The Conscience of a Conservative

Jeffrey Rosen in next Sunday's NYT Magazine:

Goldsmith had been hired the year before as a legal adviser to the general counsel of the Defense Department, William J. Haynes II. While at the Pentagon, Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors from the International Criminal Court might indict American officials for their actions in the war on terror. Goldsmith described this threat as “the judicialization of international politics.” No one was surprised when he was hired in October 2003 to head the Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power. Immediately, the job put him at the center of critical debates within the Bush administration about its continuing response to 9/11 — debates about coercive interrogation, secret surveillance and the detention and trial of enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although he refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror. During his first weeks on the job, Goldsmith had discovered that the Office of Legal Counsel had written two legal opinions — both drafted by Goldsmith’s friend Yoo, who served as a deputy in the office — about the authority of the executive branch to conduct coercive interrogations. Goldsmith considered these opinions, now known as the “torture memos,” to be tendentious, overly broad and legally flawed, and he fought to change them. He also found himself challenging the White House on a variety of other issues, ranging from surveillance to the trial of suspected terrorists. His efforts succeeded in bringing the Bush administration somewhat closer to what Goldsmith considered the rule of law — although at considerable cost to Goldsmith himself. By the end of his tenure, he was worn out. “I was disgusted with the whole process and fed up and exhausted,” he told me recently.