One common article appearing in each of the four conventions, Article 3, provides rules that govern "conflicts not of an international character," such as civil wars. The President concluded early on that the global war against Al Qaeda had a decidedly "international character." In Hamdan v. Rumsfeld, a majority of the Supreme Court disagreed. This narrow legal dispute -- again turning on an Administration interpretation that was both reasonable and, indeed consistent with text, history and precedent -- hardly warrants the sweeping, dismissive, and entirely conclusory criticisms so frequently heard.
I focus on these types of criticisms not because they are so extraordinary, but because they are unfortunately so typical of people who substitute their policy views for any serious legal analysis and who would turn a good-faith legal disagreement into a battle over the purported existence or non-existence of the rule of law. The irony, of course, is that the law requires a serious analysis of text, precedent, and history, and it does not serve the rule of law to substitute a smug sense of outrage for that kind of analysis.
In fact, this Administration has displayed a strong commitment to the rule of law, with all that entails and I suspect, and I admit it is a suspicion tinged with hope, that the next Administration will maintain far more of this Administration's legal architecture than the intemperate rhetoric in some quarters would seem to suggest. I remain concerned, however, when relentless criticism of this Administration's policies moves beyond simply disagreement into a realm where critics, and even public officials, seek to invoke the criminal justice system to vindicate their policy views. For instance, in June of this year, 56 Members of Congress sent me a letter requesting that I appoint a special counsel to conduct a criminal investigation of the actions of the President, members of his cabinet, and other national security lawyers and intelligence professionals into the CIA's interrogation of captured members of Al Qaeda.
The Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.
Casual requests for criminal investigations, as well as the even more prolific conflation of legal disagreements with policy disagreements, reflect a broader trend whose institutional effects may outlast the current Administration and could well endanger our future national security.
I have spoken in more detail about these concerns in several recent speeches, in which I drew substantially on former Assistant Attorney General Jack Goldsmith's book, The Terror Presidency.
Let's all remember what Professor Goldsmith has said about what he saw during his time in the Administration. Although he may have disagreed with some of the legal reasoning employed in making those decisions, he made it perfectly clear that despite his disagreement he saw no evidence that those who provided that advice did so in bad faith, for any reason other than to protect the country during a time of war, or with the belief that what they were doing was in any way contrary to the law. It is important for those who are so quick to condemn the attorneys who were working nearly around the clock, for months on end, in the wake of September 11th , to keep that in mind.
In his book, Professor Goldsmith describes what he calls "cycles of timidity and aggression" among political leaders and commentators in their attitudes towards the intelligence community. These cycles have played out before - from the 1960s through the 1990s, but those past cycles are now mainly of historic interest. The most recent cycle is of much more than historic interest. As Professor Goldsmith explains, following the September 11th attacks, "The consistent refrain from the [9/11] Commission, Congress, and pundits of all stripes was that the government must be more forward-leaning against the terrorist threat: more imaginative, more aggressive, less risk-averse."