Jack Landman Goldsmith III (born September 26, 1962) is an American legal scholar. He serves as the Learned Hand Professor of Law at Harvard Law School, where he has written extensively in the fields of international law, civil procedure, federal courts, conflict of laws, and national security law.[2] Writing in The New York Times, Jeffrey Rosen described him as being "widely considered one of the brightest stars in the conservative legal firmament".[3]
In addition, on March 14, 2003, after Goldsmith had been hired to work as a legal adviser to the General Counsel of the Department of Defense, John Yoo wrote a legal opinion at the request of the Department of Defense General Counsel, five days before the US invasion of Iraq, concluding that federal laws did not prohibit torture by interrogators of foreign subjects overseas. (The memo was not revealed until 2008.)[8]
Office of General Counsel of the Department of Defense
By September 2002, Jack Goldsmith had been hired to work as a legal adviser to the General Counsel of the Department of Defense, William J. Haynes II.[3]
Goldsmith accompanied Haynes late that month as one of a large party of senior government appointees who traveled to military detention facilities at Guantanamo, Norfolk, Virginia, and Charleston, South Carolina to see detainees (including two United States citizens) and the conditions for enemy combatants.[9] He had participated in discussions related to treatment.[9]
Office of Legal Counsel, Department of Justice
In October 2003, Goldsmith was appointed to head the Office of Legal Counsel, which provides legal guidance to the US President and all executive branch agencies, including those tasked with the interrogation of enemy combatants. That gave him the base for influencing debates within the Bush administration regarding its conduct of the War on Terror.
In April and May 2004, the Abu Ghraib prisoner torture and abuse scandal broke. In June, the Bybee memo was leaked. Goldsmith considered it to be "tendentious, overly broad and legally flawed."[3] He worked to have the memos changed. Including his challenges of White House staff on issues related to domestic surveillance and trials of terrorists, he was successful in moderating some of what he considered to be the previous "constitutional excesses" embraced by the White House.[3]
On June 30, 2004, Goldsmith withdrew as legally defective the Bybee Memo and the Torture Memos and advised the Department of Defense not to rely on the March 2003 memo. At the same time, he submitted his resignation. Several years later he said that was to try to force the administration to accept his withdrawal of the memo.[3] Office of Legal Counsel legal opinions written in August 2002 related to the government's use of enhanced interrogation techniques, or torture, on individuals detained as enemy combatants. Newsweek reported in 2007 that the CIA had regarded the Bybee memo as a "golden shield" against potential prosecution of officials involved in the program.[10]
However, Goldsmith had been unable to have his office complete what he intended as the replacement legal opinions before he resigned.[11] He said later that he felt that he had lost the confidence of the administration. By December 2004, the replacement counsel at the Office of Legal Counsel had reaffirmed the previous legal opinions.
Goldsmith later said that one consequence of the Office of Legal Counsel's "power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes."[12]
Warrantless wiretapping memos
During Goldsmith's tenure at the Office of Legal Counsel, he wrote at least two legal memos authorizing a program known as Stellar Wind. His memos said that the president has inherent constitutional power in a time of war to monitor Americans' communications without a warrant.
In March 2004, the Office of Legal Counsel concluded the e-mail program was not legal. Acting Attorney General James Comey refused to reauthorize it.[13] On May 6, 2004, Goldsmith wrote in a 108-page memo:
"We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief... that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority" to order warrantless wiretapping—"an authority that Congress cannot curtail.”[13]
Scholarship
Goldsmith has published four books about law and policy, Power and Constraint,Who Controls the Internet,The Terror Presidency, and The Limits of International Law.
His fifth book is more personal: In Hoffa's Shadow: A Stepfather, A Disappearance in Detroit, and My Search for the Truth, published in the fall of 2019. In this memoir, Goldsmith explores who killed labor leader Jimmy Hoffa. He reveals the perennial mystery's connections to both broader American historical and economic trends, and Goldsmith's own family. Goldsmith's stepfather was Charles "Chuckie" O'Brien, who had lived with Hoffa and his family as a child and young adult. He later followed Hoffa into the union, and they remained associated. In 2001, the FBI found Hoffa's DNA in a 1975 Mercury car that O'Brien had borrowed after it was owned by a mobster. He denied Hoffa was ever in the car and said he was not involved in his disappearance that year.
Goldsmith is also an editor of three leading legal casebooks, including Foreign Relations Law,Conflicts of Law, and Federal Courts and the Federal System casebook.
Power and Constraint
This book argues that the presidency after the 9/11 attacks was much more constrained and accountable than conventional wisdom suggests. Goldsmith asserts that the president is constantly under scrutiny and checked inside and outside the executive branch by variously motivated actors—courts and Congress, but also lawyers, inspectors general, ethics watchdogs, journalists, and civil society—who generate information about what the executive branch is doing, who force it to explain its actions, and who are empowered to change these actions when the explanations fail to convince. Goldsmith labels these multiple forms of watching and checking the presidency a "presidential synopticon," and claims that this synopticon reined in the George W. Bush administration's early excesses in the "war on terrorism," creating a consensus on counterterrorism policies by 2008 that explained the Obama administration's then-surprising decision not to change the counterterrorism policies it inherited in material ways. Goldsmith concludes that the presidential synopticon's constraints on the presidency also paradoxically empowers the presidency by making its counterterrorism actions more legitimate. But it also produces "unhappy consequences, including the harmful disclosure of national security secrets, misjudgments by the watchers of the presidency, and burdensome legal scrutiny that slows executive action." Goldsmith discussed the book on The Daily Show with Jon Stewart on April 4, 2012.
The Terror Presidency
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions that were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies, but believes they made a huge strategic mistake by acting unilaterally rather than seeking congressional consent soon after 9/11. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
Goldsmith said he resigned in 2004 largely because he felt he had lost the confidence of administration leaders. He notes that the White House Counsel Alberto Gonzales asked him to remain, while Addington, an influential White House figure, asked which other OLC opinions he intended to overturn. Goldsmith wrote in his book, "Nobody had said no to them before."[14]
Goldsmith also appeared on the Bill Moyers show on September 7, 2007. Moyers asked about the notable incident of his being in the hospital room of Attorney General John Ashcroft after he had been suddenly taken ill the day before. That day Ashcroft had ruled that Bush's domestic intelligence program, Stellar Wind, was illegal. It included provisions for warrantless wiretaps. Gonzales and Andrew Card, White House Chief of Staff, had come to try to persuade Ashcroft to change his mind and withdraw his memo. Goldsmith was there to support Ashcroft. Goldsmith said that, as Gonzales and Card left the room, Mrs. Ashcroft stuck out her tongue at them behind their backs.[15] President Bush re-authorized the program over the formal objections of the Department of Justice.
Soon after, on NOW on PBS, Goldsmith continued to discuss the issues of how the government could deal with enemy combatants. In response to a suggestion that the regular criminal court system could be used to try them, he said, "Another reason you might not want to use the trial system is that the trial system, to be legitimate, has to have the possibility of acquitting someone of a crime." He thought it would be difficult for the government to conduct military trials while withholding evidence on the basis of national security, as it had done in the military commissions and tribunals.[16]
Who Controls the Internet: Illusions of a Borderless World
Goldsmith co-authored Who Controls the Internet with Columbia Law School Professor Tim Wu. The book makes three basic claims: first, in response to the techno-libertarianism that prevailed at the time, it argues that states had many tools to achieve effective control over internet activities within their borders. Second, as a result of state control, the Internet is becoming bordered by geography. The bordered Internet "reflects top-down pressures from governments that are imposing national laws on the Internet within their borders," as well as "bottom-up pressures from individuals in different places who demand an Internet that corresponds to local preferences, and from the web page operators and other content providers who shape the Internet experience to satisfy these demands." Third, while a geographically bordered Internet has many well-known costs, it also has "many underappreciated virtues," including better satisfaction of local preferences, stability, and harm-prevention.
The Limits of International Law
Goldsmith co-authored this book with University of Chicago Law School Professor Eric Posner. The book is mainly an effort to give a descriptive theoretical account of how international law (treaties and customary international law) works, using basic game theoretical models.
Legal scholarship
In addition to his popular writing and books, Goldsmith is one of the country's leading scholars of the executive branch, international and foreign relations law, and Internet regulation having written dozens of academic papers[17] in such journals as The Yale Law Journal and the Harvard Law Review. He has authored or co-authored the following articles, inter alia:
Foreign relations law
"Treaties, Human Rights, and Conditional Consent," 149 U. Pa. L. Rev. 399 (2000)
"The Abiding Relevance of Federalism to U.S. Foreign Relations," 92 Am. J. Int'l L. 675 (1998)
"Sosa, Customary International Law, and Continuing Relevance of Erie," 120 Harv. L. Rev. 869 (2007)
"Customary International Law as Federal Common Law: A Critique of the Modern Position," 110 Harv. L. Rev. 816 (1997)
"Federal Courts, Foreign Affairs, and Federalism," 83 U. Va. L. Rev. 1617 (1997)
"Zivotofsky II as Precedent in the Executive Branch," 129 Harv. L. Rev. 112 (2015)
"Presidential Control over International Law," 131 Harv. L. Rev. 1201 (2018)
"The New Formalism in United States Foreign Relations Law," 70 U. Colo. L. Rev. 1395 (1999)
"Pinochet and International Human Rights Litigation," 97 U. Mich. L. Rev. 2129 (1999)
War and national security law
"Terrorism and the Convergence of Criminal and Military Detention Models," 60 Stan. L. Rev. 1079 (2008)
"Congressional Authorization and the War on Terrorism," 118 Harv. L. Rev. 2047 (2005)
"Obama's AUMF Legacy," 110 Am. J. Int'l L. 628 (2016)
International law
"Law for States: International Law, Constitutional Law, Public Law,"122 Harv. L. Rev. 1791 (2009)
"Obama's Contribution to International Law," 57 Harv. Int'l L.J. (2016)
"The Limits of Idealism," 132 Daedulus 47 (2003)
"Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective," 21 J. Leg. Stud. S115 (2002)
"A Theory of Customary International Law," 66 U. Chi. L. Rev. 1113 (1999)
Executive branch lawyering and the presidency
"Executive Branch Crisis Lawyering and the Best View," Georg. J. Leg. Ethics 261 (2018)
"The Irrelevance of Prerogative Power and the Evils of Secret Legal Interpretation," in Extra-Legal Power and Legitimacy: Perspectives on Prerogative (2013)
"Executive Branch Crisis Lawyering and the Best View," Georg. J. Leg. Ethics 261 (2018)
"The Protean Take Care Clause," 164 Penn. L. Rev. 1835 (2016)
"The President's Completion Power," 115 Yale L.J. 2280 (2006)
Internet regulation
"Against Cyberanarchy," 65 Chi. L. Rev. 1199 (1998)
"The Internet and the Dormant Commerce Clause," 110 Yale L.J. 785 (2001)
Film
The Special Program, a screenplay exploring Goldsmith's experiences in the Department of Justice's Office of Legal Counsel, was sold to The Weinstein Company on December 16, 2013. According to the Spec Scout database, as of November 21, 2014, this project was "no longer set up with the Weinstein Company."[18]
Goldsmith questions a key premise of Martin Scorsese's 2019 film The Irishman due to the information he gathered for his own book about unions in the U.S., his stepfather Chuckie O'Brien, who was an associate of Jimmy Hoffa, and Hoffa's mysterious disappearance.[19]
Abu Zubaydah is a Palestinian citizen and alleged terrorist born in Saudi Arabia currently held by the U.S. in the Guantanamo Bay detention camp in Cuba. He is held under the authority of Authorization for Use of Military Force Against Terrorists (AUMF).
John David Ashcroft is an American lawyer, lobbyist, and former politician who served as the United States Attorney General in the George W. Bush administration from 2001 to 2005. He previously held various positions in Missouri politics; as Auditor of Missouri (1973–1975), Attorney General of Missouri (1976–1985), Governor of Missouri (1985–1993), and as a United States Senator representing Missouri (1995–2001). He later founded The Ashcroft Group, a Washington D.C. lobbying firm.
Waterboarding is a form of torture in which water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the person to experience the sensation of drowning. In the most common method of waterboarding, the captive's face is covered with cloth or some other thin material and immobilized on their back at an incline of 10 to 20 degrees. Torturers pour water onto the face over the breathing passages, causing an almost immediate gag reflex and creating a drowning sensation for the captive. Normally, water is poured intermittently to prevent death; however, if the water is poured uninterruptedly it will lead to death by asphyxia. Waterboarding can cause extreme pain, damage to lungs, brain damage from oxygen deprivation, other physical injuries including broken bones due to struggling against restraints, and lasting psychological damage. Adverse physical effects can last for months, and psychological effects for years. The term "water board torture" appeared in press reports as early as 1976.
Alberto R. Gonzales is an American lawyer who served as the 80th United States Attorney General from 2005 to 2007 and is the highest-ranking Hispanic American in executive government to date. He previously served as Secretary of State of Texas, as a Texas Supreme Court Justice, and as White House Counsel, becoming the first Hispanic to hold that office.
John Choon Yoo is a South Korean-born American legal scholar and former government official who serves as the Emanuel S. Heller Professor of Law at the University of California, Berkeley. Yoo became known for his legal opinions concerning executive power, warrantless wiretapping, and the Geneva Conventions while serving in the George W. Bush administration, during which he was the author of the controversial "Torture Memos" in the War on Terror.
The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies. It drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice. The Office reviews and comments on the constitutionality of pending legislation. The office reviews any executive orders and substantive proclamations for legality if the President proposes them. All proposed orders of the Attorney General and regulations that require the Attorney General's approval are reviewed. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General.
Lawfare is the use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights.
Extrajudicial prisoners of the United States, in the context of the early twenty-first century War on Terrorism, refers to foreign nationals the United States detains outside of the legal process required within United States legal jurisdiction. In this context, the U.S. government is maintaining torture centers, called black sites, operated by both known and secret intelligence agencies. Such black sites were later confirmed by reports from journalists, investigations, and from men who had been imprisoned and tortured there, and later released after being tortured until the CIA was comfortable they had done nothing wrong, and had nothing to hide.
David Spears Addington is an American lawyer who was legal counsel (2001–2005) and chief of staff (2005–2009) to Vice President Dick Cheney. He was the vice president of domestic and economic policy studies at The Heritage Foundation from 2010 to 2016.
Jay Scott Bybee is an American lawyer and jurist serving as a senior U.S. circuit judge of the Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and has taught as a senior fellow in constitutional law at William S. Boyd School of Law. His primary research interests are in constitutional and administrative law.
John Bellinger Bellinger III is an American lawyer who served as the Legal Adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration. He is now a partner at the Washington, D.C. law firm Arnold & Porter, and Adjunct Senior Fellow at the Council on Foreign Relations.
William James "Jim" Haynes II is an American lawyer and was General Counsel of the Department of Defense during much of 43rd President George W. Bush's administration and his war on terror. Haynes resigned as general counsel effective March 2008.
"Enhanced interrogation techniques" or "enhanced interrogation" was a program of systematic torture of detainees by the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA) and various components of the U.S. Armed Forces at remote sites around the world—including Bagram, Guantanamo Bay, Abu Ghraib, and Bucharest—authorized by officials of the George W. Bush administration. Methods used included beating, binding in contorted stress positions, hooding, subjection to deafening noise, sleep disruption, sleep deprivation to the point of hallucination, deprivation of food, drink, and medical care for wounds, as well as waterboarding, walling, sexual humiliation, rape, sexual assault, subjection to extreme heat or extreme cold, and confinement in small coffin-like boxes. A Guantanamo inmate's drawings of some of these tortures, to which he himself was subjected, were published in The New York Times. Some of these techniques fall under the category known as "white room torture". Several detainees endured medically unnecessary "rectal rehydration", "rectal fluid resuscitation", and "rectal feeding". In addition to brutalizing detainees, there were threats to their families such as threats to harm children, and threats to sexually abuse or to cut the throat of detainees' mothers.
Patrick F. Philbin is an American lawyer who served as Deputy Counsel to the President and Deputy Assistant to the President in the Office of White House Counsel in the Donald J. Trump administration. He previously served in the Department of Justice during the George W. Bush administration.
Daniel Bernard Levin served as Acting Assistant Attorney General for the Office of Legal Counsel of the U.S. Justice Department from July 2004 until February 2005. He is notable for having upheld legal opinions during the Bush administration that narrowly defined torture and authorized enhanced interrogation techniques. These opinions were mostly secret during this period, but rumors of abuse of prisoners were widespread, particularly after the 2004 Abu Ghraib prisoner torture and abuse scandal in Iraq. These opinions were repudiated in 2009 by the Obama administration.
"Stellar Wind" was the code name of a warrantless surveillance program begun under the George W. Bush administration's President's Surveillance Program (PSP). The National Security Agency (NSA) program was approved by President Bush shortly after the September 11, 2001 attacks and was revealed by Thomas Tamm to The New York Times in 2004. Stellar Wind was a prelude to new legal structures that allowed President Bush and President Barack Obama to reproduce each of those programs and expand their reach.
EPIC v. Department of Justice is a 2014 case in the United States District Court for the District of Columbia between the Electronic Privacy Information Center (EPIC) and the U.S. Department of Justice (DOJ) where EPIC seeks court action to enforce their Freedom of Information Act request for documents that the Department of Justice has withheld pertaining to George W. Bush's authorization of NSA warrantless surveillance.
The Bush Six are six former officials of the United States government under the presidency of George W. Bush (2001–09) against whom criminal charges were filed in Spain in 2009 by Baltasar Garzón. After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismissed the case for lack of jurisdiction. In closing the investigation, Judge José de la Mata applied reforms to the universal jurisdiction law introduced by the current Conservative government that imposed new limits on the jurisdiction of Spanish courts that require that cases involve suspects who are Spanish citizens or are living in Spain.
The President's Surveillance Program (PSP) is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism. Information collected under this program was protected within a Sensitive Compartmented Information security compartment codenamed STELLARWIND.
A set of legal memoranda known as the "Torture Memos" were drafted by John Yoo as Deputy Assistant Attorney General of the United States and signed in August 2002 by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. They advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of enhanced interrogation techniques—mental and physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and waterboarding—and stated that such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during the "War on Terror".
References
↑ "About". jackgoldsmith.org. Retrieved June 2, 2017.
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