Lawyer Who Withdrew ‘Torture Memos’ Speaks Out

A lawyer who headed the Justice Department’s Office of Legal Counsel says in a new book that he resigned from the job in 2004 in hopes that his withdrawal of two controversial memos on interrogation of terrorism suspects would stick.

Jack Goldsmith, now a Harvard law professor, considered the so-called “torture memos” to be legally flawed because they embrace an expansive view of executive power that fails to take into account the need for support from Congress and the courts, the New York Times Magazine reports.

The memos, written in August 2002 and March 2003, provided the basis for the interrogation of al-Qaida official Abu Zubaydah and the CIA’s aggressive interrogation of terrorism suspects. The White House looked to such opinions as cover for its actions, in effect a “get out of jail free card” when it is unsure whether it is violating criminal laws.

Goldsmith figured his resignation would turn into a big news story if the White House overruled his decision to withdraw the opinions but would receive little notice if it allowed his decision to stand.

“If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told the author of the New York Times article, George Washington University law professor Jeffrey Rosen.

Goldsmith, son of a former Miss Teenage Arkansas, was hired by then-Attorney General John Ashcroft. But he says the most important legal decisions in the fight against terrorism were made not by Ashcroft or the Office of Legal Counsel, but by a “war council” of sorts.

The members included then-White House counsel Alberto Gonzales, Defense Department general counsel William J. Haynes II; then-legal adviser to the vice president David Addington; and John Yoo, a deputy in the Office of Legal counsel. It was Yoo who wrote the two torture memos. (See the September ABA Journal story, “The Architects,” for more information on the group.)

Goldsmith told Newsweek in a Q and A about the book that he was present when then-White House counsel Gonzales and others went to the hospital to try to persuade Ashcroft to approve a warrantless eavesdropping program. The ailing Ashcroft refused.

“I was amazed at the attorney general’s performance, which was extraordinary and really amazingly clear and articulate and powerful and moving,” he says of Ashcroft. “And I was just astonished by the whole thing. It was amazing.”

Goldsmith told Newsweek that the attorney general’s wife also expressed her opinion about the hospital meeting. “Mrs. Ashcroft had been standing beside her husband looking on, in what seemed to be in horror, because he was very sick and it was obviously a very stressful episode,” he says. “And she was obviously very upset. She expressed this as they were walking out of the room by basically sticking her tongue out as an expression of disapproval as to what had just gone on.”

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