Jack Goldsmith Book

The Terror Presidency by Jack Goldsmith looks very interesting. On the one hand, parts of the book (as portrayed here) seem to portray Goldsmith (and probably rightly so) as having had to push back against those within the Bush administration who had a narrow view of civil liberties. (The account of the Ashcroft hospital scene is rather stunning.)

On the other hand, Ed Whelan describes one chapter that seems a bit more sympathetic to the other side of the story:

In chapter 2 — “The Commander in Chief Ensnared by Law” — Jack contrasts the “permissive legal culture” in which FDR conducted World War II with the “hornet’s nest of complex [domestic] criminal restrictions” and the “lawfare” of international laws and foreign courts that have hampered the Bush administration . . . .

As an illustration of the transformation of the legal culture, Jack presents a remarkable account of the military trial and execution of eight Nazi saboteurs (one of whom was an American citizen) captured in the United States in late June 1942. With the Nation and the New York Times supporting the need for secrecy, the military trial of the saboteurs began days later—on July 8, 1942—in a room in the Justice Department (the very space that, in a later configuration, was to become Jack’s office and my own). When the Supreme Court announced three weeks into the trial that it would entertain the saboteurs’ habeas corpus petitions, FDR told Attorney General Biddle that he wouldn’t hand the saboteurs over, no matter what the Court decided. Learning of this threatened non-compliance, Chief Justice Stone commented that it “would be a dreadful thing”—and within a few days the Court upheld the legality of the military trial. The Washington Post and the New Republic applauded the ruling, and six of the eight saboteurs were executed less than a week after the guilty verdicts. Whereas “Roosevelt had issued a one-page order and his commission was up and running a few days later,” in the aftermath of 9/11 “it took a half dozen or so Department of Defense lawyers years to craft, clear in the bureaucracy, and publish the many hundreds of pages of rules, procedures, and definitions that international and domestic law, and broader notions of societal justice, demanded for military commission trials in the twenty-first century.”