes, there are new conditions including new legal constraints/regulations bearing on the conduct of war – Goldsmith, as I said, seems still fairly ambivalent about that, whereas he had previously been downright hostile, and while I think on the whole that is a very good thing. But in any case, there is some novelty in that regard. (Same for the use of the intel instrument, of course.) (And I do think Goldsmith is evolving further, basing that sense on his testimony before the SJC this fall, which seemed to go further in affirming legal regulation of war and intel as a good thing more clearly than in the book.)

        But so as to your comment that prompted this aspect of the discussion, I’m not seeing where he thinks the challenge of dealing with AQ is worse than the challenges that Lincoln or Roosevelt faced, just bad enough and distinctive.

  74. Mary says:

    rotl @ 129 – I strongly disagree with [email protected]’s claims that BushCheney are stronger now than they were in 2000. They may appear stronger, and they have more tentacles in the institutions of government; they’re like a plant in late autumn, whose nutrients are weak, and the plant is ‘leggy’ and weak.

    Well, my statement was the office of the Presidency, not so much BushCheney (who will be gone in a year) and I think it is pretty indisputable that the office of the President is wildly over-powered by what has come to pass. The powers Congress has handed over in the MCA and is about to hand over in the new warrantless wiretapping legislation are leaps and bounds beyond what was. The concept that the President can have innocent people disappeared and people in general, innocent or “guilty” tortured on whim with no consequences to the the President or his torturers – – that’s power never before claimed and held, but which is obviously in existence right now and which Congress and the Judiciary have agreed to look away from. The el-Masri lawsuit is precedent now and it stands for the right of the President to kidnap and torture with no consequences.

    I listened today to Turley laying out those and more issues and areas where the power grab for the Executive has been successful and unprecedented. Here’s Jack Balkin to the same effect:…..utive.html

    Conversely if the next President is a Democrat, he or she may make symbolic gestures toward a greater balance between the President and Congress, and will probably clean house at the Justice Department, but it is unlikely that the next President will actually cede most of the new powers that the Bush Administration grabbed for itself. Rather, the next Administration will likely offer a less pugnacious and bellicose tone while continuing many of the same policies, often through different legal methods.

    To say that you conceptually think people don’t like Bush and Cheney all that much anymore is fine for what it means – but what that does NOT mean is that torture is stopping, warrantless wiretapping is stopping, disappearing people is stopping, detentions of thousands and thousands is stopping, GITMO is closing and shipments to it are stopping (it’s building new wings and Hillary will be happy to fill them IMO), men and women who engaged directly in the soliciation, execution and cover up of torture and torture deaths walk free, or if they were in the military perhaps recieved a few days of green zone detention (like the sleeping bag torture killing), courts have ceded their ability to review Executive illegality and criminality based on any lie filled invocation of state secrets that comes their way including ceding their ability to review the torture/kidnap of a man who interantional and national press have reported on for a long time as being a torture kidnap victim of the US and even though that same press has reported that the Angela Merkel’s claims that Rice acknowledged the US kidnap torture role – – – but courts are closed irrevocably to that man because a) the DOJ has become a wing that can lie at will and with no consequences and b) the courts have ceded to the Executive the power to escape review and consequences for torture.

    Those aren’t little items and they stand forever as precedent now. For those who thought, for example, that the Quirin case was a passing anomaly – look at what it has spawned now. Don’t think that what has been happening will spawn less. Evil spawns very efficiently. We also now have a court system that is even accepting of torture and coercion based evidence, as long as the DOJ will certify “nu uh” (as it did in Salah) or lie away about “lack of knowledge” of the torture as it did in the Padilla arrest warrant, or cobble together specious claims so that the the torture and the effect on the human being tortured are ignored by the court as not being direct items of evidence.

    What happened with Padilla is shocking. More shocking is that it is now precedent. And the judicial tacit approval of disappearing a US citizen and torturing them for days, months, years – – as long as it is Executive Branch directed torture, that’s not something that evaporates with someone’s newfound decision that they don’t like Bush or that his policies were bad.

    Jeff – I don’t buy your technology differentiation, because the devastation of what could be generated (and what has been attempted) via domestic terrorists with access to our huge resources of weapons and nuclear power plants belies that Bin Laden in the Pashtun areas has more access to more and better technology than the home growns here. If we had ever played the game correctly, Bin Laden would have had a very difficult time finding a home base from which to operate. If you read Looming Tower and other reviews of his “travels” and travails, it’s very clear that while in Africa and again while in Afghanistan, he had hosts who would have been susceptible to all kinds of persuasion at different junctures and on the deterrence front, it’s equally clear that things like our bases in Saudi Arabia and our efforts in Iraq from the getgo and our dissipating efforts in Afghanistan now are all things that empower and grow al-Qaeda, so I don’t think (since we haven’t used them) that you can persuasively discount the fact that removing troops from Saudi Arabia, for example (and as we promised) might not have had a substantial deterrent effect. jmofwiw

    • readerOfTeaLeaves says:

      Mary, your point is well taken. On the surface of things, it appears that the institution of the Presidency has overshadowed the Courts and Congress so thoroughly that — institutionally — the power has grown both quantitatively AND ALSO (b/c of Cheney and Bush’s psychological obsessions) quantitatively.

      Agree that quantitatively, the Presidency has become a beast.
      Whether the qualitative alterations (toward renditions, torture) are so sinister and revolting that they prompt saner heads in the courts and Congress to cull the beasts’s tentacles remains to be seen.

      Either way, the way in which campaigns are financed and run — and covered by media! — is clearly not vetting the caliber of elected officials required to deal with the complex, nuanced issues that overwhelm both Bush and Cheney.

      Jeff, how’s this as a summary of your comments as I understand them?
      1. Fighting terrorism is SO important that we have to do it much better than we have in the past.
      2. Fighting terrorism means we have to build trust so that others will join our efforts.
      3. Torture demolishes trust, provides unreliable information, and damages the people who do it — therefore, it sabotages our chances of successfully fighting the war on terror.
      4. Re: Renditions, see item #3 above; renditions are self-defeating, therefore we won’t do them.
      5. Violating our own laws dooms us, because the war on terror is partly a war on the rule of law; the only way to fight for the rule of law is to honor it as we continue to be vigilant.

      Hmmmm… fascinating synopsis. Thank you.
      You make a good point — global warming may be more dangerous than terrorism, but terrorism is more psychologically salient. Agreed, and there’s the rub.

      [email protected] Thanks, also.
      So it would appear that a critical task lies in helping people understand why torture, rendition, etc are counterproductive — in an era when Kiefer Sutherland evidently portrays a ‘kick ass’ terror fighter weekly on teevee. Surely, Kiefer must provide a lot of psychological comfort, or people wouldn’t watch that show — so not only are we up against the Bu$hCo cabal, we’re also up against bad television. Bleh…

      However, would Sutherland’s character ever burn tapes of torture, b/c he was afraid of being hauled off to court and put in prison? (I honestly don’t know — don’t watch that program, so my question is actually sincere.)
      BTW: Don’t know that you are familiar with ‘mirror neurons’ ( Turns out they’re extremely important for learning how to behave. Shorter: Sutherland’s character behaves in ways that people mimic b/c they don’t have good alternatives that help them see better ways to approach complex problems.

      Shorter: In addition to the legal cases, someone probably needs to get a better show on teevee — one that shows, week after week, only relationship building (rather than ass kicking). But that’s not a simple task, and not my forte. However, if I were assessing this from what I understand of mirror neurons, that would be a key aspect of addressing the problem you pose.

  75. Mary says:

    As for “executive overreach,” you need to be more specific … Is the MCA or the PAA an example of “executive overreach”? … Yes, crises like post-9/11 lead to the accumulation of power in the hands of the executive branch, and that is potentially worrisome. But I take it that the executive branch is going to tend to need robust capabilities in those situations, and the trick is how to make that work with our freedom.

    IMO the MCA and PAA are basically an area of executive overreach, bc their genesis was an ever more enfeebled Congress (because of executive overreach) agreeing to do anything rather than buck the President and the judiciary’s enfeebled response to invocations of state secrets. Both those stemmed very directly, imo, from the evils in the DOJ, which is the law enforcement agency of gov. Once DOJ declared (much more directly and chillingly than the military – which still had holdouts like Mora and in the officer ranks of JAG and some officers with integrity outside of JAG) an allegiance to the Executive over the law, then Congress and the courts were faced with the very real situation of no entity or agency loyal to the law to support them if they did resist. They didn’t have Bush doing the Jackson paraphrase of ” “John Marshall has made his decision, now let him enforce it!” but instead they had all of DOJ lined up against them and willing enablers of Executive overreach.

    You can see what happens to Executive overreach when lawyers respect the law. It happened to Nixon. It happened on one of the few incidents where lawyers did get cold feet (the hospital scene) but it has never happened with torture in general, disappearing children, or any of the many very wicked things that Bush ordered up and denizens in his various agencies executed. So I agree with what I think is your point that Congress handed over (more so than Bush took) the powers in the PAA and MCA – but they did so only after he had already TAKEN those powers and then said, “I dare you to do something about it – I own DOJ”

    The Executive branch does need robust capablities – but it already has them. What it does not have is any clear thinking and organization. We didn’t lack surveilled phone conversations before 9/11, we lacked anyone with intelligence and focus organizing the information that was available and we lacked a President who responded with any zeal to the many warnings given. If you get a chance, you really should go read the Ex Parte Milligan case bc, unlike current cases, it also gives the arguments by the Gov and the petitioner with the opinion and the same concepts of the “needed” powers of the Executive Branch that come up everytime you turn around were made with lots of force and vigor even back then – it is an ideological issue at heart, not a practical one.

    Gov. pointed out, with really much more force than anyone re: the war on terror, what the horrific costs of the civil war were and how it was “unlike any other” conflict (they are all unlike the others – the same argument is made every time there is a power grab) and how “necessary” were the powers grabbed and even acquiesced in by Congress. The court handled that sophistry very easily and their statements are just as true today:

    By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers. or the clamor of an excited people

    Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future.

    The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

    I don’t disagree that we may need to have a public discussion and public legislation that takes some different approaches here and there, but for this country to survive with meaning then those different approaches still require that they take place within a Constitutional framework of checks, balances, oversight and an Executive subject to the law – all of which have been abandoned in a way that will forever serve as precedent now. It’s why I don’t think the country has really been able to survive the blows dealt to it by its own DOJ. The DOJ support of and solicitation for torture, which has now brought fearful courts and Congress in line, are things that will forever taint – you never become and “ex-torturer” and you never leave “ex” victims behind, only torturers and victims. You don’t have a legal system that is a “recovering torturholic” in a 12 step program. You have empowered criminals running a scam that they operate under the nomenclature of a legal system, but with “defined terms” that are horribly aberrant from the normal usages of decent people.

    And the fact that the Executive went forward, not for days, weeks or months, but for years and years, engaged in “exigent” programs highlights their lack of exigence and lack of Executive need more than anything. When you have a Congress ready to hand you things like the PAA and MCA, but instead of even asking for them you operate for years criminally – – when you have a man mistakenly captured and abused but you continue to hold him for months or years of abuse beyond the revelations othat you were “wrong” (if kidnapping someone for abuse can ever be ‘right’), when you disappear children and leave them disappeared years later, with no remorse, it’s not a matter of need for more vigorous powers in the Executive (and I know that you don’t buy into a need for rabid unchecked torture rights so I don’t mean to imply to the contrary by seeming to argue with a point where you don’t necessarily disagree), but instead its an Executive that has become wedded to the concept of power without responsiblity, uncheck, unbalanced and unstable power that will always and inevitably seduce to evil. That’s not new or news, and its why I call Goldsmith dishonest and much less than admirable for his adoption of pretence to the contrary and his adoption of “making it right” with opinions like his “famous footnote” *revocation* of torture that does nothing more than use different words for the concept that “whatever you did, you won’t be held responsible for it.”

  76. Mary says:

    drational @ 132 – I’m with you on almost everything you say. My difference, I guess, is that I don’t thinks Goldsmith is an architect of evil just by virtue of his being in the Bush administration at all. Heck, to an extent Alberto Mora and men like Dan Coleman were a part of the Bush civilian military apparatus and the Bush DOJ and I think they are real heroes. Not the fictional kind with superpowers backing them up, but the real life kind with no power and no one having their back, but who stand anyway.

    My problem with Goldsmith is the things he WAS the architect of or has fought to support. He was special assistant to Haynes while Haynes generated his special interrogation policies and he knew all about the maneuverings by Haynes to cut out JAG, then when Haynes goes and testifies to the Senate Judiciary that he involved JAG in his torture/abuse policies, under oath no less, Goldsmith is immediately rushing to help try to orchestrate (or act as “architect” for) putting Haynes on the 4th Circuit. Goldsmith got reams of information via OLC and his activities about how many people held at GITMO were total “mistakes” and his architecture of office was to keep silence in place – including silence all through the fibs in the Padilla press conf, the fibs Clement argued to the Sup Ct, the fibs for invocations of state secrets in cass like el-Masri and Arar. Most importantly, Goldsmith was the architect of the torture footnotes that gave a SECOND BLESSING to torture and to exempting the Official Whitehouse Torturers from the rule of law and consequences for their actions. He also spent, and continues to spend, a lot of time acting as an architect for the “we treat people humanely” themes and the refusal to ever simply say, “George Bush ordered up torture and found men and women willing to be torturers and anything else is a lie.”

    It’s very specific things he did and didn’t do that make me feel about him as I do, not that he was just a cog in the Bush adminstration. Although by now, I tend to have mush lesser, but similar, feelings about anyone still in the Bush DOJ. Once everyone has stood up and acknowledged that the purpose of DOJ is to cover up Bush’s crimes, including torture, then I think any individual’s decision to stay a part of that DOJ is repellant. And I think it’s been beyond clear for at least since Dana Priest’s article that this is where things stand. But in Goldmsith’s case, it’s specific things he did and didn’t do before that piece ever came to light, as well as his actions and editorials etc. since that are behind my reaction. Not just his loyal Bushie badge.

    The Monica Goodlings of the world don’t get the same reaction from me as the men who write CYA memos then drop footnotes to protect known criminals and criminal acts, because they have no scruples.

  77. Hmmm says:

    Thank you everyone who participated in this excellent and helpful thread. I read Goldsmith’s book, and came to a basically similar take to EW’s, so no need to recite that. The only things I would add are:

    (1) Goldsmith has a recurring twist to his justification for the overreactions (and make no mistake, he fully cops to the fact that the Administration’s reactions have been disproportionate to their triggers) — he seems to think that because the Executive will be blamed by the people after the next sizeable attack, that justifies the 1% doctrine et al.. This is crap, of course. Doing destructively disproportionate things primarily in order to avoid whatever injury the targets would suffer would be far far better… but would still be bankrupt, and perhaps even an impeachable offense; doing them primarily to avoid blame is truly a nadir. The risk of doing the right thing instead of doing the contingently politically safe thing is a risk that a President must take. Maybe TheraP can help us understand why Goldsmith is blind enough to this moral pit to be able to admit and endorse it.

    (2) Goldsmith also endorses the idea that because the Executve decisionmakers are faced on a daily basis with an unprecedented collection of threat summaries — made possible, one can only assume, for the first time by TIA surveillance — they are overwhelmed and feel afraid all the time. This too, he argues, justifies the 1% doctrine. Further, many of the major operational and legal changes undertaken immediately after 9/11/2001 were done because the decisionmakers were petrified. This too is, obviously, crap. The remedy to bad decisions made while a human is afraid is to revisit and re-evaluate while not afraid, or if the same human is still afraid, for different humans to make the re-evaluation. Clear judgement for the good of the country must must must the goal, not just making the personal fear stop for the decisionmaker.

    (3) Additionally, Goldsmith endorses the concept of permanent emergency, which has been recognized as obvious crap from the time of the Federalist papers as incompatible with Democracy. Exceptionalism at its very very worst, and it presents a clear and ringing danger of exploitation by aspiring despots. Here the proper remedy is to reject the framing of any durable status quo as emergency, and instead to use primarily the Legislature (secondarily the Courts) under the existing framework of the Constitution to adapt the corpus of law — and hello, Law Professor Jack, you really should know this — to comport with the new reality.

    So Jack to me is a mixed figure at best. True, he fixed some of the worst OLC opinions, which has prevented who knows how much terrible, terrible stuff from happening at a tactical or operational level. On the other hand, he did not challenge the underlying strategic paradigm of exceptionalism, and through this omission, has done little to correct the fundamentals. And so 1% doctrine overreaction and CYA still reigns, and within the envelope of cover those provide be monsters most foul. And so the nation remains at risk.

    • Jeff says:


      I’m just gonna point out that your (1) and (2) are conditions that Goldsmith describes precisely not in order to justify the overreactions, and to explain them only in order to make it less likely that such overreactions reoccur. And he more or less precisely endorses your proposed alternative in (2).

      • Hmmm says:

        I’m thumbing through the book now, but my strong sense is that although I agree with you that Goldsmith says that the Bush Administration’s reactions went too far, I don’t see that he ever challenges their motivations for acting — rather, he explains them and accepts them at face value. The fault he finds is in judgement about exactly what to do, and the Administration’s blind spot about the need to garner public and Congressional support for whatever extraordinary actions may need to be undertaken. He does not question the need for taking extraordinary actions because he does not question the motivations I list at (1) and (2). Not that he much objected to going commando at the time, actions-wise:

        Page 80:

        “The President can also ignore the law, and act extralegally,” I said. Gonzales and Addington looked at me as if I were crazy. I was not urging the President to break the law, I emphasized. I was simply letting his legal advisors know that there were honorable precedents, going back to the founding of the nation, of defying legal restrictions in time of crisis. “A strict observance of the written laws is doubtless one of the high virtues of a good citizen, but it is not the highest,” Thomas Jefferson wrote to a friend in 1810. “The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, and property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

  78. Jeff says:


    Well, he offers a sympathetic account, though not a justification, and ultimately he says that Team Cheney was driven by a theological conviction about expanding executive power regardless of consequence, and power understood in the most crude way as the absence of constraint.

    As for taking extraordinary actions, that’s a somewhat different question, and I’ll just say that I agree with Goldsmith, that if the executive judges those need to be taken, then you do it without trying to argue that whatever the president authorizes is just by that token constitutional and therefore legal. Instead, you break the law and – and Goldsmith is explicit about this in the passage following what you’ve quoted – you go public with that lawbreaking and throw yourself on the mercy and justice of the country and their elected representatives.

    That, by the way, is the correct answer – or the second part of the correct answer – to the ticking time bomb scenario, the first part of the answer being that such scenarios are almost always totally unrealistic. But it’s also the answer to the torture question, at the limit. No torture as policy for about eighteen different reasons, and if there is some desperate circumstance, as they say, necessity knows no law. And if that includes illegal and immoral action, the performer of that action has an attendant responibility to go public in just the way I described.

    Instead, of course, we got almost the reverse – torture as secret policy authorized and practiced in secret, covered up, unavowed, evidence destroyed. That is part of the metastatic corruption of torture, even if it doesn’t lead to more and more torture. It leads to a cascade of immoral and probably illegal conduct.

    • Hmmm says:

      Well, I doubt we’re going to be able to settle items (1) and (2) — though if you want to drop any cites please do so — so for the sake of closure, let me bring it around to (3) Permanent Emergency/Exceptionalism because from your comments it seems you agree that in the end, for any conceivable extraordinary measures to have any legitimacy whatsoever, they must must must be brought into the sunshine and regularized, not left to fester in the dark. Yes?

  79. JohnLopresti says:

    Goldsmith’s OlcReins handoff was to Bradbury. Bradbury’s judicial nomination has elicited the ongoing parliamentary Senate maneuvers to prevent buccaneer appointment during a recess. It is interesting the Goldsmith hearing transcript appears at fas instead of at the congressional committee website.

  80. Jeff says:


    Wel, not any extraordinary measures, specifically if something really extreme, immoral and/or illegal but deemed truly necessary is done, then it must be made public absolutely as soon as possible. And I don’t even want to say it can ever be legitimate. It can either be punished or forgiven, I suppose, but not legitimated. Wrong is wrong. And for about eighteen different reasons, it’s really important to stick to that.

  81. drational says:

    This is something I have thought about that I’d like to put forward in this venue- This is an old thread at this point but I suspect many serious people are still reading.

    The 1% doctrine is in a way much of the impetus for “terror presidency”.
    To me its effectuation (outside of the ones who simply want to use it as a tool to increase the power of the Presidency) seems based upon altruism- people are asked to sacrifice (their liberty) for the goal of “protecting the security” of our society.
    and so at the base of the equation are:
    1. the legitimacy of the threat
    2. the likelihood that the sacrifice will attenuate the threat.

    many here discount the threat of AQ, but Jeff, and many congressional Dems and most of the sincere Right (again, excluding Federalists) believe the threat of AQ is severe enough to warrant some sort of altruistic sacrifice with respect to liberty. Goldsmith argues the sacrifice should be petitioned and above the table, with congressional and public CONSENT, whereas the Bushies forced the sacrifice unilaterally and in secret. To me, the Bush approach speaks toward the true motives of the administration- power for power’s sake.
    In a way the sacrifice seems analagous to the military doctrine of “leave no fallen comrade behind”. Thus many will put their lives at risk for an injured soldier, perhaps one who is already dead. The disproportionate risk/benefit makes no sense from strictly materialist/capitalist math; yet the sacrifice is readily given.
    With respect to the liberty sacrifice for the WOT, I suspect many buying into the plan have no idea what they are sacrificing and the threat risk seems real enough.
    So if Liberties are to be protected, we require:
    1) better propaganda to make a case for why liberties matter.
    2) debunking exaggerated threat risk
    Unfortunately I suspect that on some level it is impossible to redefine the threat risk in more mathematically accurate terms. 9/11, while a small attack in the grand scheme of things, had substantial psychological impact for many Americans. Whether the result of propaganda or an authentic reaction to the loss of life, it is a powerful construct for illustrating threat risk. And so, and I think this is where Jeff is positioned, Democrats MUST have a comprehensive and cohesive strategy for actually minimizing the AQ threat. We cannot simply say the threat is minimal and end the conversation to effectively intervene in the liberty sacrifice.

    So then we reach part 2- whether sacrifices minimize the threat. Sacrifices are more forthcoming when the outcome of society gain is more clear. I think this explains the multiple examples of exaggeration about the nature of captures (they are all Qaeda-linked), and the insistence by the administration that torture or wiretapping saves lives- along with well timed examples (McConnell soldier kidnap story just before PAA vote). Even the names of these bills are designed to solidify the effectiveness perception (Protect America Act).
    It seems the liberty sacrifice is facilitated by people buying into the effectiveness perception- I think Marcy alludes to this in calling Goldsmith a “sincere” conservative. Goldsmith believes that torture and wiretapping work. The problem for people who want to protect liberty and human rights is that on occasion they probably do. Pulling out fingernails and threatening to murders your family will probably get you to talk about nefarious plots, both real and imagined.
    So again, civil libertarians are stuck with a propaganda problem. If the sacrifices work (and by work I mean either get real results or can be easily sold as doing so), then why not make them?

    Again we are faced with explaining why civil liberties and human rights are important, and unfortunately, these arguments seem to fall on many deaf ears. So again, there must be a clearly defined alternative plan for EFFECTIVELY reducing terror threats.

    I think the GOP has been successful with this issue because Dems are all over the map on how to fight terror. And make no mistake TERROR IS A CENTRAL ISSUE Dems must be prepared to address because it is
    1. Simple to understand, and fantasize/extrapolate about
    2. Psychologically meaningful
    3. Easy to propagandize

    Some Dems want to reject the issue as important, some Dems want to crawl into bed with the Sacrifice crowd, and some Dems want to attack it “holistically”. Unfortunately, the holistic approach will never be an easy sell. It fails to fulfill any of the 3 criteria that the “terror presidency” paradigm has going for it.

    I don’t know the solution. I do know it is a shitload easier to say “If you elect a Democrat, the terrorists will win” than it is to say that “we will solve the Israel/Palestine conflict, we will remove military bases from the middle east, we will make America less Dependent on foreign oil, and we will aggressively “police” the globe (without torture or domestic wiretapping) to minimize the AQ risk.”

    So in conclusion, I believe we had better be ready to deal with many more “Terror Presidencies”. Not because terror is more important than climate change, or health care, or the economy- but because the GOP will force us to deal with it every day from now until the images of 9/11 are no longer exploitable. We are “one bomb away” from perpetual “terror presidencies” if we are not yet there.

    • Jeff says:


      I think that is all very smart, and I basically agree with virtually all of it. I am rather more optimistic, fundamentally because I really do believe that a lot of the controversial measures the administration have taken, and the curtailment of liberties they have pushed, are unnecessary and sometimes even gratuitous – that is, they are not only sacrifices in freedom, they don’t work as effective counterterrorism. To take an example, there are ample arguments both on liberty grounds and on security grounds against a policy of torture. Those arguments just need to be made. And also any prospective successor to Bush needs to show that s/he takes the threat seriously, and that s/he will do everything s/he can and should to protect the American people. But again, that should be relatively easy, because it’s all true.

    • klynn says:

      Interesting points. However, I would refer everyone to read Steve Flynn’s books in order to address “what” needs to happen policy-wise for “terror-Presidencies” and the protection of our rights. Yes, Steve is a conservative but he is very bi-partisan in his work and focuses on the problem solving of these issues, not the politics.

      Steve Flynn, Author of The Edge of Disaster: Rebuilding a Resilient Nation (2007) and America the Vulnerable (2004).

      Please do not forget, France lived through some very threatening years, terror-wise, and managed a policy over time, which did not compromise their politics and essentially ended terrorist bombings in France.

      Yes, the threat is real but I personally believe in the need to confront the “fear” card every time. Additionally, bmaz addressed some of these concerns in a previous thread which is worth a read. Dialogue came up regarding the many FOIA cases since 9-11 which have been stalled because of the administration’s “below the table behavior”.

      We’ll see a great deal of case law come out of these cases…

  82. Boston1775 says:

    Can anyone envision the equivalent of the Innocence Project as a way to challenge the many horrible precedents of which Mary writes?

    I know that their goals include not only directly helping the people harmed by our legal system but also reforming the bad laws and faulty legal system that led to the injustices.

    I understand this is a simplistic question, but if a couple of attorneys could begin this project (it has grown to many more), then a few more might be able to find the cases which could challenge these precedents.

    This is a very humble question asked to an extraordinary group of people. My deepest thanks for the work on this thread.

  83. Boston1775 says:

    Could it be that leading law schools might begin work on a case and that the endless hours needed might not be billable but, rather, paid for by the next generation of attorneys dedicated to a better justice system in a time of endless terror?

  84. nolo says:

    this thread is still yielding great
    insights, some 180 comments in! thanks
    one and all — i am “caught up” again — now,
    while i wait for my copy of the goldsmith
    book to arrive from amazon, i thought i’d
    offer this, from a very-capable review (but
    do go read all of the review excerpted below)
    of the goldsmith book — by the american university law
    professor, kenneth anderson

    . . .But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court – or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court’s swing vote – that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.

    The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability. . .

    [emphasis supplied.] this seems exactly right — cheney
    was far less interested in protecting future presidents,
    and far more focused on “not on MY watch” — to the
    extent that he ultimately has weakened the presidency,
    as an institution, for generations to come.

    but these frat-boys ran the chartered “animal house
    the way they wanted for their twinned-four-year under-
    grad stints. . . no matter that the plumbing, and sewer,
    now overflows, as they prepare to leave campus, and take
    jobs in their fathers’ businesses. . .

    even so, i think the comments above are well-founded: we will
    need to litigate several of the more-egregious usurpations to
    have the courts repudiate them. we, it seems, will become
    the plumbers, this time. will kennedy help run the roto-
    , or will he still be passed-out on the couch on
    the porch, in a jack daniels haze, when that time comes?

    we’ll have to see.

    p e a c e

  85. Jeff says:

    Since I don’t want to mess with the holy football thread, I’ll leave this here: Mazzetti has a new, long, good article on the torture tapes out. It is a good narrative overview, it offers a number of new analytic insights, and drops a few mini-bombshells along the way. Among other things, Bush didn’t know where the secret prisons were located; they stopped taping late in 2002; CIA IG Helgerson began his investigation of interrogation methods in 2003 and insiders believed it might end with criminal charges, and in fact in April 2004 he finished his investigation concluding that some of the CIA’s techniques were CID treatment under the CAT; the May meeting between Gonzales, Addington, Bellinger and Muller happened days after the revelation of Abu Ghraib – and one of the most interesting questions is whether CIA went to the White House at that point in part because it thought it was an opportune moment since the White House would be inclined to eliminate the possibility of any more visual disclosures of torture; at the May meeting, Bellinger advised CIA against destruction, it’s not known what Addington and Gonzales said; when Rodriguez raised the issue of destruction with Goss as DCI and Rizzo, Rodriguez wanted a firm answer, and supposedly Goss advised against destruction without ordering it and said something about preserving the tapes overseas (but this may well be total spin, and Team Goss have crazy spin about why Goss didn’t do anything when he found out about the destruction even though he was unhappy about it); and there is a cable documenting Rodriguez’ order to destroy in November 2005.

  86. Rayne says:

    Now that’s an interesting and telling little quote:

    “By that time,” Mr. Krongard said, “paranoia was setting in.”

    If Krongard could see paranoia, couldn’t the rest of the admin see obsessiveness about this and other topics? Shouldn’t they have recognized it?

  87. Mary says:

    176 – I think you make some good points drational, but you lose me completely when you say,

    many here discount the threat of AQ,

    I think that’s a straw man creation. I haven’t seen anyone here who discounts the threat of al-qaeda. They are responsible for the worst act of terrorism on our soil. I haven’t seen anyone discount or discredit that – just lots of discussion of other threats, good and bad ways to address threats, and the need to protect the constitution and our democracy in order to protect the country.

    And while I think your points are very well thought out, I also think that no amount of propaganda will go as far as forcing discussion of facts and truth. As long as no major media consistently and correctly challenges with fact the statements about humane treatment, we don’t torture, etc. and as long as getting puff pieces on Bellinger and Goldsmith and Tenet and Comey and Gonzales and Mukasey is more common and prolific than the stories of their victims, and as long as the media buys into the new “defined terms” of waterboarding and years of being disappeared into isolation involving repeated abuse and torture as “humane treatment” without any real questioning and response, I think no amount of positive spin on why liberties are good will win the field.

    I saw more people finally flinch and respond when the anti-torture interrogators like the ex-SERE instructor came forward with very specific, fact based, accountings of the drowning involved in “waterboarding” than a ream of articles on waterboarding that had made references to sprinkling water on the face or simulations of drowning, etc.

    The facts of abuse are out there, but CNN and FOX and MSNBC etc. don’t play them the way they do Dancing with the Stars stories.

    182 – thanks for the link Jeff.

    • drational says:

      did not mean to lose you.
      I should have said “give the appearance of” minimizing the AQ threat. In an argument about terror or about “terror presidency”, when we come to the table loaded with facts about how climate change is more impt, or about how all prior WMD links and Qaeda-Iraq links were bullshit, we are speaking the truth. But as an effective approach to persuade an ambivalent and uneducated plebecite, I am not convinced the approach will be successful.

      If you accept the psychological value of the threat of terror, then a debate about terror must address the issue head-on. When we talk about climate change as “more important”, it appears we are side-stepping the terror issue. When we talk about how the true nature of the AQ threat has been exaggerated, we are spot on but vulnerable to being blasted with images of 9/11. I suppose my point was that fighting the terror presidency frame with nuance and holism is difficult; and further as a political strategy it is risky. You give so much credit to the American public that the TRUTH will set them free…. I wish it were so:

      “The facts of abuse are out there, but CNN and FOX and MSNBC etc. don’t play them the way they do Dancing with the Stars stories.”

      “in an era when Kiefer Sutherland evidently portrays a ‘kick ass’ terror fighter weekly on teevee.”

      I agree that the arguments must be made. We must continue to beat the drum for truth and righteousness and for the Constitution. But I believe we must deal with propaganda- we must understand why it has been successful and we must manipulate it to our own effect.

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