The Terror Presidency by Jack Goldsmith

Author:Jack Goldsmith
Language: eng
Format: epub
Publisher: W. W. Norton & Company
Published: 2009-03-09T16:00:00+00:00

CHAPTER 5

Torture and the Dilemmas of Presidential Lawyering

I learned about the Abu Ghraib abuses for the first time in late April of 2004 from a television news program playing, volume down, in the back corner of Alberto Gonzales’s White House office. “This is going to kill us,” Gonzales quietly muttered, as I and a few other lawyers were assembling to discuss an unrelated matter. While I stared in astonishment at the photos of sadistic violence on the television screen, my mind began to race. Was I indirectly responsible for the abuses? Could I have done something to stop them?

I had begun worrying about the possibility of excessive interrogations about eight weeks after I arrived in the Justice Department in October 2003. During October and November of that year I spent a lot of time in SCIFs—supersecret Sensitive Compartmented Information Facilities that are immune from bugging—being briefed by somber officials from the White House, CIA, and National Security Agency about some of the government’s highly classified counterterrorism programs. Each of the programs, I learned, had been approved by OLC and backed by an OLC opinion.

At first, I was too busy answering a stream of questions from the White House, and getting to know the OLC staff and other lawyers in the Justice Department and around the government, to read these opinions. But then about six weeks into the job, Patrick Philbin, the deputy in OLC who had been responsible for legal advice on the classified programs after John Yoo’s departure and until my arrival, told me about an OLC opinion that was “out there,” that may contain serious errors, and that he had been working to correct. Coming from Philbin this news was alarming. Philbin is a careful lawyer, but he was not squeamish about pushing the President’s power to its limits. He was a longtime friend of Yoo and had worked closely with Yoo on counterterrorism issues since 9/11. Any worries he had about flaws in OLC’s post-9/11 national security opinions were informed and credible.

I began to read the opinion Philbin worried about, and I asked him to bring me any other opinions that he believed might have similar problems. After reading a short stack of opinions, two stood out. The first—entitled “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A”—was the infamous “torture memo” of August 1, 2002.1 This opinion was addressed to Alberto Gonzales from my predecessor, Jay Bybee, but according to press reports and John Yoo’s public comments, it was drafted by Yoo himself. The opinion formed part of the legal basis for what President Bush later confirmed were “alternative” interrogation procedures used at secret locations on Abu Zubaydah, a top al Qaeda operative; Khalid Sheikh Mohammed, the al Qaeda mastermind behind the 9/11 attacks; and other “key architects of the September 11th” and other terrorist attacks.2 The second opinion, from Yoo to Jim Haynes (my former boss in the Pentagon) and dated March 14, 2003, was entitled “Military Interrogation of Alien Unlawful Combatants Held outside the United States.

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