Jack Goldsmith

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Jack Landsmith Goldsmith (1962-) is Henry L. Shattuck Professor of Law at Harvard Law School, who had previously served, in the George W. Bush Administration, first in the General Counsel's office at the Pentagon and then as a legal adviser to, and then Assistant Attorney General for the Office of Legal Counsel. Previously, he had been active, academically, conservative view of foreign affairs, in which he decried what he called the "judicialization of international politics". He continues to write and speak in this area.

Prior to Bush Administration

He received his first undergraduate degree from Washington & Lee University, Summa Cum Laude 1984, and a second B.A. from Oxford University in 1986. His law degree is from Yale (1989), after which he took a M.A. (Hons.) at Oxford, and then obtained a Diploma in Private International Law from the Hague Academy of International Law in 1992.[1]

Goldsmith clerked for Justice Anthony Kennedy of the U.S. Supreme Court, and for Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit.

After working as an associate in the Washington law firm, Covington and Burling, he became joined the faculty at the University of Chicago Law School, From 1991 to 1992, he served as legal assistant to Judge George Aldrich, of the Iran-U.S. Claims Tribunal in The Netherlands.

In 1997, he wrote several papers on the relationships among international law, politics, and U.S. policy. One questioned the "modern position" that customary international law has the status of U.S. federal statutes. [2] He and Curtis Bradley elaborated that the U.S. courts should not allow international humanitarian law, in particular, to supersede the decisions of the Legislative and Executive Branches of the U.S. government. [3]

In a law review article, he wrote about the flaws of the International Criminal Court.[4]

Department of Defense

William J. "Jim" Haynes II, general counsel of the U.S. Department of Defense, head of Goldsmith from, among others, John Yoo, a group of "conservative intellectuals — dubbed 'new sovereigntists in Foreign Affairs magazine — who were skeptical of the creeping influence of international law over American law." Goldsmith felt this trend jeopardized the democratic control over U.S. norms. [5]

Starting in September 2002, he took a position as Special Counsel to Haynes. He and Haynes agreed on that "that gave birth to international human rights lawsuits in U.S. courts" were a bad development. One such case was Filartiga v. Pena-Irala.

He had argued against the U.S. refusal to enter into the Rome Statute that set up the International Criminal Court, and the Kyoto Protocol on greenhouse gases, not necessarily on the merits of their case but that they substituted international rules, for the decisionmaking of by U.S. democracy and national self-interest. At Defense, he sent a memo to Defense Secretary Donald Rumsfeld, suggesting that the International Criminal Court might indict American officials for their actions in the war on terror. [6]

Goldsmith had planned to leave in March 2003, to take up a new academic appointment more suited to his family. At that time, however, Jay Bybee resigned as head of OLC. The White House's first choice to replace him was John Yoo, an expert on presidential war powers then on the OLC staff.

The "War Council"

Yoo was a key figure in what Goldsmith called an immensely powerful yet secret group of Administrative lawyers, which approached legal strategy for the War on Terror policy, often before the National Security Council, U.S. State Department, or U.S. Defense Department had examined the policy and legal aspects. It consisted of:

The U.S. Justice Department was represented only through Yoo, whose close working relationship to Addington and Gonzales offended Yoo's second-level manager, John Ashcroft, the incumbent U.S. Attorney General. Gonzales distrusted Ashcroft, whom he believed pushed a social conservative agenda to the political detriment of the President. Ashcroft blocked Yoo's appointment to run OLC.

Haynes suggested Goldsmith for OLC; Goldsmith then met with Addington. In their first meeting, Goldsmith was impressed with Addington's grasp of Goldsmith's thinking about internationalization, citing an appellate court ruling that had cited Goldsmith's Harvard Law Review article. They did not discuss, however, Goldsmith's belief that "the administration should embrace rather than resist judicial review of its wartime legal policy decisons...[Goldsmith] could not understand why the administration failed to work with a Congress controlled by its own party to put all its antiterrorism policy on a sounder legal footing. [7] Goldsmith was confirmed by the Senate in July 2003.

Office of Legal Counsel

On October 6, 2003, he was sworn in as Assistant Attorney General for the Office of Legal Counsel, and resigned nine months later. OLC was challenging, and he went against the tradition, that OLC opinions had the force of legal precedent and rarely should be overturned; too much government policy rested on their stability. [8]

Soon after taking office, Goldsmith determined that certain Geneva Convention protections applied in the Iraq War, which Addington furiously said could not change the February 2002 presidential decision that "...terrorists do not receive Geneva Convention protections.[9] You cannot question his decision." [10] This decision was the root of the Administration's extrajudicial detention and intelligence interrogation policies.

Addington, from Goldsmith's perspective, had enormous power through the Vice President. Addington, in Goldsmith's view, was not an expert on the legal issues of war and terrorism but was absolutely committed to a theory of "prerogative presidential power", in which the President, regardless of Congress, must have the authority to do whatever he deemed necessary to prevent terrorist attacks. The job of the Executive Branch lawyers were to make Presidential decisions legal. The idea, according to Goldsmith, derives from ideas from Locke, Jefferson, Lincoln and Franklin Roosevelt. Addington, however, took it farther than Roosevelt and Lincoln, who still coordinated with Congress. Addington and Cheney, however, well before 9/11 had a goal of reversing what they considered saw as Congress' intrusions on unitary executive power. [11] Many of their opinions came from an activist tradition that had begun in the Reagan Administration, and had a core goal of expanding presidential power as a necessity of correcting a dangerous trend in American policy;[12] the idea did not begin on September 11, 2001. [13]

He resigned nine months later, and, according to the New York Times, "had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies" endorsed by OLC attorneys including John Yoo. "Goldsmith considered these opinions, now known as the “torture memos,” to be tendentious, overly broad and legally flawed, and he fought to change them. He also found himself challenging the White House on a variety of other issues, ranging from surveillance to the trial of suspected terrorists." He believed he brought the Administration more into conformance with law, but "'I was disgusted with the whole process and fed up and exhausted'"

After OLC

After leaving DOJ, he became a visiting scholar at the conservative American Enterprise Institute (AEI), working worked on international law, sovereignty, and intelligence reform. He joined the Harvard faculty, and then became a tenured professor. He has spoken to a number of Federalist Society meetings.


  1. "Jack Landsmith Goldman", Harvard Law School Faculty Directory
  2. Goldsmith, Jack Landman & Curtis Bradley (1997), "Customary International Law as Federal Common Law: A Critique of the Modern Position", Harvard Law Review 110: 815
  3. Goldsmith, Jack Landman & Curtis Bradley (1997), "The Current Illegitimacy of International Human Rights Litigation", Fordham Law Review 66: 319
  4. Jack Goldsmith (2003), "The Self-Defeating International Criminal Court", University of Chicago Law Review
  5. Jack Goldsmith (2007), The Terror Presidency, W.W. Norton, p. 21
  6. Jeffrey Rosen (September 9, 2007), "Conscience of a Conservative", New York Times
  7. Goldsmith, The Terror Presidency, pp. 27-29
  8. Goldsmith, The Terror Presidency, pp. 145-146
  9. George W. Bush (July 20, 2007), Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, Executive Order 13440
  10. Goldsmith, The Terror Presidency, pp. 41
  11. Goldsmith, The Terror Presidency, pp. 79-85
  12. House Select Committee to Investigate Covert Arms Transactions with Iran and senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition (1987), Report of the Congressional Committees investigating the Iran-Contra Affair, p. 457
  13. Goldsmith, The Terror Presidency, pp. 86-90