[Senate Hearing 110-200]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-200

       PRESERVING THE RULE OF LAW IN THE FIGHT AGAINST TERRORISM

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 2, 2007

                               __________

                          Serial No. J-110-34

                               __________

         Printed for the use of the Committee on the Judiciary






















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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director
























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    69
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                                WITNESS

Goldsmith, Jack Landman, Henry L. Shattuck Professor of Law, 
  Harvard Law School, Cambridge, Massachusetts...................     5

                         QUESTIONS AND ANSWERS

Responses of Jack Landman Goldsmith to questions submitted by 
  Senators Leahy, Kennedy, Feinstein and Whitehouse..............    38

                       SUBMISSION FOR THE RECORD

Goldsmith, Jack Landman, Henry L. Shattuck Professor of Law, 
  Harvard Law School, Cambridge, Massachusetts, statement........    50
























 
       PRESERVING THE RULE OF LAW IN THE FIGHT AGAINST TERRORISM

                              ----------                              


                        TUESDAY, OCTOBER 2, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 10:09 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Feinstein, Feingold, Schumer, Cardin, 
Whitehouse, Specter, and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I just want you to know, not only do I have 
your book, but I read it. Look at the tags.
    Mr. Goldsmith. Thank you, Senators.
    Senator Specter. I don't need tags. I remember it all.
    [Laughter.]
    Chairman Leahy. I do. I do need them because I don't 
remember as well. I apologize for being late. I periodically 
get these nosebleeds and it started at the worst darned time 
this morning.
    But the subject of today's hearing is one of the most 
fundamental tests that we face as a Nation: can we maintain 
respect for the rule of law and our Constitution in time of 
crises? I think the administration failed the test. The attacks 
of September 11th shook the Nation. The grave threat from 
international terrorism that we experienced that day remains 
real, and our government does have the responsibility to 
protect against further attack. Everybody agrees on that.
    But that's not its only responsibility. The government also 
has to protect our security without doing harm to the liberties 
we value and the vibrant system of checks and balances that the 
founders created to preserve those liberties.
    But rather than working to preserve those checks and our 
constitutional balance, this administration set out to 
accomplish a radical realignment of the powers of the 
government. SCO was an unprecedented expansion of executive 
authority. The administration has used the threat of terrorism 
to justify this expansion, but its genesis was well before 
September 11th.
    The reason why it's important to look at using this as an 
excuse to do away with our liberties--we will face the threat 
of terrorists throughout our lifetime, and our children's 
lifetime, both abroad and at home. One of the greatest 
terrorist attacks in this country was Timothy McVeigh in 
Oklahoma City, a former member of our own armed services and an 
American citizen.
    Now, key members of this administration have long held the 
view that the President should not be encumbered, not by laws, 
not by Congress, not by the courts. To accomplish this vision 
of executive power, the White House set out to limit knowledge 
of important legal decisions to a tiny, powerful cabal of like-
minded lawyers. The group was led by Alberto Gonazales as the 
counsel to the President, and by the counsel to the Vice 
President and now his Chief of Staff, David Addington.
    If you might disagree with these lawyers, then you weren't 
allowed in the discussion. Of course, Congress, at all costs, 
was to be denied any input into critical decisions. Now, there 
is no doubt that the secrecy and insularity and unilateralism 
are powerful tools that have been used before to expand 
executive authority, and secrecy, insularity, and unilateralism 
have become the hallmark of this administration's dealings with 
Congress, with our allies, and with the wider world.
    We have begun to see the great cost this has exacted on 
American values and constitutional principles in our standing 
as we pursue our national interests around the world. We see in 
our system a detention that, rather than being above reproach, 
an example to the world, has lost credibility with our allies, 
and worse than that has become a powerful rhetorical tool for 
our enemies.
    We see it in the terrible abuses of Abu Ghraib, which 
stained us as a country, and which were the direct results of a 
lack of clarity and restraint in the rules about interrogation. 
No matter what we do now to correct it, those pictures will be 
used against the United States by the people who do not support 
us for years and years to come.
    We see that the President chose to violate a surveillance 
law rather than to come to Congress to get it changed, sowing 
seeds of distrust and suspicion for himself, and no doubt for 
many Presidents to come. We see it in the President's cavalier 
use of his pardon power to override a jury verdict that 
convicted a top White House aide of lying to a grand jury and 
the FBI.
    We see it in the White House's efforts to corrupt Federal 
law enforcement by the unprecedented mass firing of U.S. 
Attorneys who this President had appointed in order to install 
cronies and loyalists, and we see it generally in a deplorable 
lack of respect for the liberty of Americans.
    Now, our witness today, Professor Jack Goldsmith, was 
invited, briefly, into this powerful inner circle of lawyers. 
He was a conservative lawyer who, by reading his book, shares 
many of this administration's views about legal policy to fight 
terrorism. I suspect that if Mr. Goldsmith and I sat down, we'd 
find we disagree on a number of issues. I also suspect we'd 
find we do agree on many others.
    But when Mr. Goldsmith because head of the Justice 
Department's Office of Legal Counsel, he was dismayed by what 
he saw. The Office of Legal Counsel, or we call it OLC, is 
small, but it is a critical department, a critical office 
within the Justice Department. It's the office that gives legal 
advice to the rest of the executive branch so that the 
President can, as the Constitution requires, carry out an 
obligation to faithfully execute the laws.
    But Mr. Goldsmith found OLC opinions that, in his words, 
were ``deeply flawed, sloppily reasoned, over broad'' and 
``incautious in asserting extraordinary constitutional 
authorities on behalf of the President.'' He decided to fix 
them. So, I thank Mr. Goldsmith for standing up and insisting 
on putting things right. This was an act of courage. He 
suffered searing criticism and many personal misgivings.
    As both Senator Specter and I have noted, the book, The 
Terror Presidency, that he wrote is a rare window into this 
crucial period. I'm not here to do a book-selling tour, but I 
found it very, very interesting. I also found it a rather 
chilling account of what you saw when you were at OLC.
    I'm going to recommend it to the next Attorney General. I'm 
going to recommend it to whomever the Republican Party and the 
Democratic Party nominate as our candidates for President, if 
they'll take the time to read it, so the same mistakes won't be 
made by whoever is the next President.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman, for scheduling 
this hearing. I commend you, Professor Goldsmith, for writing a 
very important book. It is a survey of the critical issues 
which have faced the country for several decades now, the 
threat of terrorism. And as you have noted, there has to be a 
very careful analysis of the threat, how we meet the threat, 
and how we do that and, at the same time, preserving our 
commitment to civil rights.
    This committee has been very supportive of the executive 
power in the enactment, recommendation, or passing out of 
committee the PATRIOT Act and the PROTECT America Act. But at 
the same time, we have also, I think, been diligent in taking a 
look at very critical issues of civil liberties as a 
counterbalance to what the executive has done. That is the 
traditional role of the Congress.
    In your book, you have treated the major issues. When you 
write about what happened in your disagreement with some 
executive branch members, it is very different from what former 
Attorney General Gonzales told this committee when he said 
there was no disagreement within the executive branch.
    You, on the other hand, point out in your book that when 
you told Attorney General Gonzales and Vice President Cheney's 
counsel that you could no longer certify the legality of ``an 
important counterterrorism initiative'', that the Vice 
President's lawyer responded, as you put it, angrily: ``If you 
rule that way, the blood of 100,000 people who die in the next 
attack will be on your hands,'' hardly a situation where 
there's no disagreement within the executive branch.
    This committee has been especially concerned about what the 
administration has done on habeas corpus, and also concerned 
about what the Congress has done on habeas corpus. I noted in 
your book that you said, upon seeing Hamdi, the subject, the 
individual in a very important Supreme Court decision, a man 
who was detailed, you wrote: ``Something seemed wrong. It 
seemed unnecessarily extreme to hold a 22-year-old foot soldier 
in a remote wing of a run-down prison in a tiny cell, isolated 
from almost all human contact and with no access to a lawyer. 
This is what habeas corpus is for,'' as you wrote it. I believe 
the Supreme Court will reinstate habeas corpus, and that's a 
subject we'll get into in the course of the hearing today.
    Another issue which has received--on the habeas corpus 
matter, this committee has acted, as we did on the terrorist 
surveillance program, and held five hearings on that subject, 
oversight hearings, in the 109th Congress. On habeas corpus, 
Senator Leahy and I have had legislation. It grew from 48 votes 
to 56 the last time it came before the Senate. I think if we 
bring it up again, we will reinstate habeas corpus. At least, 
that will be the will of the Senate. What the President will do 
by way of a veto is probably predictable. Our action may not be 
necessary if the Supreme Court acts.
    Then you pick up the question of the signing statements, 
where the President agreed with Senator McCain as to the scope 
of interrogation. Then after he signed the bill, issued a 
signing statement about ``the law might violate his Commander-
in-Chief powers'' and he might not always act in compliance 
with it.
    Again, legislation has been introduced to give the Congress 
standing to go to court, to overturn the President's signing 
statements, because not withstanding what the statute says 
before signed, the executive branch will follow the 
instructions of the President.
    Well, in the midst of all of this we are aware of the grave 
difficulties that the executive branch faces in meeting the 
threat of terrorism and staying on the correct side of the law. 
I thought your quotations of CIA Director Hayden were very 
interesting, where you quote Director Hayden saying that he was 
``troubled if not using the full authority allowed by law''. 
After 9/11, he was going to ``live on the edge''. The analogy 
was that he would take his spikes to a position where they 
would have chalk on them, he would go right up to the line, and 
that your job was to make sure the President could act right up 
to the line.
    I was interested in your comment that when FBI Director 
Mueller presents to the President daily the threat list, that 
he gives him a matrix. The matrix includes warnings, as you 
note, extracted from tens of billions of foreign phone calls 
and e-mails that fly around the world. That is a facet that 
very few understand, when you talk of tens of billions of phone 
calls analyzed in time for an overnight report, showing the 
difficulties of our intelligence system in tracking the 
threats.
    Well, this is an ongoing problem. We want to have an 
executive, a President with sufficient power, but we want to 
have a President who still recognizes fundamental 
constitutional rights. The oversight by this committee, I 
think, is very, very important in maintaining that balance, so 
I'm pleased that we have such a knowledgeable witness here 
today to shed some light on the important subject. I seldom 
disagree with Senator Leahy, but I think your book is going to 
be a best seller, especially after it's promo'ed on C-SPAN.
    Chairman Leahy. I didn't say it wasn't going to be, but 
neither you nor I have the authority of an Oprah Winfrey to 
promote books.
    [Laughter.]
    Senator Specter. Well, I know I don't, but I wouldn't say 
that about you, Mr. Chairman.
    Chairman Leahy. Professor Goldsmith, please raise your 
right hand.
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. Thank you.
    Professor, please go ahead. Again, I apologize for the 
delay in starting. Go ahead with whatever statement you want, 
and then we'll open it up to questions.

    STATEMENT OF JACK LANDMAN GOLDSMITH, HENRY L. SHATTUCK 
 PROFESSOR OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Goldsmith. Thank you, Mr. Chairman, Senator Specter, 
and members of the committee, for inviting me today. I 
submitted a written statement and I'm not going to go through 
that. I'm just going to make a few brief remarks.
    Chairman Leahy. That will be part of the record.
    Mr. Goldsmith. Thank you.
    [The prepared statement of Mr. Goldsmith appears as a 
submission for the record.]
    Mr. Goldsmith. And thank you for your kind words about my 
book.
    So the topic of today's hearing is preserving the rule of 
law in the fight against terrorism. This is something that I've 
thought a lot about in the last three or 4 years, both in my 
time in the government and my time reflecting on my time in the 
government as a law professor.
    The first institution that must be focused on, obviously, 
in answering this question is the presidency, the President, 
because the President, under the Constitution, has two duties 
that are relevant here. First, he has the duty to keep the 
country safe. It's the President's responsibility in the first 
instance to keep the country safe and to protect national 
security. And the President also has a duty to take care that 
the laws are faithfully executed, so he has a duty to comply 
with the law.
    And sometimes, often, it's difficult to do both. Not 
impossible, but difficult. Related to those two duties there 
were, in my experience, to pressures that were constantly at 
play and at fight with one another behind the Bush 
administration's counterterrorism policies.
    The first pressure was, as Senator Specter alluded to, the 
extraordinary pressure to prevent a second attack on the 
homeland. It is hard to overstate how frightening it is to read 
the threat reports that the President reads every day, not only 
because of what they portend, but also because, as the 9/11 
Commission said and as many people have said, the government 
lacks the full information that it thinks it needs to thwart 
the terrorists. It doesn't always have the information that it 
needs to take the steps to check the terrorist threat.
    The combination of these fearful threat reports and the 
enormous and grave responsibility that the executive branch has 
for preventing a second attack, and the sometimes lack of 
information and tools necessary to thwart the attack, or at 
least it seems that way, leads the administration to--and I 
think any presidency.
    I think this was true of President Lincoln and President 
Roosevelt as well in analogous circumstances--push as hard as 
it can to do everything it can to prevent another attack, and 
that includes operating right up to the edge of the law, when 
it's appropriate, when it's thought that that's useful and 
helpful to stop a terrorist attack.
    So on the one hand there's this unrelenting pressure to do 
everything possible to stop another attack, and there's the 
knowledge that when an attack comes, the President's going to 
be responsible and there's going to be another 9/11 Commission, 
and the 9/11 Commission is going to find the needle in the 
haystack that the executive branch missed and blame the 
President for not taking steps to stop the attack. That's on 
the one hand.
    On the other hand, there's the law and the need to comply 
with the law. In my experience, people in the administration, 
throughout the administration, did try to comply with the law. 
Some people had, as we can probably discuss this morning, 
different views of what the law required, but some people said 
that the Bush administration has been indifferent to law, but 
in my experience it's been preoccupied with law. There are 
lawyers in every meeting related to counterterrorism policy.
    The Department of Justice has probably issued more opinions 
related to this war than all of its opinions related to wars in 
the past. So at the same time that the administration is pushed 
to try to stop the attack, it finds itself bumping up against 
laws, lots of laws, sometimes criminal laws, and sometimes 
vague criminal laws that, frankly, frighten people because they 
don't want to go beyond the laws and they worry about being 
prosecuted, or going to jail, or being investigated down the 
road.
    So these are the tensions that I saw playing out every day: 
this fear of another attack which led the administration to do 
as much as it could; this fear of violating the law, which was 
a cause of the pre-9/11 lawyer-induced risk aversion that many 
people complained about. Trying to manage that tension of 
complying with the law, sometimes vague laws, and keeping the 
country safe is very, very difficult. It is the central 
challenge of the topic of this hearing, which is abiding by the 
rule of law in the fight against terrorism.
    In my statement I talked about some of the lessons--eight 
lessons that I think--at least eight lessons that can be 
learned from the effort to manage this tension, and frankly 
some mistakes in managing this tension in the last 6 years.
    So I just want to close by saying--I won't repeat those 
here because there's not time, but I just want to close by 
saying this is not a problem that just faces this presidency. 
This is a problem that Lincoln faced, and it's a problem that 
Roosevelt faced. It's a problem that President Kennedy faced. 
It's a problem that a lot of Presidents have faced, and it's a 
problem that the next President is going to face, and 
Presidents for the foreseeable future. It seems to me that the 
first steps that the country needs to take--there are two 
steps, at least, basic steps that the country needs to take in 
managing this problem.
    The first, is to acknowledge the problem and acknowledge 
the difficult position that the executive branch is sometimes 
in. The second, and main lesson, I think, over the last 6 years 
is that the institutions of our government have to work 
together to manage the problem. It's nothing something that one 
institution alone can do.
    Thank you, sir.
    Chairman Leahy. Thank you, Professor. In fact, your last 
comment--I find myself more and more, in holding these 
hearings, that we're doing it really for the next President. In 
some ways, I think one of the reasons the hearings have been as 
substantive is that we realize that we are at a time when 
nobody knows who the next President will be, or what political 
party the next President will be from.
    I do have a somewhat disturbing thought, that this 
administration doesn't listen very much to what's going on in 
these hearings. Certainly the former Attorney General gave that 
impression, although the American public did, thus, he's gone. 
But you're absolutely right in your history.
    The history of Lincoln and habeas corpus during the Civil 
War certainly--even now they're beginning to declassify some of 
the things from World War II, the Cuban Missile Crisis, and 
others. But throughout it all, the American public thought that 
basic rights were going to be there and you could raise 
questions.
    Now, you talk in your book about your efforts at OLC to put 
the President's program of warrantless wiretapping--and we 
refer to it as TSP--on what you call a legal footing. You 
describe it as a legal mess. You say fixing it was, to use your 
words, ``by far the hardest challenge you face in government.''
    You also say, in connection with the TSP, that David 
Addington and other top administration officials dealt with 
FISA, the Foreign Intelligence Surveillance Act, the way they 
dealt with other laws they didn't like: they blew through them 
in secret based on flimsy legal opinions that they guided 
closely so no one could question the legal basis for the 
operations. In other words, we'll decide we don't have to 
follow the law, but we're not going to tell you why we decided 
we don't have to follow the law, so you can't really disagree 
with us.
    Now, I know most details about TSP and the legal issues 
that you address remain classified, but the matter is of great 
importance to this committee and the American people. I do not 
want you--obviously, in an open session we're not going to ask 
you to go into anything classified, but try to give the kind of 
detail you can in open session.
    Is it fair to say that, in your opinion, the warrantless 
wire tapping program, or at least significant parts of it, were 
either illegal or without a legal basis?
    Mr. Goldsmith. Thank you, Senator. As I said in my book, 
there were--in my opinion it was a legal mess. It was the 
biggest legal mess I've ever encountered. And the answer to 
your question is, with regard--I don't want to get into labels 
as to--I'm worried about whatever label we attach to things, 
because as we've seen in prior hearings, some people think 
certain labels refer to different things, and I can't talk 
about the things that the labels are referring to. But I will 
say that there were certain aspects of programs related to the 
TSP that I could not find legal support for.
    Chairman Leahy. Well, did you make others in the Justice 
Department or the White House aware of your views, that you did 
not find these aspects legal?
    Mr. Goldsmith. Yes, sir.
    Chairman Leahy. What happened then? Did they immediately 
embrace you and say, we'll walk with you into the sunshine?
    Mr. Goldsmith. No, that is not what happened. The senior 
leadership in the Department agreed with me and the White House 
didn't.
    Chairman Leahy. Well, let me ask you about this. You say 
the senior leadership agreed with you. Did you believe that--
and maybe I should preface it this way. As you know, FISA, the 
Foreign Intelligence Surveillance Act, has been amended more 
than 30 times, 7 or 8 times since 9/11, and in all but one 
instance with strong bipartisan support of the Congress. Did 
you believe that it would have been possible to accomplish what 
the administration wanted to do legally if they had been 
willing to work with the FISA court and Congress?
    Mr. Goldsmith. Yes, sir, I do.
    Chairman Leahy. See, that, to me, is sort of the tragedy of 
the whole thing. We've had all these investigations. We've had 
people who have been forced out of office. We've had others who 
have resigned rather than answer subpoenas, and we still have a 
lot of subpoenas out. We have a concern among many in the court 
whether this administration followed the law, and yet with any 
kind of cooperation it could have been done. I, along with 
Senator Specter, have reviewed the program that we're talking 
about. There's no question in my mind we could have written the 
FISA Act in such a way, legally, to do it.
    Now, you write about the extraordinary secrecy with which 
the administration treated legal opinions related to terrorism. 
You say that the group was allowed to see opinions about the 
warrantless surveillance program. It was so small that not even 
the NSA's, the National Security Agency, General Counsel, the 
chief lawyer, in other words, for the agency that operated the 
program, was permitted to see the legal justification for the 
program.
    Why the extreme secrecy? In other words, the person who has 
to make the legal determination for the NSA, whether they could 
do it, is told, yes, you can do it because it's legal, but 
we're not going to tell you why.
    Mr. Goldsmith. So the question is why the extreme secrecy? 
Well, there are two possible explanations. One possible 
explanation, the reason for the secrecy was to make sure that 
the information did not leak to the public. The second possible 
explanation was that they did not want the legal analysis 
scrutinized by anyone even inside the executive branch.
    With regard to a lot of the secrecy with some of the 
issues, I wasn't sure which of the two interpretations was 
correct, but I think it can only be the latter, that they just 
didn't want the opinion scrutinized with regard to the TSP 
matter.
    Chairman Leahy. Was that because they didn't think that it 
would stand up to legal scrutiny?
    Mr. Goldsmith. I don't know.
    Chairman Leahy. Did it have a negative effect on the 
quality of the legal advice the administration was getting?
    Mr. Goldsmith. There's no doubt that the extreme secrecy, 
not showing--not getting feedback from experts, and not showing 
it to experts, and not getting a variety of views, even inside 
the executive branch, led to a lot of mistakes.
    Chairman Leahy. When you write ``OLC'', I'm trying to think 
who did have access and legal jurisdiction. Did it include the 
head of OIPR? That's the office in charge of intelligence and 
FISA policy.
    Mr. Goldsmith. I believe so, by the time I arrived.
    Chairman Leahy. Did it include the Deputy Attorney General, 
James Comey?
    Mr. Goldsmith. It did eventually, yes, sir.
    Chairman Leahy. It did eventually?
    Mr. Goldsmith. Yes, sir.
    Chairman Leahy. It didn't initially?
    Mr. Goldsmith. No, sir.
    Chairman Leahy. And the Deputy Attorney General, who has to 
act on such things if the Attorney General is out of pocket or 
in the hospital--
    Mr. Goldsmith. Right. Right. It was one of the things that 
I insisted on, and with the approval of the Attorney General, 
after I started working on the issues.
    Chairman Leahy. Now, this committee has requested access to 
these legal opinions on a number of occasions. We're doing this 
to carry out our legislative responsibilities. We've even 
subpoenaed them. Do you believe these documents would be useful 
to this committee as we try to legislate on electronic 
surveillance?
    Mr. Goldsmith. I think it would be useful. I don't know if 
you'd need to have the documents, but I certainly think it 
would be useful to understand the legal analysis of the 
executive branch, so you can understand how the laws you enact 
will be interpreted.
    Chairman Leahy. Thank you.
    In just a moment we're going to go to Senator Specter, then 
to Senator Feinstein, Senator Sessions, Senator Feingold, 
Senator Schumer, Senator Cardin, and others if they come in.
    Go ahead.
    Senator Specter. Professor Goldsmith, on the terrorist 
surveillance program, you say that there were some aspects that 
you could not find legal. What can you tell us about he 
incident in Attorney General Ashcroft's hospital room? You 
write in your book that Mrs. Ashcroft stuck out her tongue at 
Attorney General Gonzales and Chief of Staff Andrew Card when 
they left the room. What happened to provoke that?
    Mr. Goldsmith. Just to make the record clear, that 
particular statement is not from my book, sir. It's from an 
interview, I believe. But I did say that, certainly. So would 
you like to know about what happened in the hospital room?
    Senator Specter. That's a starter.
    Mr. Goldsmith. OK. Well, I'll start, and if you want more 
detail I can try to give it to you. The issue was a very highly 
classified program on which I had advised--that I had been 
reviewing as the head of the Office of Legal Counsel, and I had 
been--kept the Deputy Attorney General, once he was read in, 
and the Attorney General informed.
    Senator Specter. So what constitutional legal principle did 
you think was violated by the program?
    Mr. Goldsmith. What I said was--again, with the hospital 
scene--I can't talk about what that program was. I can't--
others have said that it was the TSP program. I'm just going to 
call it a highly classified program, if I could. But do you 
want me to--do you want to know about--I'm not allowed, also, 
either to get into the legal analysis. The government has 
forbidden me from talking about the legal analysis.
    Senator Specter. Now, wait a minute. You might not be able 
to tell us about classified material. You might not be able to 
tell us about what you told the President or his subordinates. 
But I think you can tell us what constitutional law principle 
was violated.
    Mr. Goldsmith. Well, that's--unfortunately the executive 
branch has taken the view, and unfortunately I'm bound by this 
by contract and law.
    Senator Specter. That you can't even say what 
constitutional law principle was violated?
    Mr. Goldsmith. They've told me that I'm not allowed to talk 
about the legal analysis.
    Senator Specter. OK. Let's move to something perhaps you 
can talk about. You wrote in your book that when you saw Hamdi 
you said to yourself, ``that's what I thought habeas corpus was 
for.'' Is there any doubt that a constitutional right to habeas 
corpus is as broad as the statutory right to habeas corpus, as 
defined and amplified by Justice Stevens in Rasul?
    Mr. Goldsmith. I'm not sure that that's always true, 
Senator. I'm not sure. I mean, Congress might enact a statute--
a statutory habeas jurisdiction that went further, for example, 
extra-territorially.
    Senator Specter. OK. Never mind the theory.
    Mr. Goldsmith. OK.
    Senator Specter. How about in Rasul? As to Rasul--
    Mr. Goldsmith. Are you asking me--
    Senator Specter. Didn't Stevens in the court say, going 
back to ``John at Runnymede'', as he put it, and the tradition 
of habeas corpus? Of course, Attorney General Gonzales said 
habeas corpus wasn't in the Constitution. May the record show a 
smile. You can at least smile. Even though the Constitution 
says you can suspend habeas corpus only in time of invasion or 
rebellion.
    But as to Rasul, wasn't the court saying--didn't the court 
say that the constitutional right to habeas corpus was as broad 
as the statutory right?
    Mr. Goldsmith. I believe that--well, I would say this, that 
the Rasul court definitely extended--interpreted the statutory 
habeas corpus jurisdiction to extend to Guantanamo Bay. I don't 
think--it did talk about the constitutional right to habeas 
corpus, but I don't believe that it ever said--it may have, I 
don't recall--that the two were co-extensive. But if you're 
asking me whether I think the Writ of Habeas--the 
constitutional writ extends to--I'm not sure quite what the 
question is, Senator. About the scope of the constitutional 
habeas corpus?
    Senator Specter. The question again, to repeat it, is 
didn't Justice Stevens in Rasul say, as applied to Rasul, that 
the constitutional right was co-terminus with the statutory 
right?
    Mr. Goldsmith. That's not exactly the way I would have read 
it. I think that the holding of the opinion was about the 
statutory right.
    Senator Specter. Now answer my question.
    Mr. Goldsmith. I don't believe--I don't recall him saying--
I know he discussed the constitutional right. I know that the 
court held that the statutory right--
    Senator Specter. You don't recall? Would you take another 
look at the case and give us a written response?
    Mr. Goldsmith. Yes, sir.
    Senator Specter. OK.
    On signing statements, you reference Senator McCain's 
agreement with the President, and then the President issuing a 
signing statement saying that it might infringe on his Article 
2 powers and he might not observe it as it would apply 
prohibiting cruel, inhuman, or degrading treatment, that that 
would not be a definition he would stand by.
    The President did the same thing after we carefully 
negotiated the PATRIOT Act as to the oversight that this 
committee would have, and then he issued a signing statement 
saying he felt free to disregard that commitment.
    Legislation is pending to give the Congress standing to go 
to court to get the court to say that the President's signing 
statement is inconsistent with the constitutional provision 
which says legislation is presented and he either signs it or 
vetoes it. Do you think that that is a sound approach to try to 
deal with that issue?
    Mr. Goldsmith. I don't necessarily think it's a sound 
approach, Senator. I'm not sure that such legislation would be 
constitutional because I'm not sure there--there's actually a 
case in controversy if the President--because you don't know 
whether the President--it's just a statement. You don't know 
whether the President's acting on it or not.
    I will say that I think that that signing statement was 
extremely imprudent after there had been--as I talk about in my 
book, after there had been these negotiations and there seemed 
to have been an agreement on this very difficult issue, to turn 
around and suggest that it wouldn't be applied in some 
circumstances struck me as extremely imprudent.
    But signing statements don't necessarily have any effect, 
they're just statements. What matters is--and in my experience, 
what matters is whether the signing statement gets turned into 
a directive to the bureaucracy to act in a certain way.
    Senator Specter. Well, Professor Goldsmith, how can you say 
a signing statement has no effect when the vast executive 
branch employees are directed to follow it, and if they do 
follow it, where the legislation prohibits interrogation which 
is cruel, inhuman, or degrading, but they are following orders 
and are protected?
    Mr. Goldsmith. Senator, as I was saying, it's not the case 
that every signing statement--indeed, in my experience most 
signing statements--were not operationalized into action at the 
bureaucratic level.
    Senator Specter. How do you know that?
    Mr. Goldsmith. Just, in my experience at the Office of 
Legal Counsel, that was what I witnessed.
    Senator Specter. I have one final question. That is, you 
talk about retroactive discipline and that the executive branch 
officials--that they might be summoned into a court and face 
enormous attorneys' fees, face their reputation--and are not as 
brave as General Hayden. As you characterized him, he's going 
to have white chalk on his spikes because he's going to go 
right up to the line.
    But to what extent can you specify the intensity of that 
concern by the executive branch officials to be worried about 
whether they'll be subpoenaed, as Kissinger was, or hauled into 
court--some foreign court, perhaps--as a violation of human 
rights?
    Mr. Goldsmith. In my experience as head of the Office of 
Legal Counsel, worry that some court, or judge, or prosecutor, 
or investigator down the road would interpret these criminal 
laws differently than the administration did and hold them 
criminally liable, was a central, prevalent concern in the 
administration.
    Senator Specter. A real fear?
    Mr. Goldsmith. A real fear. Yes, sir.
    Senator Specter. Thank you very much, Professor Goldsmith.
    Mr. Goldsmith. Thank you.
    Chairman Leahy. Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman. And 
thank you very much for coming, Mr. Goldsmith.
    I want to begin going back to page 142 of your book where 
you describe the fact that you were there for 6 weeks and an 
attorney by the name of Philbin, who you very much respected, 
told you that there were some opinions that were controversial, 
and out of those opinions which you read there were essentially 
two: one was the Bybee terror memo, and the second was a memo 
from you to Jim Haynes.
    Both of these memos, I believe, took our country down a 
very dark path, a path on which we are still walking. You end 
the section with this on page 144: ``The message of the August 
1, 2002 OLC opinion was indeed clear: violent acts aren't 
necessarily torture. If you do torture, you probably have a 
defense. And even if you don't have a defense, the torture law 
doesn't apply if you act under color of Presidential authority.
    CIA interrogators and their supervisors, under pressure to 
get information about the next attack, viewed the opinion as a 
'golden shield', as one CIA official later called it, that 
provided enormous comfort. Describe that time to us. Describe, 
if you can, why wasn't the UCMJ the effective vehicle? Why was 
it so necessary to go beyond that?
    Mr. Goldsmith. To go beyond the UCMJ?
    Senator Feinstein. Yes.
    Mr. Goldsmith. Well, I think that the UCMJ only applies to 
the military.
    Senator Feinstein. I understand that.
    Mr. Goldsmith. Right. Oh, I see.
    Senator Feinstein. But taking the basic tenet--
    Mr. Goldsmith. So why didn't we apply the--
    Senator Feinstein. Yes. Yes.
    Mr. Goldsmith.--UCMJ to the other agencies of the 
government, and why didn't we use the military standards and 
limitations on--
    Senator Feinstein. That's correct.
    Mr. Goldsmith. Right.
    Senator Feinstein. Which have clearly met the Common 
Article 3--
    Mr. Goldsmith. Right.
    Senator Feinstein.--as well as the convention against 
torture.
    Mr. Goldsmith. So this is speculation, because I wasn't 
there in 2002. But--in the summer of 2002. But I believe that 
the answer is what I said at the beginning, which is that--and 
this is basically what George Tenant said in his memoir, that 
there was enormous pressure to get information. In the summer 
of 2002, the threat reports were the most frightening ones 
since 9/11. They had in custody a top Al Qaeda official.
    I'm just telling you what's in George Tenant's memoir. They 
thought that they needed to do everything they could to try to 
get that information, because as someone told me at the time, 
they were sure there were going to be bodies in the streets of 
Washington and they thought that the person had that 
information, and so I think that they thought that they needed 
to push as far as they could go under the law.
    Senator Feinstein. What did you think when you heard that?
    Mr. Goldsmith. When I heard that this was their--and this 
is me speculating based on what--the kinds of arguments I heard 
once I got there. I mean, I appreciated--the executive branch, 
I appreciate, and in some sense shared, the unbelievable 
pressure to do everything possible to keep Americans safe. It 
was a good faith belief. It was genuine concern, it was genuine 
fear. It was grave responsibility, and that's what led them to 
push to the edges of the law. And it's an understandable 
sentiment and it's a sentiment that many other Presidents have 
shared. The difficulty was how they went about doing it, I 
think.
    Senator Feinstein. Well, if you take that to its logical 
continuum, we are now faced with an incarceration facility in 
Guantanamo, outside of the mainland of the United States but 
U.S. territory, effectively where somebody can be held 
essentially forever without seeing a lawyer, as both Senators 
Leahy and Specter have been so eloquent about, essentially 
suspending the constitutional right of habeas corpus. How do 
you view that? What would you suggest to us, legally, be done?
    Mr. Goldsmith. Thank you, Senator. A couple of things. 
First, it was the Congress, actually, that eliminate the 
statutory habeas corpus jurisdiction. The court, in Rasul, held 
that habeas corpus--
    Senator Feinstein. Are you speaking about the Military 
Commissions bill?
    Mr. Goldsmith. Yes, I am.
    Senator Feinstein. Which some of us did not vote for.
    Mr. Goldsmith. The Military Commissions Act. I don't know 
who voted for it, but I'm just telling you it was the Congress 
that eliminated statutory habeas corpus jurisdiction over 
Guantanamo. Here's what I think should be done about it, for 
what it's worth. We have a very serious problem. We've got 
dangerous terrorists that, if we release, they will do bad 
things to the country. That's what the executive genuinely 
believes, and I believe them.
    And we're trying to use a military system that was 
basically designed for a different kind of war, which is 
military detention, based just on, basically, group membership. 
The detainees do have a lot more procedures than the laws of 
war require, frankly. They do have lawyers in review in habeas 
corpus. They've been given lawyers. At least in the fights for 
habeas corpus, they've been given lawyers. They have direct 
review to the DC Circuit, and they have other rights.
    But I agree with you. I don't think this is enough. And I 
also don't think it's enough just for Congress to restore 
habeas corpus, because all that does--with regard to the 
detainees in Guantanamo, I think the Congress needs to step up 
to the plate and craft a system, a fair, safe, secure system, 
of long-term detention akin to other forms of long-term 
administrative detention.
    I do not believe that Congress should just shift the 
responsibility for making the very hard tradeoffs it's going to 
take to craft such a system to the courts, which is in effect 
what you do when you say to the courts, you decide this either 
on direct review under the Detainee Treatment Act, or you 
decide this under habeas corpus. I think that's the role.
    Justice O'Connor spoke eloquently about this in her West 
Point speech when she said that it's not the Supreme Court's 
job to do counterterrorism policy. So I believe that it's a 
perfect opportunity for Congress to step up to the plate, not 
just on habeas corpus, but on the substance of the type of 
detention regime we need--the kind of sensible and durable 
detention regime we need going forward.
    Senator Feinstein. Thank you. When testifying before the 
committee, Kyle Sampson stated that he had a conversation with 
the Office of Legal Counsel about whether immigration judge 
appointments were subject to the civil service that are 
applicable to other positions, and he said he did. He said he 
thought he spoke with you on this topic. Did he?
    Mr. Goldsmith. With me?
    Senator Feinstein. Yes.
    Mr. Goldsmith. I do not recall that. And he might have, but 
I have no recollection of that.
    Senator Feinstein. So you're saying he did not talk with 
you?
    Mr. Goldsmith. I'm saying I do not remember him talking to 
me about that.
    Senator Feinstein. OK.
    Would you please go to the hospital room that Senator 
Specter started to ask you about and quickly give us a 
statement of facts as you saw them, and exactly what happened, 
what your concern was, and why you were there?
    Mr. Goldsmith. Yes. It was a classified program that my 
office had been reviewing around the clock for several months. 
There was a--the program had to be authorized on Thursday, 
March 11th. The week before, after months of work, I determined 
that I could not find a legal basis for certain aspects of the 
program. I had been informing the Attorney General and the 
Deputy Attorney General for a while about this.
    At about the time I made this decision, the Attorney 
General became very ill, so Jim Comey became the Acting 
Attorney General. To make a long story short, he advised the 
White House about the Justice Department's decision. Just fast-
forwarding to Wednesday, what happened was, as Jim Comey 
testified, he got word that two people from the White House, 
Judge Gonzales and Andrew Card, were coming to seek to, in 
effect, have the Attorney General overrule Jim Comey.
    And so Jim Comey rushed to the hospital. He, through the 
command center at the Justice Department, contacted me since it 
was my legal analysis, essentially, that was at the bottom of 
all this. I rushed to the hospital. We rushed into the room. We 
arrived a few minutes before Mr. Card and Mr. Gonzales did. I'm 
rushing through this quickly, but I'm happy to tell you more 
details if you'd like.
    The Attorney General looked terrible. I hadn't seen him in 
a week, but he'd lost a lot of weight. I believe he'd had an 
operation the day before. He looked very weak, very tired, and 
ashen and he didn't seem to have any strength at all. But a 
couple of minutes after we entered the room, Mr. Gonzales and 
Mr. Card entered the room. Only Mr. Gonzales spoke.
    He asked the--Mr. Ashcroft--he asked how he was doing, and 
then he asked--he basically said he was there to seek 
authorization for the program, at which point Attorney General 
Ashcroft sort of lifted himself off the bed, and color came 
into his cheeks and he sort of came to life, and he gave just a 
couple of minutes' speech in which he said that he didn't--in 
which he said he shared the Justice Department's concerns, the 
concerns that Mr. Comey and I had conveyed.
    He said he didn't appreciate being visited in the hospital 
under these circumstances, and he said that Mr. Comey, in any 
event, was the Acting Attorney General. That was it. He fell 
back into the bed and looked terrible again. Then the two 
gentlemen left the room.
    Chairman Leahy. Thank you.
    Senator Feinstein. My time is up.
    Chairman Leahy. Just so I make sure I fully understand 
this, he made it very, very clear that Mr. Comey was the Acting 
Attorney General?
    Mr. Goldsmith. Yes.
    Chairman Leahy. And under the law, do you have any question 
but that he was Acting Attorney General in these circumstances? 
An ill, hospitalized Attorney General, that this is exactly the 
circumstance where the Deputy becomes the Attorney General as 
far as all legal abilities?
    Mr. Goldsmith. Yes. Yes. That's correct, sir.
    Chairman Leahy. Thank you.
    Senator Sessions?
    Senator Sessions. Did Attorney General Ashcroft continue 
that view, that the Department of Justice's view was justified?
    Mr. Goldsmith. To my knowledge, yes, sir.
    Senator Sessions. I think so, too. My impression is, and 
I've said about the new Attorney General nominee, what is so 
critical at this juncture in our country's history is an 
Attorney General who can articulate to the White House if 
they're overreaching or in error, and then if they do things 
that are correct, to effectively defend them before the 
Congress and the court of public opinion. I have been troubled 
that we have not had that, and I'm hoping the new Attorney 
General nominee can fulfill that role.
    Mr. Goldsmith, with regard to your comments about getting 
up to the--utilizing going up to the line, it's a phrase I've 
used in our committee. The President looked the American people 
in the eye and said, ``I'm going to use every power I've been 
given to defend this country.'' Of course, that does not mean 
he's entitled to break the law. I know you agree, and I 
certainly agree. But I do agree that at the time of the 9/11 
attacks, we were there and we were facing utilizing the full 
powers given to the executive branch, law enforcement, the CIA, 
and our military was legitimate.
    With regard to prisoner interrogations, prior to Hamdan, 
wasn't it reasonable to conclude that the Geneva Conventions 
did not apply to persons who were unlawful combatants?
    Mr. Goldsmith. I believe that it was. Yes, sir.
    Senator Sessions. So I think, Mr. Chairman and others, we 
need to remember that. We are now--in the Armed Services 
Committee, we have got a team of investigators going back and 
investigating military personnel and interrogators based on 
standards that became clear by the Supreme Court later, but 
weren't clearly particularly at the time. Prior to that, 
Congress had spoken with regard to torture and what was 
permissible and not permissible, had it not, Mr. Goldsmith?
    Mr. Goldsmith. Yes, sir. There was a criminal torture 
statute.
    Senator Sessions. In fact, my understanding is, the 
Chairman and others voted for it in 1994, before I came to this 
Senate, and it declared that torture meant acting under cover 
of law, specifically intended to inflict severe physical or 
mental pain or suffering, and that mental pain or suffering 
means prolonged mental harm caused or resulting from 
intentional threats and so forth, and threat of imminent death, 
and those kinds of things.
    So it was pretty clear that with regard to a reasonable 
interpretation of what should be done with those who are 
unlawful combatants, not wearing uniforms, using bombs, killing 
people, innocent men, women and children as a matter of policy, 
would that have been the controlling authority if the Geneva 
Conventions didn't apply?
    Mr. Goldsmith. It was the controlling authority at the 
extreme, depending on who was doing what and where. There may 
have been other authorities, but that was the controlling--
    Senator Sessions. Perhaps the authority depending on where. 
But the Congress had spoken on that.
    Mr. Goldsmith. Congress has spoken--
    Senator Sessions. This was a congressional definition and 
prohibition of what torture was, and it didn't prohibit any 
stress being placed on prisoners, it didn't prohibit 
segregation of prisoners. It prohibited severe physical or 
mental pain and suffering. So now if that's the situation--
    Chairman Leahy. I'm sorry. I didn't know whether the 
Professor answered the question.
    Mr. Goldsmith. I didn't know that there was a question. I'm 
sorry.
    Senator Sessions. Well, would you agree or disagree--
    Mr. Goldsmith. That's what the statute says. Yes, sir.
    Senator Sessions. Right. So now you make such a good point 
in your book and in your statement about people being second 
guessed. You note this in your statement: ``Many people believe 
the Bush administration had been indifferent to these legal 
constraints in the fight against terrorism. In my experience, 
the opposite is true. The administration has paid scrupulous 
attention to law.''
    The CIA had more than 100 lawyers. Everybody was worried 
about being a harbor for some spectacle committee and having to 
defend all this, so this is what they do. So let me go back to 
the question, and rightly or wrongly, morally or immorally, the 
controlling statute, it appeared until Hamdan, which made 
Common Article 3 of the Geneva Conventions applicable even to 
unlawful combatants, was a standard, I suppose, our CIA and 
military knew they could not exceed. That was crystal clear, 
was it not?
    Mr. Goldsmith. Yes, it was.
    Senator Sessions. And with regard to what happened in Abu 
Ghraib and that kind of thing, do you find any legal 
justification for the activities that were so publicly exposed 
in Abu Ghraib?
    Mr. Goldsmith. No, sir.
    Senator Sessions. Nobody could justify that, and nobody did 
justify that, to your knowledge, in the administration?
    Mr. Goldsmith. No one tried to defend it. No, sir.
    Senator Sessions. And, in fact, the people who did that 
have been prosecuted and sent to jail. So I guess I want to 
think a little bit about those agents and all trying to protect 
America, trying to interrogate people who may be in the middle 
of plotting an attack that could lead to the death of 
thousands. If they were to utilize these--what appeared to be 
their legal authority, they still had, in your opinion, fears 
that they would be embarrassed, or even prosecuted, or 
criticized afterwards?
    Mr. Goldsmith. This was something that I experienced every 
day. And the reason was because, for example, there was this 
pressure to go up to the edge of the law. The law was not 
always clear. So depending on where you settled the line, there 
was a worry that a future prosecutor or court might reach a 
different conclusion. And I might add, this is exactly the 
complaint--I mean, I quote in my statement from Senator Graham, 
him criticizing the risk-averse lawyers at the CIA in 2002 that 
were holding back the CIA from doing what was necessary and 
might have prevented 9/11.
    The thing I worry about a lot, is that we're going to see 
cycles like this where the CIA and other agencies are chilled 
from being as aggressive as they can for fear of retroactive 
discipline, so they pull back, as they did before 9/11, when 
everyone agreed that they were risk-averse, and then something 
bad happens and they're pushed and pressured to go right up to 
the edge, and then the situation changes and it's a very 
difficult position for the counterterrorism officials to be in.
    Senator Sessions. So your suggestion to us is that the 
President should be more open with the Congress, that Congress 
should be more objective in its analysis and less partisan, and 
we ought to develop clear standards so that those we send out 
in harm's way to serve our country can have confidence that 
what they're doing is legal today and won't be second-guessed 
in the future?
    Mr. Goldsmith. That sounds like a wonderful prescription. 
Yes, sir.
    Senator Sessions. Thank you.
    Chairman Leahy. But it was determined necessary to rescind 
the torture memo. Is that correct?
    Mr. Goldsmith. I did, yes, sir. Because--well, yes, sir.
    Senator Sessions. Well, could I, since you raise that, Mr. 
Chairman? On the question of that memorandum, you simply 
concluded it allowed more pain and mental stress than you 
believe the statute allowed. Is that correct?
    Mr. Goldsmith. Yes, sir.
    Senator Sessions. Not that the fundamental principle of the 
memorandum was flawed.
    Mr. Goldsmith. Well--
    Senator Sessions. That there was powers to go beyond.
    Chairman Leahy. There was. I got the impression that it was 
withdrawn because it was flawed.
    Mr. Goldsmith. May I answer this?
    Chairman Leahy. Sure.
    Mr. Goldsmith. I concluded--first of all, let me say that I 
would not have withdrawn any memorandum of my predecessors 
unless they were severely flawed, because the Office of Legal 
Counsel has a very powerful norm of stare decisis, which means 
basically that we stand by our old opinions, and it wasn't my 
job to come in there and start re-thinking everything that had 
been decided before.
    The main thing I worry about was basically what happened, 
that the language was so over-broad, unnecessary, extreme, and 
unnecessarily extreme for the techniques that I knew were going 
on, that I didn't know what else might be done in the name of 
the opinion that I didn't know about that would later be 
thought to be OK by the Justice Department. So, that was my 
basic reasoning in a nutshell.
    Chairman Leahy. Well said. But the point is--
    Senator Sessions. Mr. Chairman, I would just want--- the 
point was that he believed the memorandum allowed more stress 
on the prisoner than the statute allowed, and he disagreed with 
the previous interpretation.
    Chairman Leahy. Well, I think we'll let Professor Goldsmith 
answer stand and not the interpretation either by the Senator 
from Alabama or by the Chairman.
    Senator Sessions. Fair enough.
    Chairman Leahy. I am perfectly willing to accept your 
answer. Set that clock back up. I apologize. Senator Feingold 
has been waiting patiently.
    Senator Feingold. Thank you. Thank you, Mr. Chairman.
    Thank you, Professor, for being here and for your candor 
and for your very important testimony today. Let me ask you a 
few questions. When you were serving the administration, were 
you aware of any classified intelligence programs implicating 
the rights of Americans that were not briefed to the so-called 
Gang of Eight, the leaders of the House and Senate and the 
leaders of the Intelligence Committee?
    Mr. Goldsmith. I do not know. I just don't have the 
information, Senator. I know that there were briefings on--I 
think that there were briefings on every classified program to 
Members of Congress on the Intelligence Committee, on the 
leadership, on every program that I was briefed into. I'm not 
sure when they began. I'm not sure how extensive they are. I'm 
not sure what the content of the briefing was. I never attended 
one.
    Senator Feingold. You're aware of the distinction, 
obviously, between briefings that just go to the Gang of Eight 
and to the full committee.
    Mr. Goldsmith. Oh, I'm sorry. You're talking about the 
entire committee?
    Senator Feingold. Well, no. You're right, at first I was 
talking about the Gang of Eight. But let me ask the following 
question: were there any such programs that were not briefed to 
the full Intelligence Committee?
    Mr. Goldsmith. Yes, sir, I believe that there were.
    Senator Feingold. Are you able to say at all what they are?
    Mr. Goldsmith. No, sir. I mean, I can't talk about--
    Senator Feingold. That is classified?
    Mr. Goldsmith. I believe it is.
    Senator Feingold. OK.
    There's been a great deal of debate about the law that 
Congress passed in August to amend FISA, and many experts have 
cautioned that the law could be read to grant very broad 
authority to the executive branch, far beyond what was 
intended. Administration officials have testified and sent 
letters to Congress arguing that those broad interpretations of 
the law are a stretch and that they would not read the law so 
expansively. Of course, any Member of Congress appreciates 
those kinds of assurances, but I believe that Congress should 
write the laws as it wants them to be interpreted, not as they 
hope it will be interpreted.
    In your book, you suggest that the job of an administration 
lawyer working on terrorism or intelligence issues is to find a 
legal justification, perhaps any legal justification, for 
proposed programs that are presented to him or her. The 
experiences you recount in your book suggest that if we write a 
statute in a way that grants more authority than we intend, 
it's quite possible that at some point the law will be read in 
its broadest form. Do you agree that this is something Congress 
should take into account when drafting statutes in this area?
    Mr. Goldsmith. Well, first of all, let me say, sir, on the 
premise to your question, I don't think I said that the job of 
the administration lawyer was to find--oh. There was a passage 
in which I attributed to some people the view that the lawyer's 
job was to find any justification possible. That was not my 
view.
    And as to your question whether Congress should worry 
about, and consider, and take into account how the executive 
branch interprets the laws it passes, the answer is, 
absolutely, yes, you should, because presumably you hope to 
achieve certain things and you'd like to know how the language 
that you enact is going to be interpreted and enforced. And, 
so, yes.
    Senator Feingold. And even though you may not have endorsed 
the notion of trying to find any justification, I take it your 
experience is that there was a fair bit of that going on in 
parts of the administration that you witnessed. Correct?
    Mr. Goldsmith. There was certainly pressure to go as far as 
the law would require, and some people--I was speaking 
rhetorically in that passage in the book about the general 
atmosphere.
    Senator Feingold. You mention in your written testimony the 
requirement of the National Security Act that Congress be 
notified of any covert actions. I have two questions about 
this. First, do you agree that congressional notification is a 
legally binding requirement? And second, is it legally 
permissible to notify only the Gang of Eight rather than the 
full Intelligence Committee about a program that is not a 
covert action or about a program that is hidden for reasons of 
political or legal sensitivity?
    Mr. Goldsmith. The first question, is it a legal 
requirement to notify the Intelligence Committee for covert 
operations? Yes, it's absolutely clearly a requirement, one of 
the most important reforms of the 1970's and 1980's. The second 
issue is a complicated legal question which I used to know more 
about than I do, and I hesitate to answer because I just 
haven't studied it in a while.
    Senator Feingold. Fair enough.
    Let me ask you about another aspect of your book. You 
recount in your book a meeting in February, 2004 at the White 
House where Vice President Cheney's counsel, David Addington, 
stated: ``We're one bomb away from getting rid of that 
obnoxious court'', referring to the FISA court. What was your 
reaction when he said that?
    Mr. Goldsmith. Believe it or not, I didn't have much of a 
reaction because I'd heard things like that before. And believe 
it or not, I would have felt that responsibility and fear had 
he said nothing to me. So it was emblematic of the kinds of 
pressure that everyone felt in the administration, but it 
wasn't--by the time that I heard that statement it didn't move 
me as much as you might have though because I had already been 
moved by the fear that everyone felt, and we all felt the sense 
that if we tied the President's hands, that we would in some 
sense be responsible if something really bad happened.
    This is one of the things I really struggled with because, 
you know, I was taking actions in the Department of Justice. My 
colleagues and I were doing things that were limiting what the 
President could do, or at least saying that he had to try 
another method to be able to do what he wanted to do, and we 
all worried very, very much that people were going to end up 
being killed by it.
    And if that had happened, I would be here on this green 
felt table and people would be saying--I worried that people 
would be saying, you know, you legalistic, pin-headed lawyer, 
you. Look, you told the President he couldn't do something and 
a lot of people got killed. And--
    Senator Feingold. Well, of course I share that concern. But 
what I'm particularly interested in, is did you share the view 
of the FISA court as being an ``obnoxious court'' ?
    Mr. Goldsmith. No, sir. I do not.
    Senator Feingold. And to what extent would--
    Mr. Goldsmith. In my experience it's a--
    Senator Feingold. To what extent did you feel that was the 
view with those you were working with?
    Mr. Goldsmith. I'm sorry. I misunderstood your question.
    Senator Feingold. The first question was your view. Now I 
want to know what you heard from others.
    Mr. Goldsmith. There was a hostility to the FISA court and 
to the FISA mechanism. And the idea was, as I talk about in my 
book, that the FISA court and the FISA system was going to do 
something to limit the President that would keep people from 
being killed. But there was definitely--I mean, that statement 
says it all, really. I can't add to the statement.
    Senator Feingold. When you left government in 2004, were 
there any remaining OLC opinions still in effect about which 
you had concerns but were unable to correct, whether for lack 
of resources, or time, or due to other factors?
    Mr. Goldsmith. There were no major issues that I hadn't 
taken steps to try to fix. I wasn't able, in the time I had 
remaining in June of 2004, to write the replacement opinions on 
torture and related issues, but I had withdrawn those and we 
were in the process of doing that when I left. But there were 
no other major issues that I can recall where I had similar 
concerns.
    Senator Feingold. Did those replacement memos get done?
    Mr. Goldsmith. Yes, sir. The one that I know about was 
published in December of 2004, 6 months later.
    Senator Feingold. Thank you, sir.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. Thank you for 
holding this hearing. I want to thank Mr. Goldsmith, and 
congratulate you, Mr. Goldsmith, on your bravery within the 
administration, your attempts to uphold the rule of law.
    While there are many matters on which you and I surely 
disagree, I commend you for doing something to return the 
administration to the path of law and away from governing by 
fiat. Of course, I know when you first went to my alma mater, 
Harvard Law School, you were protested by the left, and now I 
guess they would admit that they were wrong, I hope.
    I want to commend you, particularly for your role in 
standing up to the White House in March of 2004 when you, Jim 
Comey, and others had to race to the hospital room of John 
Ashcroft to prevent a true miscarriage of justice. I know 
Senator Feinstein has walked you through that. It seems to me 
almost the exact same recollection that Jim Comey had, with the 
exception that you included facial gestures in your testimony.
    But I want to ask just a couple of questions about that. Is 
it true that you were prepared to resign over the White House's 
threat to continue with the TSP program, despite your inability 
to certify its legality?
    Mr. Goldsmith. Yes, sir.
    Senator Schumer. Do you have any idea who sent Alberto 
Gonzales and Andy Card to John Ashcroft's hospital room?
    Mr. Goldsmith. My recollection is the same as Mr. Comey's. 
He recalled that it was the President, and that's my 
recollection as well. But I'm not 100 percent certain about 
that.
    Senator Schumer. Do you know of the Vice President had any 
role in that?
    Mr. Goldsmith. I do not know.
    Senator Schumer. OK.
    Did you keep notes of your recollection of the March 10th 
hospital visit?
    Mr. Goldsmith. Yes, sir, I did. I wrote down 
contemporaneous notes and I wrote notes throughout the next 
couple of weeks.
    Senator Schumer. Why?
    Mr. Goldsmith. Just to have. They were extraordinary events 
and I wanted there to be a--as I recall they're not very good 
notes, but I wanted there to be some kind of a record 
somewhere.
    Senator Schumer. Right. Could you provide those to the 
committee?
    Mr. Goldsmith. They're not in my possession. They're in the 
Department of Justice.
    Senator Schumer. I see. Thank you.
    Jim Comey testified that during the weeks after the 
hospital visit there were discussions about changes to be made 
to the classified program that was the subject of the visit. 
During that time period was the classified program operating 
without any legal basis?
    Mr. Goldsmith. That's a complicated question. I'm trying to 
figure out how much I can say in answering that question 
without revealing classified information. I guess all I can say 
is this. It might not be a satisfactory answer. And by the way, 
I would love to be able to talk in closed session about some of 
these issues if it can be arranged, and if you want me to, and 
if the executive branch lets me.
    I guess I can just say this. I thought that during that 
period, that there was a legal basis for the transition period. 
I just have to leave it at that.
    Senator Schumer. OK. Thank you.
    Let's go to the TSP program itself. One of the lessons you 
say we should learn from the past 6 years is that there should 
be full and open discussion among administration lawyers about 
ensuring that the rule of law is upheld. That's always been one 
of my criteria. I think there should be full and open 
discussion, exception when it's classified information, with 
the American people and with the Congress. It works. The 
founding fathers were just very smart about all this.
    Now, you suggest that dangerously few people even within 
the Bush administration were provided the legal analysis 
underlying the program. For example, the NSA's General Counsel 
didn't have it. Even the Attorney General did not have all the 
information he needed. This is astonishing. The Attorney 
General of the United States was himself out of the loop on 
this.
    Given how little the legal opinions were circulated within 
the administration, what do you make of the statement by former 
Attorney General Gonzales that were was no serious internal 
dissent about the TSP program?
    Mr. Goldsmith. This is a difficult question to answer, 
because of what I mentioned much earlier in my testimony. These 
labels--there are labels for things, and then there are 
underlying realities, and it's very difficult to talk about 
this in an unclassified setting.
    I would just say that there were--as I say in my book and 
as others have acknowledged, there were enormous disagreements 
about many aspects related to the TSP.
    Senator Schumer. Let me tell you, I sat here and asked the 
Attorney General those questions. He was not giving that 
impression at all.
    Mr. Goldsmith. Well, let me just say in his defense, this 
is the point about labels. There's a technical interpretation 
of what he said that is true, but it's very difficult to talk 
about it. There's confusion about what the labels refer to, and 
it's very difficult to talk about it in an unclassified 
setting. I could certainly explain it to you in much greater 
detail in a closed session.
    Senator Schumer. Well, that will be up to the Chairman and 
the administration, which might not let you testify even if we 
wanted to.
    Chairman Leahy. Well, on that, and on my time, not on 
Senator Schumer's time, if you were to testify before this 
committee, subject to a subpoena, if you requested one in 
closed session. you're not talking about anything that would 
fall under any version of executive privilege, are you?
    Mr. Goldsmith. It might, Senator. It might. I don't know. 
I'd have to study it. I mean, we'd have to be more concrete 
about what opinions and what you wanted to know. I can't answer 
a question like that in the abstract.
    Chairman Leahy. We may have my staff and Senator Specter's 
staff work with you on this issue, and if we need to go into 
closed session we will. I certainly would meet with Senator 
Schumer, and any other Senator who wished in that regard.
    Senator Schumer?
    Senator Schumer. Thanks, Mr. Chairman.
    Chairman Leahy. I apologize for the interruption. We'll 
give you extra time.
    Senator Schumer. Yes. I think it's been very interesting. 
Thank you.
    So can you tell us, to the best of your knowledge and 
recollection, who was read into the program, and when? In other 
words, who got this legal analysis?
    Mr. Goldsmith. I'm sorry, Senator. Which legal analysis?
    Senator Schumer. The analysis justifying the TSP program 
the way they constructed it.
    Mr. Goldsmith. Really, all I can tell you is who was read 
into the program in the Justice Department, and when I was 
there. It was me, the Attorney General, the head of OIPR, Jim 
Baker, and subsequently Deputy Attorney General Comey.
    Senator Schumer. Right. Was there anyone who should have 
been read into the program who was excluded?
    Mr. Goldsmith. Well, I certainly had a bit of--there was a 
little bit of a struggle getting Mr. Comey read into the 
program.
    Senator Schumer. Really?
    Mr. Goldsmith. And after that, I wanted to--
    Senator Schumer. He was only Deputy Attorney General, 
right?
    Mr. Goldsmith. Right. And I certainly wanted to have more 
help from my lawyers in trying to figure out an enormously 
complicated issue. It was very challenging, obviously, because 
I had a lot of other things going on and there were very few 
lawyers that were able to work on it.
    Senator Schumer. Did you see any legal reason why Comey 
shouldn't be read into the program or is it possible they just 
didn't want to hear his answer?
    Mr. Goldsmith. I don't know what their reasons were. The 
stated reasons were because of the importance of secrecy. But 
they ultimately read him in.
    Senator Schumer. OK. I'll just say that doesn't stand up. 
Not what you said, but what they said.
    Just about your book--and I have a limited amount of time 
here. I apologize. Three questions about it: did anyone try to 
prevent you from writing this book; have you experienced any 
recriminations for writing this book; and did anyone try to 
prevent you from disclosing some of the information in the book 
on the ground that it was covered by executive privilege?
    Mr. Goldsmith. So, I'm sorry. To prevent me from writing, 
recriminations--
    Senator Schumer. Prevention from writing the book, 
recriminations, and dissent or attempt to prevent you from 
disclosing some of the information because it was covered by 
executive privilege.
    Mr. Goldsmith. OK. The answer to the first question is, no, 
no one tried to prevent me from writing the book. Second, I 
don't believe I've suffered recriminations. Third, on--the 
third question again, please?
    Senator Schumer. Executive privilege. Anyone try to stop 
any of the information from coming out on the grounds of 
executive privilege?
    Mr. Goldsmith. There were discussions that I had with the 
Justice Department on that issue which they have asked me to 
keep confidential, which I'm quite happy to tell you if I can 
in written answers. Maybe I can ask them and see if they mind.
    Senator Schumer. OK. But I'm not asking you the details. 
I'm just asking you a conclusion.
    Mr. Goldsmith. There were some conversations about it. Yes, 
sir.
    Senator Schumer. Was there anything that you wanted to 
write that didn't end up being written because of executive 
privilege?
    Mr. Goldsmith. Well, I put a lot of self- constraints on 
myself, and there were a lot of things that I didn't talk about 
in the book for a variety of reasons having to do with matters 
related to privilege. But, no. The answer to that question is, 
no, there's nothing that I wanted to put in the book that's not 
in there. I had it also pre-cleared by the government for 
classified information, of course.
    Senator Schumer. Right. OK.
    Could I just ask you to do this in writing? Because my time 
is running out, and the Chairman's been generous. You wrote 
that some of the OLC opinions you read when you came into 
office were ``deeply flawed and sloppily reasoned''. Those are 
your words. Could you please identify--in writing, I'll ask--
all of the opinions you believe that were deeply flawed? Please 
tell us how many of those were withdrawn, corrected, or 
otherwise modified. OK.
    Thank you, Mr. Chairman.
    Chairman Leahy. Can you do that, Professor?
    Mr. Goldsmith. I'll have to think about it. I'll try. I'll 
give some kind of an answer to that. I'm not sure how much 
detail it can be.
    Senator Schumer. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Cardin? You've been very patient. And after you, 
Senator Whitehouse.
    Senator Cardin. Thank you. Thank you, Mr. Chairman.
    Mr. Goldsmith, thank you for your appearance here today. We 
appreciate your testimony.
    I just want to followup very quickly on one of Senator 
Schumer's questions. When you said that the book was ``pre-
cleared'', were there changes in the book as a result of the 
pre-clearance process?
    Mr. Goldsmith. No, sir.
    Senator Cardin. I want to get to the--
    Mr. Goldsmith. Let me correct that, sir. There were two 
words that someone asked me to take out, which I thought was 
perfectly appropriate. And we didn't reach the question of 
whether it was classified or not, but I took them out. And then 
I was asked to use aliases in certain contexts, and I did that. 
But nothing of substance.
    Senator Cardin. Just as a matter of interest, how long did 
the pre-clearance process take you to complete?
    Mr. Goldsmith. It took about--approximately 13 or 14 weeks. 
Maybe 12 weeks. Something like that.
    Senator Cardin. Let me get to your testimony and your 
statement which I find to be perhaps the most concerning, and 
that is the administration's concern that by involving Congress 
it would be counter to their position of inherent power, and 
then working with Congress might restrict some of their power, 
and your observations that you thought that was the wrong 
policy by the administration, but you sort of indicate their 
position.
    Then we go one step further in your response to Senator 
Feingold's question and your comments about the staff person 
for the Vice President, the disdain for the judicial branch of 
government and the FISA courts. This past week, I had 
representatives that were in and concerned about what's 
happening in the Russian federation today with the independence 
of their courts and the fear by their government that they 
can't allow an independent court because it could jeopardize 
the stability of their government.
    I would just get your observations. Are we moving so far 
down the road that our democracy that does depend upon an 
independent judiciary--I can understand some of the fights 
between Congress and the executive branch, and I agree with you 
and certainly disagree with the administration. But I would 
hope we all would want to make sure there's an independent 
judiciary here.
    I'm somewhat surprised by the attitude within the 
administration. Admiral McConnell just recently testified 
before our committee as to, he thought the FISA court struck 
the right balance. He's the person responsible for gathering 
information and he supported the FISA court.
    It seems like one of our main disagreements in the Protect 
America Act of 2007 is the role that the FISA court should 
play. So I would just get your observations as being a major 
player at the Justice Department. Are we getting so dangerous 
that we don't see what's happening to our own country?
    Mr. Goldsmith. I hope not, sir. I don't believe so. I think 
it's very important that we have an independent judiciary, and 
I believe that we do have an independent judiciary, in 
particular with regard to the FISC, the FISA court. I think 
they've played an enormously important role in the last 6 years 
in so many ways, some of which are known, some of which aren't 
known.
    Now, that doesn't mean that the role of the FISA court, 
under the 1978 law, was perfect for the 2001 situation. But I 
do think that there is a role for an independent FISA court in 
general, certainly. I don't think that there's real danger of 
it. The FISA court has actually been quite independent.
    Senator Cardin. I understand it's been independent. But it 
seems like this administration would be just as happy if there 
were no FISA courts and no requirement to have to go to court 
to get subpoenas. They've certainly tried to develop programs 
to deal with that, and you were outspoken and concerned about 
it. So we hear about certain things, but some things we may not 
hear about. I just am concerned about how far we've gone.
    And let me give you just a practical example. Let's talk 
about Gitmo Bay--Guantanamo Bay, for just one moment. There's a 
reason for us to be concerned about these unlawful combatants. 
They had intelligence information and they were dangerous 
people. So you look at, what are the legal restrictions on us 
detaining them, what are our country values in regards to 
detaining them, and what impact will it have on the United 
States internationally?
    At least that's what I would hope was the analysis they 
went through. Initially, our main concern was to get 
intelligence information in order to protect our country, as 
you already have indicated. Is there any credible argument 
today that those who were detained at Guantanamo Bay still have 
intelligence information that requires extraordinary procedures 
in order to try to make sure we remain safe?
    Mr. Goldsmith. I'm not really the right person to answer 
that question. I'm sorry. I don't know exactly who's down 
there, and I don't know when they've arrived or what 
intelligence information they may have. I'm sorry. I just am 
not--
    Senator Cardin. But you had to give legal opinions during 
this period of time, and I assume the intelligence value of 
those detained was part of that process. After 4 years, I think 
most people in the intelligence business would tell you there 
isn't much left. It seems to me that our objective now is 
almost pretrial detention. We don't want to let them go, and we 
don't want to try them. I understand they're dangerous people, 
but we have certain principles in our country about those who 
we detain who we believe are criminals, which is basically what 
we have now in Guantanamo Bay.
    So it seems to me we change the argument in order to try to 
get the result that this administration wants, that is, to 
detain people without rights because they're dangerous, even 
though they should be somehow integrated into some justice 
system where they have broader rights than we've given them.
    Mr. Goldsmith. Well, my--OK. Let's see if I can comment on 
that, Senator. A lot of things to say. I think that the main 
rationale for detaining prisoners in Guantanamo is a preventive 
detention regime because they're dangerous. That is the 
traditional justification in war time for detaining members of 
the enemy. There's nothing--by itself, there's nothing 
controversial or extraordinary about detaining members of the 
enemy until the war is over. That is classically what war does, 
classically what the laws of war provide.
    The problem is, in this war there are lots of concerns we 
don't usually have in other wars, about the endless nature of 
the war, about the fact that the enemy does not appear in 
uniform so there might be mistakes, mistakes that are 
compounded by the indefinite nature of the detention.
    But I don't think it's right to treat them just through the 
criminal system. I don't think that's possible. I think that 
imposes enormous costs on fighting the war. I do think we need 
to come up with a more elaborate, successful, long-term 
institution that would justify detaining dangerous terrorists.
    Senator Cardin. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman.
    I have two questions, Mr. Goldsmith. One relates to the 
famous, or infamous, night at the hospital that Senator Schumer 
has brought to the world's attention through the testimony of 
Deputy Attorney General Comey. It has to do with some of the 
individuals who were involved that night and how they reacted.
    You've described, in your book, Deputy Attorney General 
Comey as a ``seasoned prosecutor who thinks clearly in times of 
crisis, who possesses a keen sense of proportion that is the 
mark of good judgment'', and who was, you said, ``the most 
level-headed person I knew in government.''
    Mr. Goldsmith. Yes, sir. That's my belief.
    Senator Whitehouse. Yes. And Bob Mueller was also engaged 
in the activities that night. I view him as of similar stature 
and nature. Do you also?
    Mr. Goldsmith. Yes, sir. I have great admiration for Mr. 
Mueller.
    Senator Whitehouse. So here you have a couple of serious, 
cool, calm, collected, experienced grown-ups, and the way they 
reacted that night was for Deputy Attorney General Comey to 
rush to the hospital with his emergency lights on. I think he 
said it was the only time he'd used his emergency lights to get 
anyplace during the time he was Deputy Attorney General. He 
testified to us that he took the stairs at a dead run.
    At the same time, the Director of the FBI was calling the 
FBI agents guarding the Attorney General of the United States 
to say, don't leave them alone in the room with the Attorney 
General, referring to the White House counsel and the White 
House Chief of Staff. Don't let them throw the Deputy Attorney 
General out of the room, as if he had to sort of countermand.
    There is a sense of urgency, and almost emergency, that 
those actions display that I--where did that come from?
    Mr. Goldsmith. The sense of urgency on behalf of Mr. Comey 
and Mr. Mueller?
    Senator Whitehouse. Yes.
    Mr. Goldsmith. I think--
    Senator Whitehouse. You were close to that situation.
    Mr. Goldsmith. Sure. I think it--
    Senator Whitehouse. What was it that--
    Mr. Goldsmith. I think, fundamentally--
    Senator Whitehouse.--that caused him to run, and calling 
FBI agents to--
    Mr. Goldsmith. Fundamentally, I'm just going to tell you 
what Mr. Comey said in his testimony. That is, as Mr. Comey 
said in his testimony, he worried that in this hugely 
important, highly consequential area that had been subject of 
months and months of work inside the Justice Department, he 
worried that, as he put it, the White House was going to take 
advantage of a very sick man. And with regard to this 
extraordinarily important issue, that--in ways that seemed 
inappropriate and just baffling, frankly. That's all I can say.
    Senator Whitehouse. Meaning what? What do you mean, ``take 
advantage of'' ? This was the most level-headed guy you saw in 
government.
    Mr. Goldsmith. Right.
    Senator Whitehouse. He's climbing the hospital stairs at a 
dead run.
    Mr. Goldsmith. I think that they thought that they were 
going to try--that Mr. Comey believed, as turned out to be the 
case, that the White House was going to try to get the 
incapacitated Attorney General to approve this program. I'm 
sorry. I didn't understand the question. Is that an answer to 
your question?
    Senator Whitehouse. I think so. I'm trying to get kind of 
the flavor of the evening that dictated that level of urgency 
and activity.
    Mr. Goldsmith. It was quite an evening.
    Senator Whitehouse. I mean, the Deputy Attorney General 
deals with significant, urgent matters all the time, but only 
once did he put on his emergency beacon, only once did he--
    Mr. Goldsmith. This was a hugely important issue inside the 
government. That's all I can say. It was a hugely important 
issue, independent of the hospital. Hugely important. Hugely 
consequential issue for everyone involved, and the stakes were 
enormously high. And on top of that, there was this attempt to 
go see the Attorney General. I think that's the background that 
led him there at such a quick pace.
    Senator Whitehouse. So is it fair to say that the Deputy 
Attorney General and the Director of the FBI felt that 
something so nefarious would happen if the White House counsel 
and White House Chief of Staff were left alone with the 
incapacitated Attorney General, that it militated taking the 
stairs at a dead run and racing through Washington with 
emergency lights on?
    Mr. Goldsmith. I can't speak for Mr. Mueller as much as I 
can with Mr. Comey, because I spent a lot more time with him. 
And I shouldn't speak for either one, actually. But I will say 
that, certainly as Mr. Comey said, I believe, in his testimony, 
it was thought to have been extremely inappropriate.
    Senator Whitehouse. I'm sorry. Say it again.
    Mr. Goldsmith. That it was thought to have been extremely 
inappropriate.
    Senator Whitehouse. Turning to the Department of Justice 
for a minute, in your testimony you talk about the powerful 
internal norms of detachment and professionalism that help 
guide OLC. You identified a number of practices that existed to 
help OLC avoid errors and to compensate for the fact that its 
opinions are not subject to the same critical scrutiny of 
adversary process and dissent that characterizes the judiciary. 
You indicated that had these norms and practices been followed, 
OLC would have avoided some, and perhaps most, of the mistakes 
that it made.
    You recommend that Presidents and Attorneys General should 
insist that OLC follow its traditional normals and practices, 
even in times of crisis. It is my sense from my experience with 
the Department that this whole concept of the Department's 
internal norms and practices is not unique to OLC. Indeed, 
norms and practices that protect the Department's integrity and 
protect its independence pervade the Department. Do you agree 
with that point?
    Mr. Goldsmith. Certainly. Yes, sir. Absolutely. I was 
talking about something I had the most experience of, which was 
OLC. But that's absolutely true in my experience of the 
Department more generally.
    Senator Whitehouse. Now, it's my sense from what we've seen 
out of the Department recently, not just in OLC but throughout 
the Department, a lot of those norms and practices have been 
bypassed, degraded, rewritten, ignored, and that it would be a 
very healthy exercise for the Department, now under new 
leadership, to go through and assess those norms and practices 
and see which ones have been degraded and restore them.
    A little bit--I've used the example before, if a ship runs 
aground or catches fire, the firs thing that the captain does 
is stop the water coming in and put out the fire. But the next 
thing is to call for a damage report. I'm wondering what your 
thoughts are on whether the Department should do a fairly 
thorough scrub of the norms and practices to see which ones 
have been either violated, degraded, or written out of practice 
and restore them--you know, a systematic assessment of this.
    Mr. Goldsmith. It's a good question, sir. Let me say two 
things in response. First, I think that, boy, the lessons that 
we've learned in the last 6 years, just to reiterate what I 
said in my statement, this is crucially important to the Office 
of Legal Counsel.
    Second of all, I do think it would be--I mean, certainly a 
prudent practice for the new Attorney General to examine these 
norms and practices and see which ones work, and which ones 
haven't worked, and which ones aren't being complied with. I 
think it's absolutely crucial to the proper running of the 
Department.
    Senator Whitehouse. OK. That's helpful. I appreciate it.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Whitehouse.
    Just a couple of things occurred to me. There's a small 
group of lawyers, as you said, responsible for crafting a legal 
policy for terrorism. If I've got it right, it's David 
Addington, Alberto Gonzales, John Yoo. You characterized him as 
having an extreme view of executive power. They believe the 
President's Commander-in-Chief authority allows him to do 
whatever necessary to protect the country in an emergency, and 
that we've been in a state of emergency since 9/11.
    Of course, some would argue that it's been a state of 
emergency since 9/11, and we'll always be in a state of 
emergency as long as we live. But they also believe that it 
harms the presidency and the country if the executive branch 
accepts any limit on the President's prerogatives, such as 
working with the Congress or the courts. Have I described that 
view correctly?
    Mr. Goldsmith. I missed the last part of it, sir. I 
understand the first part.
    Chairman Leahy. That it would harm the presidency and the 
country--
    Mr. Goldsmith. Yes.
    Chairman Leahy.--if the executive branch accepts any limits 
on the President's prerogative, such as working with the 
Congress or the courts.
    Mr. Goldsmith. I obviously don't want to attribute that 
view to everyone, but it was certainly a powerful view in 
discussions about legal policy issues that, working with 
Congress, threatened or raised the possibility that Congress 
would not approve what the President wanted to do or would put 
some constraints on the President in a way that would tie the 
President's hands, that would keep the President from keeping 
the country safe. That was a view that was--
    Chairman Leahy. What effect does asserting this kind of 
extreme authority have on the President's terrorism policies 
overall? Does it help or hurt them?
    Mr. Goldsmith. As I explain in my book at length, I think 
it's been, on the whole, hurtful.
    Chairman Leahy. Now, you point out in your book, and you 
have in your testimony, about receiving some harsh personal 
criticism for not supporting a legal opinion and giving the 
White House the answer it wanted. You also rather tellingly, in 
the back of the book, refer to President Nixon and former 
Attorney General Richardson and that dialog. But you point out 
what David Addington told you, the blood of 100,000 people who 
die in the next attack would be on your hands if you persisted 
in your legal conclusion.
    I find just about every time anybody raises questions about 
what they're doing, it comes out from the administration that 
you're either for the terrorists or you're against the 
terrorists, and we're not going to accept any kind of an 
argument. We heard this drumbeat of fear when we considered the 
Military Commissions Act last year.
    We heard it again this year. Even though we had agreed on a 
change in FISA, at the very last minute the Director of 
National Intelligence backed out of that agreement and the 
drumbeat started from the White House: we've got to stop the 
terrorists. Is this really an appropriate tactic? I mean, does 
stirring up fear at this time--I hate to use a cliche, but 
don't you run into ``crying wolf'' ?
    Mr. Goldsmith. Senator, I'm not sure I can fully answer 
that question because I wasn't, obviously, privy to the 
negotiations between the Congress and the White House. I will 
say two things, and they're kind of on the opposite poles. One, 
is that when I was on the inside of the government I did not 
think that the government was exaggerating the threat.
    I thought, if anything, it was understating the threat 
publicly. All I can tell you is, in my experience when I was 
inside the government, the government was much more concerned, 
fearful, and anxious about the threat and its ability to stop 
it than it was conveying publicly.
    Now, that's what I think, based on my experiences. I have 
no idea. I just don't know whether the government was giving 
you its candid views or--
    Chairman Leahy. I didn't state the question quite clearly 
enough.
    Mr. Goldsmith. I'm sorry.
    Chairman Leahy. No, it would be my fault. But what I'm 
saying--I suspect. There is a threat. I've read a lot of things 
that NSA and the CIA have received, things that have not been 
made public, and I understand that.
    What I'm concerned about, is that every time somebody 
raises a disagreement, or even suggests there's a better way of 
doing something, does it really help the discussion to fall 
back on, we're facing a terrible threat, you either do it our 
way or you're basically supporting the people who are making 
the threat?
    Mr. Goldsmith. That does not sound like a very useful thing 
to say, sir. I think the basic view on all of these issues is 
consistent with the demands--legitimate demands--of secrecy. 
The more deliberation and the more viewpoints we get, the 
better.
    Chairman Leahy. For example, the administration is now 
requesting that Congress pass legislation that retroactively 
immunizes any telecommunication carriers that helped the 
government implement the TSP, the warrantless wire tapping. I 
realize we're not going to go into the details of that.
    Don't you think that if the Congress is asked to 
retroactively immunize companies, that we ought to at least 
know what legal justification was used for them to work with 
the government on the same steps that we're now asked to 
immunize?
    Mr. Goldsmith. That sounds like a perfectly sensible 
request to me, sir.
    Chairman Leahy. Thank you.
    If you have OLC opinions that are going to be the basis of 
legislation, shouldn't the Congress see those opinions if 
they're asked to legislate based on them?
    Mr. Goldsmith. Putting the question that way, of Congress 
is asked to legislate based on legal analysis, then they should 
see the legal analysis in some form before they legislate, I 
assume. I don't know exactly what issues you're talking about, 
but that makes perfect sense to me. Not necessarily to see the 
documents. I don't know. There are other ways of conveying 
legal analysis.
    But it seems to me from the perspective of someone in 
Congress, if you're asked to legislate on an issue that turns 
on the interpretation of the executive, that you need to know 
how the executive is going to interpret the law and it's a 
perfectly sensible thing to ask.
    Chairman Leahy. Thank you.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Professor Goldsmith, you disagreed, to your credit, with 
the earlier interpretation of Office of Legal Counsel when you 
took the position to change the definition of interrogation, 
where the predecessor had said to be defined as torture it 
``must be equivalent in intensity to the pain accompanying 
serious physical injury, such as organ failure, impairment of 
bodily function, or even death.''
    Has that standard been abandoned in practice?
    Mr. Goldsmith. I don't know whether it's been abandoned in 
practice. It was certainly abandoned in the subsequent decision 
of the Office of Legal Counsel that my successor, Den Levin, 
issued. In an opinion to Deputy Attorney General Comey in 
December of 2004, he repudiated that standard.
    Senator Specter. The legislation to which the President 
attached the signing statement prohibited interrogation which 
was ``cruel, inhuman, or degrading''. Is that standard 
consistent with what the Office of Legal Counsel now says is 
appropriate?
    Mr. Goldsmith. I'm not sure what the Office of Legal 
Counsel now says is appropriate. The opinion I was referring to 
was a December 2004 opinion just on the torture statute, and it 
did not interpret that standard. I am not privy to how OLC has 
interpreted that standard.
    Senator Specter. Do you recollect what standard you wrote 
as legal counsel, as Assistant Attorney General, Office of 
Legal Counsel?
    Mr. Goldsmith. Interpreting that standard? I'm not--
    Senator Specter. Interpreting the torture standard.
    Mr. Goldsmith. The torture standard. You're talking about 
the torture statute as opposed to the McCain amendment, 
``cruel, inhuman, and degrading treatment'' language? I'm not 
sure which one you're asking me about.
    Senator Specter. Well, we have the language which Senator 
McCain and the President agreed to prohibiting interrogation 
which was cruel, inhuman, or degrading.
    Mr. Goldsmith. Right.
    Senator Specter. The President said he felt free to 
disregard that--
    Mr. Goldsmith. Right. Right.
    Senator Specter.--on his powers as Commander-in-Chief.
    Mr. Goldsmith. Right.
    Senator Specter. What standard, if you know, is--
    Mr. Goldsmith. I don't know. That happened--
    Senator Specter.--the administration applying?
    Mr. Goldsmith. I do not know, sir. That happened after I 
left.
    Senator Specter. All right.
    Mr. Goldsmith. Sorry.
    Senator Specter. So when you were Assistant Attorney 
General for Office of Legal Counsel, did you articulate a 
standard of propriety for interrogation?
    Mr. Goldsmith. I certainly considered the issue and I don't 
believe I ever reached a decision on the merits of what that 
standard meant. No, sir. I'm sure I didn't, actually.
    Senator Specter. I'm sorry. I didn't hear that.
    Mr. Goldsmith. I did not. No, sir.
    Senator Specter. You have noted the difficulty that the 
President faces when he gets the matrix on a daily basis of 
extracting warnings from tens of billions of phone calls and e-
mails that fly around the world. How is that manageable, and 
how does that work?
    Mr. Goldsmith. That gets me quickly into areas that I'm 
both incompetent to discuss, and is probably classified. I 
just--I saw the product. I didn't see the process behind it.
    Senator Specter. Well, a plea of incompetency will suffice.
    [Laughter.]
    It will be sufficient. You don't have to plead classified 
information.
    Mr. Goldsmith. I'll just plead incompetence then, sir.
    Senator Specter. I don't accept the plea of incompetency, 
by the way.
    Mr. Goldsmith. Well, I don't--I mean, you're talking about 
the process whereby our government collects information from 
around the world and it ends up in a threat matrix in the 
morning for the President to see? I actually don't--I mean, I 
actually really can't tell you much about that.
    Senator Specter. Well, those facts which you have in your 
book show the scope of the difficulty in dealing with 
terrorism.
    Mr. Goldsmith. It's very hard.
    Senator Specter. And when I noted that, I wondered if it 
encroached upon classified information, even to comment about 
the number of calls which are--
    Mr. Goldsmith. If that statement was in my book it was 
cleared by the government and they determined that it wasn't 
classified.
    Senator Specter. You note in your book that the Federal 
Government ignored what you considered to be bin Laden's 1996 
declaration of war, and had pursued for 8 years following the 
bombing of the Trade Towers in 1993 until 9/11/2001 a law 
enforcement approach as opposed to the declaration of war, and 
that, as you characterized it, the administration at that time 
was timid, reluctant to really take the kind of bold steps 
which were necessary. Do you think we have outlived that kind 
of timidity?
    Mr. Goldsmith. Well, certainly after 9/11 the risk aversion 
and the timidity that characterized the fight against terrorism 
was no longer acceptable, and certainly after 9/11 that 
attitude is no longer acceptable. We have not had that 
attitude. The President has not had that attitude. Am I 
understanding your question correctly?
    Senator Specter. What's that?
    Mr. Goldsmith. Am I understanding your question correctly?
    Senator Specter. Well, the question is whether we are not 
timid anymore. You have described what you called as 
``retroactive discipline"--
    Mr. Goldsmith. Right.
    Senator Specter.--about concerns that officials have about 
being sued or about being held accountable in some court.
    Mr. Goldsmith. Yes, sir.
    Senator Specter. Are we past that stage?
    Mr. Goldsmith. No, sir, we're not. Not at all. You know, 
basically, inside the administration--this is how I started my 
testimony. Inside the administration, every day there's this 
fight between wanting to do everything you can and people being 
afraid that they're going to violate the law. We are definitely 
not past the timidity, and anxiety, and really risk aversion in 
the face of the law, even though at the same time the 
government is obviously being very aggressive, and trying to 
manage those two pressures is very hard.
    Could legislation help if Congress were to pass a standard, 
perhaps a good faith standard, no liability, or would that be 
outweighed if Spain or Belgium decides to invoke a violation of 
rights against humanity?
    Mr. Goldsmith. I think that there's nothing much we can do 
to stop foreign courts from trying to, if they want, prosecute 
our officials. I do think that there are things Congress could 
do to tamp down the extraordinary anxiety that people in the 
intelligence community feel about making sure they comply with 
the law.
    Senator Specter. Well, what could Congress do, if anything, 
on that subject?
    Mr. Goldsmith. There are lots of things they could do. One, 
is legislative very clearly, which is easier said than done, I 
realize. Two, is to try to come up with mechanisms of 
accountability that aren't necessarily tied to criminal 
prosecution, that are tied to reporting, oversight, and 
something like that.
    Three, perhaps have some kind of a safe harbor or good-
faith immunity or something like that. I haven't thought about 
that as much. But the main concerns, in my experience, are 
criminal prohibitions on intelligence officials that are not 
precise and in which there's pressure to go into the gray area, 
but obviously pressure against going into the gray area for 
fear of the law.
    As I said in my statement, we ask people in the CIA to take 
out liability insurance for future prosecution. It's just a 
standard part of the way they operate out there. That's a crazy 
signal to send, in my opinion, for people that the country's 
asking to take steps at the edge of the law to keep us safe.
    Senator Specter. Well, that is something I think that 
Congress ought to consider. Would you be willing to think about 
it some more--
    Mr. Goldsmith. Yes, sir.
    Senator Specter.--and give us a recommendation as to what 
we might do?
    Mr. Goldsmith. Yes, sir. I will. Thank you.
    Senator Specter. Thank you very much, Professor Goldsmith.
    Mr. Goldsmith. Thank you.
    Senator Specter. Thank you, Mr. Chairman.
    Chairman Leahy. You know, I would certainly be willing to 
consider legislation, but it's very difficult with an 
administration that: 1) won't tell you what it's doing; 2) 
won't tell you what it bases what it's doing on; 3) even if 
they negotiate--on the rare instances they'd actually talk to 
you about the legislation and even negotiate with it and agree 
to it, they often change their mind at the last minute and come 
up with something entirely different than what they've agreed 
to, and say you're favoring the terrorists if you don't go 
along with them.
    And last, upon the rare occasions where they actually sat 
down and worked something out, then they, as they did with 
torture, put a signing statement saying, but we don't have to 
follow this if we don't want to. I agree with you on the idea 
that liability insurance seems an awful thing to ask of people, 
and I know many, many people in the CIA. I've talked with many 
all the time. I know they're very dedicated to this country.
    But I might add that at some point this administration has 
got to realize they're one of three equal branches of 
government, and the idea that they do not have to in any way 
work with the Congress on these issues does a terrible 
disservice not only to the country, but to those CIA agents 
you're talking about.
    The legislation could be written. I suspect Senator Specter 
and I could, in a matter of hours, write the legislation 
necessary. But there's no incentive to do so when the 
administration says it's a one-way street and we're not even 
going to tell you what's going on.
    Mr. Goldsmith. Could I just comment on that, sir.
    Chairman Leahy. Sure.
    Mr. Goldsmith. I mean, I just want to reiterate, I think 
that if you think you could reach agreement on that, I think--
or something like that, listen, the people in the intelligence 
agencies, in my experience, they really want to do the right 
thing. They really want to comply with the law. As Mr. Shoyer 
said, you can't go to the bathroom in the CIA without talking 
to a lawyer.
    But they're under pressure to do things to keep us safe, 
and there are these vague criminal prohibitions. I really think 
that if we could do something to take that kind of corrosive 
pressure off of them, while of course coming up with mechanisms 
to make sure they comply with the law, I think it would be 
enormously valuable.
    Chairman Leahy. Professor Goldsmith, I agree with you 
completely.
    Mr. Goldsmith. I know. I'm just--
    Chairman Leahy. But, unfortunately, we can't get anybody 
down at 1600 Pennsylvania Avenue to work with us on this in an 
open and honest fashion. What happened under the FISA 
negotiations where they, at the very last second, changed the 
position they had taken, changed the position they had agreed 
to, reduces credibility up here. Possibly with the new Attorney 
General we may have that. That certainly is one of the 
questions, and when we have the hearing we'll ask him.
    But this administration makes it very difficult to protect 
those CIA agents, or others, simply because they have destroyed 
a great deal of trust of people, I might say, on both sides of 
the aisle who could be helpful. But I do thank you for being 
here. I am going to leave, but I'm going to turn it over to 
Senator Whitehouse. I thank you for coming. I mean that 
seriously. You went there to serve your country. I believe you 
did, because you kept your conscience. That's the most 
important thing any one of us can do in serving our country.
    Mr. Goldsmith. Thank you, Senator.
    Senator Whitehouse [presiding]. Thank you, Chairman.
    Mr. Goldsmith, I just had one other question that I wanted 
to go over with you. It comes from your book, and it connects 
back to the conversation that you just had with the 
distinguished Ranking Member, Senator Specter, related to the 
torture standard of ``pain equivalent in intensity to the pain 
accompanying serious physical injury, such as organ failure, 
impairment of bodily function, or even death.''
    As you point out, that was an unfamiliar legal framework. 
Could you tell us where it was adopted from?
    Mr. Goldsmith. I'm not going to get the details of this 
exactly right. I could look in my book and get it. But it came 
from a health care benefit statute and it was designed, as I 
recall, to--I might not get this exactly right. To try to 
define the circumstances under which there was an emergency 
situation warranting health care benefits. Is that right? I 
think that's right.
    Senator Whitehouse. I think that's right. Completed 
unrelated to the historic norms governing torture.
    Mr. Goldsmith. It wasn't related to the torture statute. 
Now, you know, usually--I think. I don't know, but I think the 
lawyers who were doing that, they looked around the U.S. Code 
to try to--``severe pain''--the phrase ``severe pain'' is very 
hard to figure out what that means in the abstract. So I think 
it was OK to look around other parts of the U.S. Code. I don't 
think that was the best analogy.
    Senator Whitehouse. Indeed. The ``pain accompanying serious 
physical injury, such as organ failure, impairment of bodily 
function, or even death'' would presumably be a level of pain 
greater than that applied with, for instance, cigarette burns, 
which was one of the--you know, sort of from the bad movies of 
my childhood, how people were tortured and tormented by 
evildoers.
    But clearly, being burned with cigarettes would not be 
equivalent to organ failure, or impairment of bodily function, 
or death. So it left a pretty broad window for things that I 
think the average American would consider to be abusive.
    Mr. Goldsmith. This is one of the concerns I have with the 
opinion, sir.
    Senator Whitehouse. Yes. All right. Well, I will not keep 
you longer. I appreciate very much your testimony. You and I 
probably disagree about a great number of things, but what has 
impressed me about your testimony, what has impressed me about 
your book, what has impressed me about your service is that you 
very clearly see the law as a thing that has substance, and 
shape, and form, and significance, and it's not just, to you, a 
big grab-bag of terminology that you pull out in order to 
achieve the result that you want. I think if more people 
thought that way, we would have less disagreement and more 
productive legislation and government, both. So, I thank you 
for that and I thank you for your testimony.
    I would like to ask that the record stay open for a week to 
accommodate the questions for the record that you were asked. 
If you could get the answers in within a week, is that 
reasonable? Would you like more?
    Mr. Goldsmith. Could I have a little bit more time, please? 
I've got a very busy--
    Senator Whitehouse. You tell me.
    Mr. Goldsmith. A couple of weeks, please.
    Senator Whitehouse. Three weeks.
    Mr. Goldsmith. Thank you.
    Senator Whitehouse. OK. There it is. Thank you.
    Mr. Goldsmith. Thank you. Thank you, Senator.
    Senator Whitehouse. We're adjourned.
    [Whereupon, at 12:04 p.m. the hearing was adjourned.]
    [Questions and answers and submissions for the record 
follow.]




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