Position: Assistant Attorney General, Office of Legal Counsel, Department of Justice
Tenure: October 2003 to June 2004

In months following the September 11th attacks, the White House sought far broader powers in the conduct of its war on terror. The aim, the administration would later explain, was a need for intelligence necessary to wage that war. Jack Goldsmith, longtime conservative and head of the Justice Department’s Office of Legal Counsel (OLC), resisted efforts to disregard the Geneva Convention and argued that the war did not give the President the power to torture prisoners.

Leading the effort to construct the legal rationale for sweeping new powers was a team of lawyers centered in the Office of the Vice President and the civilian leadership at the Pentagon. They enlisted the assistance of a very bright and very conservative young lawyer named John Yoo in the OLC, the office that provides legal guidance to the Executive branch.

In August 2002, Yoo produced a memo outlining legal interrogation standards for prisoners captured during the Afghan war. The memo, which became infamously known as the “torture memo,” redefined torture so that anything short of death or maiming would be permissible. It cleared interrogators to ignore many criminal statutes and military guidelines. It also radically redefined the Constitution’s separation of powers, granting almost unlimited powers to the President in his role as Commander-in-Chief. These changes reflected the view of many in the White House, including the President and Vice President, that the power of the presidency had been greatly and wrongly curtailed in the wake of the Watergate scandal.

Resistance to the new guidelines would come from numerous sources, including Secretary of State Colin Powell and military lawyers. Goldsmith, with his had impeccable conservative credentials, was an unexpected site of pushback. Educated at Oxford and Yale Law School, he was known for his arguments claiming that international law was not binding in U.S. courts. But Goldsmith had doubts about the Administration’s legal stance. Shortly after assuming control of OLC, Goldsmith issued an opinion that the Fourth Geneva Convention, protecting the rights of prisoners in occupied countries, applied to all prisoners in Iraq, even those with potential ties to al Qaeda. In December 2003, he told the Pentagon that Yoo’s “torture memo” was “under review” and should no longer be used to guide policy. Such a reversal was extraordinary.

Goldsmith, who previously taught at the Universities of Chicago and Virginia, left government in June 2004 to join the law faculty at Harvard.