Et tu, Goldsmith? [Updated]

Slated for publication in the hard-copy edition of the September 9 NYT Magazine, this article is a must-read.

It explores Jack L. Goldsmith's brief tenure at the Office of Legal Counsel, which (per the magazine) is "the division of the Justice Department that advises the president on the limits of executive power." The article focuses on Goldsmith and "a small group of administration lawyers," which he apparently led "in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror."

I read half the article this morning and half over lunch; and it was in the second half where I found the most dramatic sequences and recognized in Goldsmith's story the strength and honor that seems lacking in the "tell-all" tales of other former Administration officials like George Tenet.

Consider, in particular, Goldsmith's scuffle over the "torture memos." By way of background, from the article:

... About six weeks after he started work, Goldsmith became aware that there might be what he calls “potentially problematic” opinions drafted by the Office of Legal Counsel. These were the “torture memos,” one of which was written in August 2002 and the other in March 2003. The August opinion defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” Goldsmith concluded that this opinion defined torture far too narrowly. He also had concerns about the March 2003 opinion, the contents of which remain classified but which dealt with the military interrogation of aliens held outside the United States.

And then, the moment of truth:

... in June of that year [2004], [John] Yoo’s August 2002 opinion was leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” Goldsmith told me, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew the opinion. Goldsmith made the decision himself, in consultation with [his deputy Patrick] Philbin and Deputy Attorney General James B. Comey, both of whom, Goldsmith says, agreed it was the right thing to do. He then told Ashcroft, who was, Goldsmith writes, “unbelievably magnanimous: it had happened on his watch, and he could have overruled me, and he didn’t.” Goldsmith was concerned, however, that the White House might overrule him. So he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story.

If you read the entire NYT Magazine article, you'll likely find multiple points about Goldsmith's views that are confusing if not troubling – e.g., "... he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war." But seemingly, when it mattered most, Goldsmith sacrificed himself to do the right thing.