Hearing of the Senate Judiciary Committee - Preserving the Rule of Law in the Fight Against Terrorism

Statement

Hearing of the Senate Judiciary Committee - Preserving the Rule of Law in the Fight Against Terrorism

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SEN. CHARLES E. SCHUMER(D-NY): Thank you, Mr. Chairman, thank you for -- excuse me -- thank you for holding this hearing and I want to thank Mr. Goldsmith and congratulate him -- 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 2004 when you and Jim Comey and others had to race to the hospital room of John Ashcroft to prevent a true miscarriage of justice and I know Senator Feinstein has walked you through that, and it seems to me just almost the exact same recollection that Jim Comey had with the exception that you included facial gestures in your testimony.

But I do 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.

SEN. 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 a 100 percent certain about that.

SEN. SCHUMER: Do you know if the vice president had any role in that?

MR. GOLDSMITH: I do not know.

SEN. SCHUMER: Okay. 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.

SEN. SCHUMER: Why?

MR. GOLDSMITH: Just to have -- they were extraordinary events and I wanted to -- wanted there to be a -- as I recall, they are not very good notes but I wanted there to be some kind of a record somewhere.

SEN. SCHUMER: All right. Could you provide those to the committee?

MR. GOLDSMITH: They are not in my possession. They are in the Department of Justice.

SEN. 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, and 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 could just say this. I thought that during that period that there was a legal basis for the transition period. I'll just have to leave it at that.

SEN. SCHUMER: Okay, thank you. Let's go to the TSP program itself. One of the lessons you say we should learn from the past six 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 except when it's classified information with the American people. With the Congress that always seems to -- it works. The founding fathers, 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 Attorney General Gonzales that there was no serious internal dissent about the TSP program?

MR. GOLDSMITH: Well, this is a difficult question to answer because -- 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.

SEN. 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 that this is why -- the point about labels. That there is a technical interpretation of what he said that is true and -- but it's very difficult to talk about it and there's confusion about what the labels refer to and it's very difficult to talk about it in an unclassified setting.

I could -- I could certainly explain it to you in much greater detail in a closed session.

SEN. SCHUMER: Well, that will be up to the chairman and the administration which might not let you testify even if we want to.

SEN. 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 are 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, if -- we'd have to be more concrete about what opinions and what you wanted to know and I can't answer a question like that in the abstract.

SEN. 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, and I certainly would meet with Senator Schumer and any other senator who wish to in that regard. Senator Schumer, I apologize for the interruption but we'll --

SEN. SCHUMER: Thank you Chair. Yeah, I think you could --

(Cross talk)

SEN. LEAHY: -- good time.

SEN. SCHUMER: 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: Which -- I'm sorry, Senator, which legal analysis?

SEN. SCHUMER: The analysis justifying the TSP program -- the way they constructed it.

MR. GOLDSMITH: Yeah, really all I can tell you -- really all I can tell you is who was read into the program in the justice department. And when I was there and it was me, the attorney general, the head of OIPR, Jim Baker, and subsequently, Deputy Attorney General Comey.

SEN. SCHUMER: All right, was there any one who should have been read into the program who was excluded?

MR. GOLDSMITH: Well, I certainly -- I had a bit of -- there was a little bit of a struggle getting Mr. Comey read into the program.

SEN. SCHUMER: Really?

MR. GOLDSMITH: And after that I wanted to --

SEN. SCHUMER: He was only deputy attorney general.

MR. GOLDSMITH: Right. And I certainly wanted to have more help from my lawyers in trying to figure out an enormously complicated issue, and 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.

SEN. SCHUMER: Any legal reason why Comey shouldn't be read into the program, or did you just -- 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.

SEN. SCHUMER: 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. Has any -- did -- 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, sir, prevent from writing, recriminations --

SEN. SCHUMER: One, prevention from writing the book, recriminations, and dissent because -- or attempt to prevent you from disclosing some of the information because it was covered by executive privilege.

MR. GOLDSMITH: Okay. 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 -- the third question again, please?

SEN. SCHUMER: Executive privilege. Any one tried 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 and maybe I could ask them and see if they mind.

SEN. SCHUMER: Okay, but I'm not asking you the details, I'm just asking you --

(Crosstalk)

MR. GOLDSMITH: There were some conversation about it, yes sir.

SEN. SCHUMER: There was -- did any -- were 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 are 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 is 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.

SEN. SCHUMER: All right, okay.

MR. GOLDSMITH: Thank you.

SEN. SCHUMER: Could I just ask you to do this in writing because my time is running out and chairman's been generous.

You wrote that some of the OLC opinions you read when you came into office were 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, okay?

Thank you Mr. Chairman.

SEN. LEAHY: Can you do that, Professor?

MR. GOLDSMITH: I have to think about it. I'll try -- I'll give some kind of an answer to that. I'm not sure how much detailed it could be.

SEN. SCHUMER: Thank you. Thank you Mr. Chairman

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