Newsweek: Bush appointees revolted over executive

Newsweek: Bush appointees revolted over executive
branch 'overreach'
RAW STORY
Published: January 29, 2006


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Excerpted from Monday's Newsweek (to highlight central
themes in a long article), titled "Palace Revolt: They
were loyal conservatives, and Bush appointees. They
fought a quiet battle to rein in the president's power
in the war on terror. And they paid a price for it. A
NEWSWEEK investigation. By Daniel Klaidman, Stuart
Taylor Jr. and Evan Thomas." Full article here.

#
Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8
former prosecutor who looks a little like Jimmy
Stewart, resigned as deputy attorney general in the
summer of 2005. The press and public hardly noticed.
Comey's farewell speech, delivered in the Great Hall
of the Justice Department, contained all the
predictable, if heartfelt, appreciations. But mixed in
among the platitudes was an unusual passage. Comey
thanked "people who came to my office, or my home, or
called my cell phone late at night, to quietly tell me
when I was about to make a mistake; they were the
people committed to getting it right—and to doing the
right thing—whatever the price. These people," said
Comey, "know who they are. Some of them did pay a
price for their commitment to right, but they wouldn't
have it any other way."

One of those people, NEWSWEEK reports, was former
assistant attorney general Jack Goldsmith.

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Goldsmith and other Justice Department lawyers, backed
by their intrepid boss Comey, had stood up to the
hard-liners, centered in the office of the vice
president, who wanted to give the president virtually
unlimited powers in the war on terror. Demanding that
the White House stop using what they saw as farfetched
rationales for riding rough-shod over the law and the
Constitution, Goldsmith and the others fought to bring
government spying and interrogation methods within the
law. They did so at their peril; ostracized, some were
denied promotions, while others left for more
comfortable climes in private law firms and academia.
Some went so far as to line up private lawyers in
2004, anticipating that the president's eavesdropping
program would draw scrutiny from Congress, if not
prosecutors. These government attorneys did not always
succeed, but their efforts went a long way toward
vindicating the principle of a nation of laws and not
men.

In December 2003, Goldsmith was steering the White
House Official of Legal counsel. He informed the
Defense Department that their March 2003 torture memo
was "under review" and could no longer be relied upon.
It is almost unheard-of for an administration to
overturn its own OLC opinions. Cheney's chief of staff
was beside himself. But his problems with Goldsmith
were just beginning. In the jittery aftermath of 9/11,
the Bush administration had pushed the top-secret
National Security Agency to do a better and more
expansive job of electronically eavesdropping on Al
Qaeda's global communications. Under existing law—the
Foreign Intelligence Surveillance Act, or FISA,
adopted in 1978 as a post-Watergate reform—the NSA
needed (in the opinion of most legal experts) to get a
warrant to eavesdrop on communications coming into or
going out of the United States. Reasoning that there
was no time to obtain warrants from a secret court set
up under FISA (a sometimes cumbersome process), the
Bush administration justified going around the law by
invoking a post-9/11 congressional resolution
authorizing use of force against global terror.

There was one catch: the secret program had to be
reapproved by the attorney general every 45 days. It
was Goldsmith's job to advise the A.G. on the legality
of the program. In March 2004, John Ashcroft was in
the hospital with a serious pancreatic condition. At
Justice, Comey, Ashcroft's No. 2, was acting as
attorney general. The grandson of an Irish cop and a
former U.S. attorney from Manhattan, Comey, 45, is a
straight arrow. (It was Comey who appointed his
friend—the equally straitlaced and dogged Patrick
Fitzgerald—to be the special prosecutor in the Valerie
Plame leak-investigation case.) Goldsmith raised with
Comey serious questions about the secret eavesdropping
program, according to two sources familiar with the
episode. The White House was told: no reauthorization.

Ultimately, a compromise was worked out. But Goldsmith
would eventually be sidelined and leave for Harvard,
taking a post in academia.

Read the full article here.

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