The Principled Conservative

NYT profiles former DOJ White House legal adviser

I found the principled conservative with whom Bush could replace Gonzales. The problem, according to the Times, in its profile of Jack Goldsmith, is that there is no way Bush could hire him.

Goldsmith, a law professor at Harvard, is the former head of the office of Legal Counsel, which advises the White House on, inter alia, the extent of executive powers. As Jeffrey Rosen, the author of the Times piece and friend of Goldsmith, writes:

"[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, [Goldsmith] writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws."

So essentially, Goldsmith's opinions were the behind-the-scenes supports for some of the Bush gang's most nefarious and notorious policies, including the torture of detainees in the "war on terror."

Goldsmith, according to the profile, wasn't entirely all thumbs when it came to a rational analysis of a proposed exercise of executive power. Rosen describes in the article one instance in which Goldsmith didn't give his blessing to a proposed policy:

"Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington [then Cheney's chief legal adviser]. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: 'They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.'"

"They've never been told no." A more succinct indictment of the Bush administration's excesses has yet to be written. That sentence captures the arrogance with which Bush and his cronies have squandered American prestige and the good will of the immediate post-Sept. 11 environment by eschewing entirely the rule of law. The Bushies counted on Americans to trade a essential liberties for a little temporary safety. Maddeningly, that's exactly what we did, every time the issue came up. And Bush's team knew it.

“We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004."

The "unitary executive" theory of presidential authority espoused by the Bush gang has effectively squandered America's reputation with the rest of the world. The go-it-alone approach with which they approached their Iraq boondoggle has mirrored in their approach to domestic politics:

“The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book.

Ironic, since for seven years, Bush had an extremely acquiescent legislative branch, ready to roll over at the very threat of being made to appear "soft on terror."

The results of Bush's attempt to solidify the power of the executive branch have in all likelihood backfired with staggering brilliance. Rosen notes that future presidents, as opposed to enjoying more expansive executive authority, will find themselves hemmed in by ever more skeptical legislative and judicial branches:

“I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

It will be interesting to see, in only a couple of short years, what a federalist government premised on separation of powers looks like. Thanks to Bush, we're virtually assured that's what's coming.