The ironic thing about Goldsmith’s lengthy critique of my book, Bush’s Law: The Remaking of American Justice, is that Goldsmith and I agree about far more than we disagree. The Bush administration’s penchant for secrecy and the lack of transparency in its war on terror, he writes, were damaging and self-defeating. This is a central theme of his book, The Terror Presidency, and a central theme of mine as well. Time and again, I found in the reporting for my book, major policy decisions that could have been executed with the knowledge and blessing of Congress and the courts were instead shrouded in secrecy, only to implode later once the administration’s go-it-alone tactics became public. On this much, Goldsmith and I agree.
Where we diverge, of course, is on the decision by my editors at The New York Times to publicly disclose what is now known as the Terrorist Surveillance Program (a catchy name that, as I discuss in my book, did not even exist until the National Security Agency’s domestic wiretapping program became public and the White House public-relations machine went into damage control mode). Goldsmith dusts off arcane and seldom-used legal statutes to argue that our publication of the story was a crime. Reading his arguments, I thought for a moment that Alberto Gonzales was still attorney general. Gonzales, you’ll remember, floated the idea of prosecuting the Times under the Espionage Act over the story that Jim Risen and I wrote disclosing the wiretapping program. The trial balloon was met with such a gale force of protest that Gonzales quickly retreated and dropped the idea. Goldsmith shows no such political acumen. In his review, he cites one portion of Justice Stewart’s opinion in the landmark Pentagon Papers case; I’d point to another: "In the absence of the governmental checks and balances present in other areas of our national life," Stewart wrote, "the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry--in an informed and critical public opinion which alone can here protect the values of democratic government."
In publishing our story about the wiretapping program in December of 2005, the editors at the Times believed that the public interest in knowing about a secret program that stretched the legal boundaries of presidential power outweighed the national security harm that the White House claimed disclosure would cause. Osama bin Laden certainly knew that the N.S.A. was trying to wiretap him, but Americans did not know the agency was circumventing established judicial procedures in order to do it. Curiously, Goldsmith acknowledges only parenthetically his own central role in challenging the legality of the wiretapping program in 2004 as a senior lawyer at the Justice Department. The casual reader of his critique might have no idea that Goldsmith’s own concerns that the program might be illegal set off a quiet revolt inside the Justice Department against the Bush White House unlike any seen since the Saturday Night Massacre at the height of Watergate. His tough stand, once it became known publicly, made Goldsmith a hero to those on the left who had once sought to vilify him as just another neo-con lawyer. Now, however, in attacking our disclosure of a program that he himself once challenged, Goldsmith appears to be tacking back to the right. Political winds are indeed fickle.
If there was a clear public interest in 2005 in knowing about the wiretapping program, the response to our story in the last two-and-a-half years has certainly borne that out and validated the Times’ decision to publish our piece. Multiple investigations were launched into the program, some still ongoing, and more than 40 lawsuits were filed. One federal judge found the program illegal and unconstitutional, only to be overturned on technical grounds on appeal, while another judge just last month rejected the White House’s assertion that the president’s commander-in-chief power trumped federal wiretap law. Congress went through more than two years of tortured debate over federal surveillance law in response to our story, reaching a decision just last month. And Alberto Gonzales’ own part in the wiretapping program helped seal his departure as attorney general, as details emerged about his role as White House enforcer, visiting the hospital room of an ailing John Ashcroft to get his legal sign-off on the wiretapping program. (Goldsmith was at the attorney general’s bedside for the remarkable scene, but this key detail goes unmentioned in his critique as well.) The kind of robust public debate we saw spurred by the wiretapping story--centering on the tension between national security and civil liberties in a time of war--is exactly what Justice Stewart said we should expect in an open and democratic society. Yet if Goldsmith had his way, the public would still have no idea about any of it.
And what of the potential harm to national security from our story? The 1950 statute that Goldsmith cites in arguing that the publication of our story may have been a crime demands that disclosure must be found "prejudicial to the safety or interest of the United States." There was damage done to national security from our story, Goldsmith assures us, but he cannot tell us what it was. The answer, he says, is classified.
Eric Lichtblau is a reporter for The New York Times.
By Eric Lichtblau