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39–358 PDF 2007

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

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

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

(1)

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 

2

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. 

3

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, 

4

you wrote: ‘‘Something seemed wrong. It seemed unnecessarily extreme to hold a 22-year-old foot soldier in a remote wing of a rundown 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. 

5

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. 

6

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 

7

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 

8

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. 

9

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 

10

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 

11

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 

12

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. 

13

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 

14

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 

15

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. 

16

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—

17

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. 

18

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 

19

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 

20

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’’ ? 

21

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. 

22

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 AttorVerDate 0ct 09 2002 15:10 Dec 06, 2007 Jkt 039358 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39358.TXT SJUD1 PsN: CMORC
23

ney 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. 

24

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 

25

‘‘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 comVerDate 0ct 09 2002 15:10 Dec 06, 2007 Jkt 039358 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\39358.TXT SJUD1 PsN: CMORC
26

mittee 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. 

27

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 

28

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? 

29

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. 

30

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 

31

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. 

32

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. 

33

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′′—

34

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 

35

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 

36

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 

37

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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