Jack Goldsmith on 'The Terror Presidency'

DATE September 7, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Jack Goldsmith, head of the Office of Legal Counsel for
nine months, on the expansion of executive power during the Bush
administration's time in office
DAVID BIANCULLI, host:

This is FRESH AIR. I'm David Bianculli, TV critic for the New York Daily
News, sitting in for Terry Gross.

On today's show we're going to return to a subject examined earlier this week:
the expansion of executive power during the George W. Bush administration.
We're about to hear the interview Terry recorded yesterday with Jack
Goldsmith. Goldsmith spent nine months as head of the Office of Legal
Counsel, the OLC. This office advises the president and the attorney general
on whether the president's plans can be implemented legally.

According to Pulitzer Prize-winning journalist Charlie Savage, who was on our
show earlier this week, if the president wants to do something the office
interprets as illegal, the duty of the office's attorneys is to say that it
cannot be done. But this role also gives those attorneys the power to
preemptively absolve officials of wrongdoing.

When Jack Goldsmith was appointed to head the OLC in October 2003, he
concluded that some of the most important opinions that had come out of the
office before he arrived were deeply flawed and sloppily reasoned. He
retracted two now-infamous opinions known as the torture memos. After
retracting those memos, he resigned, only nine months after arriving.

Goldsmith tells his story in his new book "The Terror Presidency: Law and
Judgment inside the Bush Administration." Goldsmith is now a law professor at
Harvard University. Although his book is not published officially until
Monday, it is making news already for several reasons, including a couple of
statements he attributes to David Addington. Addington is Vice President
Cheney's former legal counsel and current chief of staff. Addington was a
major figure in the secret planning of the war on terrorism's legal strategy
and is a strong advocate of the expansion of executive power. Goldsmith and
Addington often were at odds.

Terry spoke with Jack Goldsmith yesterday. She asked him about one of his
confrontations with Addington.

TERRY GROSS, host:

You quote him as saying some things in the book that are already being quoted
a lot on the Internet and are striking some people as very extreme, and I'd
like your reaction to these things that he said.

Mr. JACK GOLDSMITH: OK.

GROSS: You write that when you were trying to put an important
counterterrorism initiative on a proper legal footing, he said, `If you rule
that way, the blood of the 100,000 people who die in the next attack will be
on your hands.' How do you interpret what he said and what he meant your
reaction to be to that?

Mr. GOLDSMITH: I think, in some sense, Addington did not need to say what he
was saying to me. To the extent he was saying, `Goldsmith, if you make a
decision that ties the president's hands, that disables him from doing the
things that he thinks are necessary to prevent the next attack and a lot of
people die, that in some sense, you're going to be the person responsible for
that.' Especially since he didn't agree with my legal decision. And in some
sense I knew that. I mean, I was well aware. The pressures we all, all the
top lawyers in the administration, faced, conflicting pressures. On the one
hand, there was enormous pressure to do everything possible, everything
legally possible to push right up to the edge of the law to have our spikes in
the chalk, as General Hayden once said, to do everything we could to allow the
president to do everything he could to prevent the next attack.

On the other hand, we kept bumping up against criminal restrictions, some of
them very vague, some of them unclear, some of them, the meaning of which as
applied to the war on terrorism, wasn't clear. And so we were always worried
that we were going to constrain the president in a way that was going to get a
lot of people killed, and that was the tension that he captured in that very
colorful sentence.

GROSS: Another sentence that's being quoted a lot from your book, you write
that during a tense meeting at the White House in February of 2004, in
referring to the FISA court, the court that has to approve warrants related to
the federal intelligence surveillance act, Addington said to you, `We're one
bomb away from getting rid of that obnoxious court.' People are interpreting
that that he just couldn't wait for the next bomb so that they could get rid
of the FISA court. How do you interpret what he meant by that?

Mr. GOLDSMITH: I don't think that's quite an accurate interpretation. I
think that the gloss I would give is that he certainly did not like the FISA
court. He thought that the entire FISA structure that required the commander
in chief to go to a court to get a warrant to find out where the enemy was, he
thought that was invalid and an unconstitutional infringement on the
president's power. And he believed that FISA was constraining the president
in a way that may get a lot of people killed.

And I think what he meant by that was in when the next attack comes, and the
next attack is attributable to a legal system that constrained the president,
we'll get rid of that legal system. I think that's what he meant. Because he
certainly wasn't--I should make clear, I certainly don't think that David
Addington couldn't wait for the next bomb to come. That certainly wasn't
true. He worked day and night, very hard, to try to prevent the terrorists
from coming here and killing people, and so I think it would be a
misinterpretation to say he couldn't wait for the next attack to come. That
certainly isn't true. I think he thought that the legal constraints on the
president were going to lead to another attack and only the next attack would
enable him to get rid of what he thought were invalid constraints.

GROSS: You were part of a very dramatic scene that has recently come to
light. When it was time to renew a program that was part of the war on
terror, John Ashcroft, who was then the attorney general, was very sick and in
the hospital--he was in intensive care, James Comey, his deputy, who was the
acting attorney general while Ashcroft was incapacitated, didn't want to
re-authorize the program. So when it was time to re-authorize it, Alberto
Gonzales, who was then the president's legal counsel and Andrew Card, the
president's chief of staff, tried to do an end run around Comey by going right
to Ashcroft, in intensive care, and asking him to re-authorize the program.
You got wind of this. You got wind of the fact that Gonzales and Card were on
the way and you rushed to the hospital. Would you take the story from there?

Mr. GOLDSMITH: Yes. The acting Attorney General Jim Comey asked me to come
to the hospital because he was--his decision in connection with the program
was based on legal advice that I had given and he agreed with my analysis. So
I rushed to the hospital, rushed up to the Attorney General Ashcroft's room.
Jim Comey and his deputy, Patrick Philbin, and I walked into the room. I was
shocked to see the appearance of the attorney general. I had seen him 10 days
earlier--he had gone to the hospital about 10 days earlier and--maybe it was
five or 10 days earlier, I don't know. I was shocked to see his appearance
because he had lost a lot of weight. He was ashen. He had all sorts of wires
and tubes coming out of him and he just looked terrible. He'd had very
serious surgery the day before.

We were there just for a few moments before White House counsel Gonzales and
chief of staff Andrew Card came into the room. It was a very brief encounter.
They stood at the foot of his bed and asked him how he was doing--Alberto
Gonzales did the talking--asked how the attorney general was doing. He
obviously wasn't doing well. And then basically expressed their view about
the program in question and expressed their view about asking him to approve
the program in question.

At which point the attorney general sort of lifted himself up, sort of puffed
up his chest and color came into his face, and he gave an extraordinary
two-minute speech, it was about two minutes, in which he expressed his own
concerns about what they were asking him to do and said he didn't appreciate
them visiting him under these circumstances and then turned to Jim Comey and
said, `And in any event, he's the attorney general now, not me.' And that was
basically it. He collapsed back down into the bed and he looked terrible, and
I was worried that it was a very dramatic scene and he'd really sort of
expended himself and I was worried that, you know, that might be the end. I
wasn't sure what was going to happen because he looked really terrible, and
then Gonzales and Card very quickly turned and walked out of the room. And
that was it.

GROSS: Now, what was your reaction, and James Comey's reaction, to this end
run that the White House was trying to make around Comey, whose job it was at
that point to decide whether to re-authorize this program or not?

Mr. GOLDSMITH: Well, we all thought--everyone in the room thought it was
inappropriate. To this day I don't really understood what they thought they
were accomplishing by asking the obviously incapacitated Attorney General John
Ashcroft to authorize the program. We all thought it was inappropriate, and
that was my basic reaction.

Now, on their part, let me add, I think this is another example of how sort of
desperately worried top officials were about having their hands tied and
wanting to do something on the war on terrorism so they were motivated by many
things. But one of the things they were motivated by was they thought that we
were acting in a way that was going hamstring the president in keeping America
safe and that was the ever-present tension.

GROSS: Well, you know, it's also like--I know some people would interpret the
action as they only want to hear what they want to hear, and they'll go to
anyone they need to who will tell them that and avoid anyone they have to
avoid who won't tell them what they want to hear. Is that an unfair
interpretation?

Mr. GOLDSMITH: I think that's, with respect, too simple an interpretation.
These were not people who--you know, the people in the White House were not
people who were out to wreck the Constitution or wreck the law. They had a
particular view of the president's power and they had enormous
responsibilities to keep the country safe, and they read threat reports every
day that scared the wits out of them, and they were worried that there was
going to be another 9/11 and when the bombs went off and a lot of people got
killed, that's what they were worried about because they knew they were going
to be responsible for that, and they wanted to do absolutely everything they
could to prevent it from happening.

GROSS: But that...

Mr. GOLDSMITH: That's the more--sorry. That's the more charitable way of
looking at what they were doing.

GROSS: But you were reading those threat reports, and you don't want us to
get killed either, and neither did James Comey.

Mr. GOLDSMITH: Right. That's true. That's absolutely true and we were not
happy about the legal conclusions we reached, and we actually desperately
unhappy about the legal conclusions we reached. And we tried very, very hard
to find alternate ways to help the White House do what it wanted to do, but in
the circumstances at the time, we simply could not sign off on everything that
they wanted to do.

But this is the great tension, I mean, between laws that limit the president
that may keep him from doing things that keep America safe. And if a lot of
people got killed, the lawyers would look, as I say in the book, stupid and
silly for their stupid legalistic interpretations that tied the president's
hands. I assure you that's the way it would look if a lot of people got
killed because of what we did.

BIANCULLI: Jack Goldsmith, speaking to Terry Gross. More after a break.
This is FRESH AIR.

(Announcements)

BIANCULLI: Let's get back to Terry's interview with Jack Goldsmith recorded
yesterday. Goldsmith is the former head of the Office of Legal Counsel, which
advises the president and attorney general on the legality of proposed
actions.

GROSS: When you took over as head of the Office of Legal Counsel, you had to
review all of the policies--all of the legal opinions on the war on terror
that the office had written, and here's one of the early ones that you quote.
This was written by John Yoo on September 25th of 2001, and he wrote that
Congress cannot, quote, "place any limits on the president's determinations as
to any terrorist threat, the amount of military force to be used in response,
or the method, timing and nature of the response. These decisions under our
Constitution are for the president alone to make." And this memo, I think, is
an example of the kind of broad presidential power that the White House has
been seeking during the war on terror. Do you think that that memo is sound
legal reasoning? Do you agree with the reasoning?

Mr. GOLDSMITH: As I say in the book, most of the opinion, of that opinion,
the September 25th, 2001 opinion, much of it I do agree with. The thrust of
that opinion is about the president's power to thwart terrorist attacks and
threaten terrorist attacks and potential terrorist attacks on his own without
any affirmative authorization from Congress, and I certainly agree that the
president has very, very broad powers to do that.

The sentence you quoted is from near the end of the opinion, when it shifts to
a different issue, not about whether the president can act in the absence of
congressional authorization, but whether the president can act in the face of
congressional constraints. And that sentence is a good example of the
extraordinarily over broad assertions of power. It moved from saying that the
president can act against terrorists without affirmative authorization from
Congress to saying that the president can act against terrorists and do
whatever he wants regardless of congressional restriction, and it was a
throwaway paragraph at the end and it didn't have any citations.

Now, I certainly think that the president has powers vis-a-vis terrorists that
Congress cannot limit, and especially in crisis and especially when the stakes
are high. But that sentence that you read is extraordinarily broad, basically
saying without qualification that the president can basically do whatever he
wants against terrorists and there's nothing Congress can do about it. And
it's just an over-broad and incautious statement of presidential power.

GROSS: There were times when you advised that the president should go to
Congress and have Congress sign off on certain programs, but David Addington,
who was again, then Vice President Cheney's legal counsel and is now his chief
of staff, objected, and that Addington would always ask, when anyone proposed
to going to Congress, `Do we have the power to do it ourselves? And if so,
let's not talk to Congress about it.' It sounds like his emphasis was always
as broad an interpretation as possible of presidential power?

Mr. GOLDSMITH: Yes, it was. I mean, in that respect he believed that going
to Congress to get Congress on board for any of the president's
counterterrorism policies might result in Congress saying no or might result
in Congress not giving the president as much as he wanted. And not only would
that leave the president in a worse position in terms of the powers he had
against the terrorists, but would also--if they said no, the president would
have fewer powers. And even the very act of going to Congress, he thought,
suggested that the president might not have the power, so he opposed the act
of going to Congress unless absolutely necessary, unless the president just
couldn't do what he wanted to do, he just opposed going to Congress for
anything.

GROSS: You know, the way you describe what was happening at the White House,
that the White House was so pressured, and is so pressured to protect us
during this time of terrorism, that they didn't want their powers to protect
us reined in by Congress, so thus they tried to keep presidential powers broad
and not go to Congress if they didn't have to, for fear that Congress would
limit presidential power. But isn't it Congress's job, too, to worry about
our safety and to protect us, and isn't it Congress's job to balance
presidential powers in times like this when we need to be protected?

Mr. GOLDSMITH: Well, that's a deep question about the relevant roles of
Congress and the president in wartime, and certainly Congress does have an
important role, many important roles to play. Congress does have a role, and
I actually think the administration would have been a lot better off if it had
gone to Congress on a lot of the issues earlier, especially detention,
military commissions, surveillance. When the president did go to Congress in
2006 for the military commissions and 2007 for surveillance and made the case
and tried to spread responsibility and to put Congress on the spot to exercise
their constitutional responsibilities, he got everything he wanted and more.

And it's just better for the system, when possible, and especially when you're
doing something in a new area that so's contested and when the courts are
uncertain, it's always a better posture to go to Congress and get Congress on
board. You spread the risk. Congress is going to be responsible to some
degree if something goes wrong. But it does run the danger of Congress saying
no, or maybe, or somehow not giving the president everything he wants and,
therefore, in some people's mind, leaving the president less off.

Now, that wasn't my view. David Addington basically had the view that
executive power was the absence of constraint on power, and I think that's
wrong. I think the president is more powerful--and I think history shows this
with the Lincoln and the Roosevelt presidencies--that presidents are more
powerful when they get Congress and the country more on board for what they're
doing.

GROSS: When you took over at the Office of Legal Counsel and read all the
memos that were written for the Bush administration before you took over, you
concluded that your predecessor's legal opinions were deeply flawed, sloppily
reasoned, over broad and incautious in asserting extraordinary constitutional
authorities on behalf of the president. You said, `I was astonished and
immensely worried to discover that some of our most important counterterrorism
policies rested on severely damaged legal foundations.' And examples that you
give of that are the now-infamous torture memos. Would you just, like,
describe, like, the two torture memos that you tried to overturn?

Mr. GOLDSMITH: Yes. One was written in August of 2002, and it was addressed
from the Justice Department to the White House, and it was an interpretation
of the torture opinion--excuse me, the torture statute, the criminal
prohibition on torture in federal statutes. And there was a second opinion
written in March of 2003 from the Justice Department to the Department of
Defense that contained a very similar analysis of the torture statute so that
the question in the two opinions that I talk about in the book was the
question of what is the proper interpretation of the criminal prohibition on
torture and that's what both opinions were about.

GROSS: What did you think was, like, badly reasoned about those opinions?

Mr. GOLDSMITH: There were a lot of problems with the opinion, and, you know,
I wouldn't have withdrawn and tried to replace them unless they were severely
flawed in my opinion, because it wasn't my job to go around looking for
opinions that I disagreed with. The Office of Legal Counsel has a very
powerful norm of abiding by its prior decisions, including prior decisions
from other administrations but especially within the same administration. And
so I wasn't looking around to, you know, find things that I disagreed with and
could fix. That certainly wasn't my attitude at all.

But when these came to my attention and I read and studied them and absorbed
them, the thing that concerned me the most was the breadth of the opinion and
the tone of the opinion, and especially the breadth because it went so, so far
beyond and justified so, so much more than what I knew actually to be going
on, and I thought that it had gone so far in a way that was erroneous, so I
worried--even though I knew what was going on--I worried that the underlying
practices and techniques, I worried that the opinion would be used by someone
out there somewhere to justify much, much more aggressive interrogation
practices. And that was my main concern in the end of the day.

BIANCULLI: Jack Goldsmith, speaking to Terry Gross. We'll hear more of their
conversation in the second half of the show. I'm Dave Bianculli, and this is
FRESH AIR.

(Announcements)

BIANCULLI: This is FRESH AIR. I'm David Bianculli in for Terry Gross.

We're continuing Terry's interview with Jack Goldsmith, whose new book is
called "The Terror Presidency: Law and Judgment inside the Bush
Administration." In October 2003 Goldsmith was appointed to head the Office of
Legal Counsel, which advises the president and attorney general on whether the
president's plans can be implemented legally. Shortly after his arrival,
Goldsmith began to examine and re-evaluate some key opinions issued by his
predecessor. Two of them, now known as the torture memos, Goldsmith retracted
as being deeply flawed legal arguments. Nine months after joining the OLC,
Goldsmith resigned. Terry spoke with him yesterday.

GROSS: Now, that August 2002 memo, you know, had to do with the standard for
qualifying as torture, and it said to qualify as torture, the pain must be
equivalent in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death. And you say
that that language actually had a very surprising source having to do with
what, health policy or something? Would you tell us where that language came
from?

Mr. GOLDSMITH: The language--the Office of Legal Counsel was trying to
interpret the phrase "severe pain." The torture statute prohibits severe pain.
So the question is, and it's a very hard question, what counts as severe pain?
And so they looked around other parts of the US code for other statutes and
they found the phrase "severe pain" as you just described it used in a statute
that actually authorizes health benefits, so it was obviously about something
quite different.

But, you know, sometimes it's appropriate when trying to figure out the
meanings of words in one statute to see how they're used in the other. But
the way, in my opinion, the way that the health benefit statute used severe
pain had no relationship whatsoever to the torture statute. And in fact it
wasn't even really giving a definition of severe pain. It was talking about
severe pain as a sign of an emergency condition that, if not treated, might
cause organ failure and the like. It didn't say that severe pain was pain
equivalent in intensity to organ failure, and I don't even think that makes
sense to apply that idea in the context of the torture statute.

GROSS: You also say you didn't like the tendentious tone of the torture
memos. What was wrong with the tone?

Mr. GOLDSMITH: Well, tone is really important. It's very important for the
Office of Legal Counsel to take a very detached attitude toward legal
interpretation and to appear to take a very detached attitude toward legal
interpretation. And this opinion, as one senior official in the Justice
Department put it to me, wasn't the usual detached OLC analysis, but rather,
as this person put it, read like a bad defense counsel's brief. It basically
read as if it were stretching to find ways to immunize people who were going
to be doing very, very aggressive interrogations. And that was the--instead
of doing a kind of neutral, detached analysis of the meaning of the torture
statute--and in parts it did try to do that. It had the discussion about
defenses to prosecution and self-defense and the like--that seemed extraneous
to the interpretation of the torture law.

GROSS: So you wanted to withdraw these torture memos because you didn't think
that they had a sound legal basis? Were there any precedents for the head of
the Office of Legal Counsel to withdraw decisions that were made in the same
administration that he was serving?

Mr. GOLDSMITH: There may have been some, but I couldn't find any, and so I
quickly concluded that these opinions were flawed and needed to be withdrawn
and replaced. But doing it was very, very tricky because I really didn't have
any road map about how to do this. And the difficult part was of course
that--let me emphasize I had not concluded that the techniques that were being
used, the actual interrogation techniques, were unlawful. I was more
worried--my first and primary worry was what else might be going on that I
didn't know about in the name of these opinions.

But, as you say, there was no precedent, no road map for withdrawing and
replacing them, and so there were a lot of hard judgment calls about timing
and the appropriate approach to withdrawing the opinions. I couldn't just
say, `OK, I've concluded these things are wrong. I'm going to withdraw them,
and then we can move on from there.' So many people had relied on them. These
programs had been vetted throughout the highest levels of government and
briefed to Congress, and I couldn't just come along and say, `Well, I disagree
with this now. We have to start all over.' So actually withdrawing and
replacing them was one of the trickiest things I did in government.

GROSS: How did you do it?

Mr. GOLDSMITH: My basic approach after talking to some colleagues in the
Justice Department was to not withdraw the opinion until I had done what I
thought was a proper legal analysis so that I could tell the agencies in
question what they could and couldn't do. And this was very easy with regard
to the Department of Defense, because the Department of Defense had relied on
these very broad Justice Department opinions to approve 24 techniques that I
was able to quickly determine were lawful. And so I called the general
counsel of the Department of Defense and I said to him that--I told him that
the opinion had some errors, that we were withdrawing it, that he shouldn't
rely on it, but that we've done an independent analysis and the 24 techniques
that they had been using we had determined were lawful and that he could
continue to use those techniques and therefore that, as far as I could tell,
nothing would have to change in the actual interrogation techniques. And I
told him not to rely on the old opinions or do any of the other techniques
without coming back to the Justice Department. So that worked pretty well.

It was much harder with regard to what President Bush called the tough
interrogation techniques being used by the Central Intelligence Agency, and
I'm obviously not at liberty to talk about those techniques, but those
techniques were closer to the legal line. I never determined that they were
unlawful, but figuring out--it was much harder to apply the torture stature to
figure out whether they were lawful or not. It just took a much longer time
to do that and I had many, many, many things on my plate that were, believe it
or not, more consequential than that, and so I didn't get around to fixing
those, unfortunately, until after the Abu Ghraib scandal and after the opinion
was leaked, at which point I was obviously under enormous pressure to stand by
the opinions because the administration was receiving a lot of heat for them.
But I couldn't stand by the opinions because I had determined six months
earlier that they were flawed.

GROSS: So what did you do?

Mr. GOLDSMITH: After deliberating for about a week, I decided that I had to
withdraw them even before I could get a replacement opinion, as much as I
didn't want to do that, because I simply could not defend the opinions. No
one inside or outside the administration was really defending the opinions.
It was very hard to do. And so I just withdrew them and I said that they
can't be relied on anymore.

GROSS: You also resigned at the same time. Why did you resign then?

Mr. GOLDSMITH: I had been thinking, as I say in the book, I had been
thinking for quite a long time about resigning, and I was going to resign in
this period in any event. And, really, announcing my resignation to the
attorney general and to the White House at the time that I withdrew the
opinion, was--it was designed primarily to make sure that my decision about
the interrogation opinions stuck and weren't overruled by the White House. In
an earlier episode when I had had a confrontation with the White House, they
had put up enormous resistance, extraordinary resistance to the decision to
try to put something on what I thought was a firmer legal basis. And I didn't
want to go through that again, I didn't think it was appropriate, and so--and
ultimately it's the president's call, obviously, but I decided that I felt it
was important enough that I really felt it should stick, and I thought it
would harder for them to reverse me if I resigned.

GROSS: Because it would look like you were resigning in protest...

Mr. GOLDSMITH: In protest.

GROSS: And create a big public story.

Mr. GOLDSMITH: Yes. It was a big public story anyway, but that would have
been an even bigger public story.

GROSS: So did you resign really quietly and keep it a secret that you were
the one who was withdrawing these Office of Legal Counsel torture memos?

Mr. GOLDSMITH: I certainly didn't talk to anyone publicly about it and, you
know, soon after I withdrew--about the week after I had both withdrawn the
opinions and resigned, you know, a lot of people on my staff in the Office of
Legal Counsel came to me and said they thought that I had resigned in protest
over the withdrawals of the opinions. They thought that I had been ordered to
withdraw them and had resigned in protest over that decision. Obviously the
opposite was the truth, and I explained that to my staff. I didn't talk about
it for a long time. I actually don't think I've talked about it until this
book.

GROSS: Why not?

Mr. GOLDSMITH: When I got out of government I was very, very timid and shy
and worried about talking about any of my service in government and I thought
that the best posture for me to take was just keep quiet. I did a lot of
thinking and reading about the presidency, and I decided after a couple of
years that--also in that period a lot of stuff came out in the public, a lot
of issues that I was at the center of or debated, and talked about publicly by
the administration, by Congress, in testimony and otherwise, by scholars and
pundits and the like.

And I ultimately decided to write about it because it had been talked about so
much by everyone else in government and elsewhere, and because I thought I had
some things to say that I thought really weren't being focused on and that I
thought might be useful for people in the future who were in my position
trying to navigate this terrible tension between complying with the law and
keeping the country safe.

BIANCULLI: Jack Goldsmith, speaking to Terry Gross. More after a break.
This is FRESH AIR.

(Announcements)

BIANCULLI: Let's get back to Terry's interview with Jack Goldsmith recorded
yesterday. Goldsmith is the former head of the Office of Legal Counsel, which
advises the president and attorney general on the legality of proposed
actions.

GROSS: You know, you write in your book a lot about trying to find the
balance between keeping everything on the war on terror legal and keeping
presidential powers within legal limits, but at the same time, not
over-lawyering the war in a way that makes intelligence agencies and the
military too constrained and forces them to be too risk-averse. Can you talk
a little bit about the difficulties of finding that balance?

Mr. GOLDSMITH: Yes. I'm glad you asked me about this. It's really one of
the central problems that the government faces, and it's something that I was
involved in and unfortunately contributed to. The intelligence agencies are
under enormous pressure to do everything they can to stop an attack, but
everywhere they look, they see these criminal laws and it's very, very, very
difficult to know how far to push in the face of some of these sometimes vague
criminal laws, especially when you're under enormous pressure to do as much as
you can. The result is, we've had more and more and more laws that restrict
the president's power in wartime. More and more of them are criminal laws.
That means that they're going to be interpreted long after the events in
question under, you know, in the context of danger and threat in which actions
were taken. The worry that a lot of people had was, you know, we're going to
do something now that's aggressive but that we think is legal, but that later
we're going to be--it's going to be determined not to be legal and then we're
going to get in trouble or it's going to be controversial.

The CIA has gone through this for 25 years. This has happened time and time
again, where they are asked to do something aggressively that they're told
they can do and then later or not they get severely reprimanded for it, and
that tension, that dynamic is really what led to a lot of the risk-aversion
that dominated the intelligence community and that a lot of people after 9/11
complained about, the risk-aversion that led us to be less aggressive than we
could have perhaps against the terrorist before 9/11. And it's a tension
that's still present.

It's a huge problem for our intelligence agencies and it gives a lot of power
to lawyers. Sometimes you're going to have lawyers who are basically the CIA.
As Michael Scheuer, the head of the bin Laden unit said recently, `You don't
go to the bathroom in the CIA without getting permission from a lawyer.'
Everything they do in the CIA, everything they do in the military, gets
approval from a lawyer. And what that means is the counterterrorism policies
that we take, lawyers have a lot of influence over because they can say yes or
they can say no, and either one of those answers can be wrong. And it's just
a very big problem for members of the government asked to do very aggressive
things to keep us safe but also being told, `but be careful, because if you
cross this vague line you're going to get in trouble for it.'

GROSS: You know, you resigned from your position as head of the Office of
Legal Counsel after you withdrew the two torture memos because you didn't
think that they were legally sound. But, as you point out, a lot of people
assumed that you were behind--you endorsed those memos. They didn't realize
that you were that one who had withdrawn them. When you got your position
teaching at Harvard after you left the Bush administration, there were
protests on campus because people assumed that you were one of the people
behind the torture memos as opposed to the person who had protested them, and
that was before you really seemed to feel at liberty to talk about all of
this. That must have been a difficult and confusing period for you.

Mr. GOLDSMITH: It was a very, very hard period. Let me just say there
weren't actually protests. Some of my colleagues expressed opposition to my
appointment and, you know, alleged that I was involved in crafting the
administration's torture policy, but there weren't actually protests. And, in
fact--I'll answer your question, but in fact, despite the allegations, I
actually was received remarkably warmly by most of the faculty and the
students.

But it was terrible. It was really terrible. I was on the--because--less so
for being at Harvard than--we had just moved to Massachusetts. We didn't know
anyone there and we'd just been through this--my family and I had just been
through this very stressful time in Washington and we were still kind of in
shell-shock from my Washington experience. And we arrived in Boston, and the
second week there I was on the front page of the Boston Globe with these
allegations, and this was my introduction to my neighbors. That was not the
best introduction to my neighbors in liberal Newton, Massachusetts. So it was
a terrible time. And I did deny the allegations but I couldn't, at the
time--I didn't feel like at the time I could explain and justify myself, and
so I just kept quiet.

GROSS: You know, you write in your book a lot about trying to find the
balance between keeping everything on the war on terror legal and keeping
presidential powers within legal limits, but at the same time, not
over-lawyering the war in a way that makes intelligence agencies and the
military too constrained and forces them to be too risk-averse. Can you talk
a little bit about the difficulties of finding that balance?

Mr. GOLDSMITH: Yes. I'm glad you asked me about this. It's really one of
the central problems that the government faces, and it's something that I was
involved in and unfortunately contributed to. The intelligence agencies are
under enormous pressure to do everything they can to stop an attack, but
everywhere they look, they see these criminal laws and it's very, very, very
difficult to know how far to push in the face of some of these sometimes vague
criminal laws, especially when you're under enormous pressure to do as much as
you can. The result is, we've had more and more and more laws that restrict
the president's power in wartime. More and more of them are criminal laws.
That means that they're going to be interpreted long after the events in
question under, you know, in the context of danger and threat in which actions
were taken. The worry that a lot of people had was, you know, we're going to
do something now that's aggressive but that we think is legal, but that later
we're going to be--it's going to be determined not to be legal and then we're
going to get in trouble or it's going to be controversial.

The CIA has gone through this for 25 years. This has happened time and time
again, where they are asked to do something aggressively that they're told
they can do and then later or not they get severely reprimanded for it, and
that tension, that dynamic is really what led to a lot of the risk-aversion
that dominated the intelligence community and that a lot of people after 9/11
complained about, the risk-aversion that led us to be less aggressive than we
could have perhaps against the terrorist before 9/11. And it's a tension
that's still present.

It's a huge problem for our intelligence agencies and it gives a lot of power
to lawyers. Sometimes you're going to have lawyers who are basically the CIA.
As Michael Scheuer, the head of the bin Laden unit said recently, `You don't
go to the bathroom in the CIA without getting permission from a lawyer.'
Everything they do in the CIA, everything they do in the military, gets
approval from a lawyer. And what that means is the counterterrorism policies
that we take, lawyers have a lot of influence over because they can say yes or
they can say no, and either one of those answers can be wrong. And it's just
a very big problem for members of the government asked to do very aggressive
things to keep us safe but also being told, `but be careful, because if you
cross this vague line you're going to get in trouble for it.'

GROSS: Jack Goldsmith, thank you so much for talking with us.

Mr. GOLDSMITH: Thank you very much.

BIANCULLI: Jack Goldsmith, speaking to Terry Gross yesterday. For nine
months in 2003 and 2004, he was head of the Office of Legal Counsel for the
Bush administration. Today, he teaches law at Harvard University.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: David Edelstein on the Western film "3:10 to Yuma"
DAVID BIANCULLI, host:

This month, Hollywood is going back to the classic Western genre. In two
weeks with Brad Pitt in "The Assassination of Jesse James by the Coward Robert
Ford" and this week with "3:10 to Yuma," an Elmore Leonard story that was
filmed once before with Glenn Ford and Van Heflin. The new version stars
Russell Crowe and Christian Bale. Film critic David Edelstein has a review.

DAVID EDELSTEIN reporting:

"3:10 to Yuma" is adapted from a '50s Elmore Leonard short story back when he
wrote Westerns. Leonard's tale is set in Contention, Arizona, where a deputy
waits in a hotel with an outlaw. They have to catch a train to prison--the
3:10, to be exact. As the bad guy's vicious buddies amass in the street,
obviously to liberate him, the outlaw tells the deputy it's not worth dying
for his paltry salary, especially with a wife and kids. He says, `Save
yourself,' and the deputy says, `I have a job to do.' A 1957 movie expanded
the saga and made the outlaw a charismatic leader. It's no classic but its
deep-focus black and white cinematography is striking and there's even a theme
song by Frankie Laine. The new adaptation, directed by James Mangold, is
busier and boasts a higher body count, lots of splatter. It's also morally
rigged in ways I'll get to.

But it has two things in its favor. The first is simply genre. The nostalgia
many of us feel for Westerns in which heros struggle to cling to their ideals
in a craven society. And it has Russell Crowe. Crowe's life has overshadowed
his performances, but there is a link between his acting and unruly behavior.
Crowe doesn't stand outside his characters. He goes so deep I think his DNA
must change. He's undefended, open in a way that's childlike and touching.
He can access volatile emotions more quickly than almost any actor I've seen.
In "3:10 to Yuma" he plays Ben Wade, gang leader and murderer, and it's the
closest he's come to giving an ironic performance. But Crowe's irony is
intense. He's so craftily understated with such soft, laughing eyes that he
upstages everyone. His good-guy antagonist, Dan Evans, is played by Christian
Bale, who's just as committed as Crowe but a lot more earnest.

The movie opens with Dan's family's barn being burned. They're in debt and
don't want to sell to a big rancher, and you know the drill. For money, he
takes a job getting Wade to Contention with a Pinkerton agent played by Peter
Fonda. The former counterculture star entertainingly channels Clint Eastwood
and John Wayne. It's a long, twisty odyssey, but the dramatic core is still,
as in Leonard's story, two men waiting for a train.

(Soundbite of "3:10 to Yuma")

Mr. RUSSELL CROWE: (As Ben Wade) Just lay down your gun and let me walk out
the door. It's worth 400 dollars to me.

Mr. CHRISTIAN BALE: (As Dan Evans) Is that what you reckon my price is?

Mr. CROWE: (As Ben Wade) No. No, I reckon it's 1,000.

Mr. BALE: (As Dan Evans) Isn't that kind of reckless of you, Wade? Seeing
as you're so sure that your crew's coming to get you?

Mr. CROWE: (As Ben Wade) Oh, they're coming, Dan. Sure as God's vengeance
they're coming. But I just like to do things easy.

Mr. BALE: (As Dan Evans) What do--you tell me, Wade, how would I account for
that amount of money? What would I tell people when I spend it? That you got
the jump on me, you escaped and somehow I got a fortune? Hm?

(Soundbite of laughter)

Mr. BALE: (As Dan Evans) No. How dumb do you think people are?

Mr. CROWE: (As Ben Wade) Nobody needs to know.

(End of soundbite)

EDELSTEIN: That's a terrific scene, and there are others--in dark saloons
with swinging doors and bottles of whisky that have an amber glow, and in the
bedroom of a beautiful prostitute who brings out something yearning in the
outlaw. She makes him self-destructive enough to stick around and be
captured.

But there's too much of everything in "3:10 to Yuma": too much extraneous
sadism, too many escapes and recaptures. Plus, the deputy has a son who tags
along, so there's cornball sentiment too.

Mangold has no feel for landscape. He relies on volleys of tight close-ups.
He won't let the movie breathe.

A larger problem is that Crowe's Wade turns out to be the film's moral center.
We know he's a murderer, but we never see him kill anyone who doesn't, in the
ethics of the Western, deserve it.

The climax is ridiculous for reasons I won't go into and reminiscent of
another recent movie I won't mention.

Crowe is a hoot to the end, though. The actor with the volcanic emotions
turns the notion of having few emotions, of being beyond caring, into a bloody
great joke. He almost makes you believe this corrupt Western has integrity,
too.

BIANCULLI: David Edelstein is film critic for New York Magazine.

This is FRESH AIR.

(Credits)

BIANCULLI: For Terry Gross, I'm David Bianculli.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.