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The Plain Dealer (Ohio)

How the Law Lost Out to Laws of Politics at the Justice Department

Elizabeth Sullivan

The rule of law in American governance should be like post-season baseball: reassuringly ritualistic in all of its ramifications.

Partisanship has to be a passing phenomenon, like LeBron James rooting for the Yankees -- an oddity to be forgotten once his feet hit the floor at the Q at the end of the month.

Constants like the nine-inning pace, the passions and the adrenaline should matter more than the fleeting fumbles or Yankees caps. That's what baseball is, in all its glory, and why we love it and look forward to it -- especially if our boys are playing in October.

The "inside baseball" of how government lawyers advise elected officials on what is lawful -- or not lawful -- used to be similarly unchanging.

As described by conservative legal scholar Jack Goldsmith in "The Terror Presidency," it was a process governed by ritual and real estate.

Until the Clinton presidency, that is -- when the team of smart Justice Department lawyers tasked with keeping officials' feet out of the legal mire were no longer able to judge their high influence by where their offices lay.

Until 1993, Goldsmith writes, the assistant attorney general heading the Office of Legal Counsel worked steps away from the attorney general, literally at his or her right hand, in a next-door office suite. That year, Bill Clinton turned that space over to his pal Webster Hubbell, the associate attorney general. The pattern continued in the Bush administration when Attorney General John Ashcroft installed his chief of staff, David Ayres, in the cushy suite -- and the OLC lawyers 50 yards down the hall.

As Goldsmith notes, "In Washington, geography is one of the currencies of power." And after running the OLC for nine months in 2003 and 2004, Goldsmith, now a Harvard law professor, saw for himself how the OLC's inhibited access worked:

The "law" became more about expedience and access and less about careful, factual opinions. A cadre of insiders, led by White House counsel Alberto Gonzales and the sharp-tongued David Addington, legal counsel to Vice President Dick Cheney, were the "war council" who vetted legal opinions, in place of Ashcroft and his staff.

As long as OLC lawyers loyally stretched arguments to cover executive branch wants and potential excesses with poorly argued pseudo opinions, things piped along.

When the lawyers weren't quite so cooperative -- as happened after Goldsmith took over in October 2003 -- the results were name-calling and other forms of intimidation until a new legal lapdog could be found.

Goldsmith doesn't use the word "lapdog" in his book -- probably because the lapdogs were his friends. He blames their poor legal reasoning on the constant tap of fear after 9/11 that drove many to try to stretch legal constraints to have the maximal impact on the hunt for terrorists.

He wasn't willing to do quite the same. It turns out Goldsmith's conservatism wasn't political -- just as his legal opinions on torture and secret surveillance of U.S. citizens and Guantanamo weren't for hire.

Ironically, however, this "no-man" among yes-men started gumming up the works.

Even as they chafed, most officials in the White House, the CIA and the Pentagon were scared to go against OLC rulings -- because of the fear of later criminal liability.

That's what lay behind the Wednesday night hospital massacre of March 2004, when an irate Gonzales tried to bypass Goldsmith and his allies at Justice and get a very sick Ashcroft to overrule them from his hospital bed. Ashcroft refused.

Goldsmith's book came out last month, but its immediacy was made clear last week, when the New York Times reported that his replacement, Steven Bradbury, signed off on two secret 2005 memos contradicting earlier Justice opinions.

One of them, according to the Times, approved harsh CIA interrogation techniques, including simulated drowning, freezing temperatures and head slapping, even as the White House was publicly disavowing similar measures and saying -- as it continues to say -- that it does not condone torture.

The question, of course, is not whether torture is allowed -- clearly, it is -- but to what extent the legal lapdogs of October are still redefining wrong to appear to be something right.

Sullivan is The Plain Dealer's foreign-affairs columnist and an associate editor of the editorial pages. To reach Elizabeth

© 2007 The Plain Dealer

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