1 Goldsmith did serve first as special counsel to the general counsel of the Department of Defense from September 2002 to June 2003, but he describes that position as a “relatively anonymous Defense Department job” (p. 22), which figures little in his narrative. The book focuses, instead, on the 9½ months from October 2003 to July 2004, during which he served as assistant attorney general in charge of the Office of Legal Counsel. Even in this important capacity, he met with President Bush only twice and never spoke with him.

2 Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales Regarding Standards of Conduct for Interrogation Under 18 U.S.C. §§2340–2340A (Aug. 1,2002) [hereinafter August 2002 memorandum], at <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf>; Memorandum from Deputy Assistant Attorney General John, C. Yoo to William, J. Haynes II, General Counsel, Department of Defense Regarding Military Interrogation of Alien Unlawful Combatants Held Outside the United States (Mar. 14, 2003) [hereinafter March 2003 memorandum], at <http://www.fas.org/irp/agency/doj/olc-interrogation.pdf> >Google Scholar.

3 Preserving the Rule of Law in the Fight Against Terrorism: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 7 (2007) (statement of Jack Goldsmith) [hereinafter Senate Hearing], at <http://www.access.gpo.gov/congress/senate/senate4chl10.html>.

4 18 U.S.C. §2441 (2000).

5 50 U.S.C. §§1541–1548 (2000).

6 50 U.S.C. §§1801–1862 (West 2003 & Supp. 2006).

7 18 U.S.C. §§ 2340–2340B (2000 & Supp. IV 2004).

8 50 U.S.C. §§1805(f), 1811, 1822(a), 1824(e), (f).

9 See, e.g., Constitution Project (Reporter Raven-Hansen, P.), Deciding to Use Force Abroad: War Powers in the System of Checks and Balances 31–35 (2005), at <http://www.constitutionproject.org> >Google Scholar (report by the War Powers Initiative of the Constitution Project).

10 Judiciary Act of 1789, ch. 20, §35, 1 Stat. 73, 93 (codified at 28 U.S.C. §511 (2000)).

11 Senate Hearing, supra note 3, at 60–61.

12 Am. Bar Ass’n, Model Rules of Professional Conduct, Rule 1.1 (2002).

13 Tamara, L. Tompkins, Note, A Theory of Ethical Conduct for the Legal Adviser to the State Department: Applied for a Fresh Look at Abraham Softer and the ABM Treaty Reinterpretation Debacle , 7 Geo. J. Legal Ethics 523, 564 (1993)Google Scholar (quoting Panel, The Place of Policy in International Law , 2 Ga. J. Int’l & Comp. L. 5, 31 (1972) (Richard, A. Falk comment)).Google Scholar

14 18 U.S.C. §2340 (2000).

15 Supra note 2.

16 August 2002 memorandum, supra note 2, at 35.

17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

18 U.S. CONST. Art. I, §8, cl. 11, 14 (respectively). See generally Kathleen, Clark, Ethical Issues Raised by the OLC Torture Memorandum , 1 J. Nat’l Security L. & Pol’y 455, 459–63 (2005).Google Scholar

19 Richard, B. Bilder & Detlev, F. Vagts, Speaking Law to Power: Lawyers and Torture , 98 AJIL 689, 693–94 (2004).Google Scholar

20 Yoo asserts that “there was an urgency to decide so that valuable intelligence could be acquired from Abu Zubaydah, before further attacks could occur.” Jeffrey, Rosen, Magazine Preview , N.Y. Times, Sept. 9, 2007, §6, at 40.Google Scholar

21 Id.

22 “The Legal Adviser … is the first guardian, and often the last, of the US government’s commitment to the rule of law in two different legal systems—constitutional and international.” ABM Treaty Interpretation Resolution, S. Rep. No. 100-164, at 65 (1987).

23 Richard, B. Bilder, On Being an International Lawyer , 3 Loy. U. Chi. Int’l L. Rev. 135, 145 (2006).Google Scholar

24 Tompkins, supra note 13, at 563.

25 Bilder & Vagts, supra note 19, at 694.

26 Senate Hearing, supra note 3, at 57.

27 Id. at 8.

28 Id. at 58.

29 Am. Bar Ass’n, Model Rules of Professional Conduct, Rule 2.1 (2002).

30 Bradley, W. Wendel, Government Lawyers in the Liberal State 3 (2008) (Cornell Law School Working Papers, No. 29), at <http://lsr.nellco.org/cgi/viewcontent.cgi?article=1031&context=cornell/clsops> >Google Scholar.

31 Philip, Zelikow, Legal Policy for a Twilight War 2 (2007), at <http://www.hjil.org/lecture/2007/lecture.pdf> >Google Scholar.

32 Id. at 9.

33 Am. Bar Ass’n, Model Rules of Professional Conduct, Rule 1.2(d) (2002).

34 Supra note 2.

35 Memorandum from Office of Legal Counsel, U.S. Dept. of Justice, to Deputy Attorey General James B. Comey on Legal Standards Applicable Under 18 U.S.C. §§2340–2340A, at 2 n.8 (Dec. 30, 2004), at <http://www.usdoj.gov/olc/18usc23402340a2.htm>.

36 See, e.g., Posting of Peterr to Firedoglake (Apr. 15, 2008, 13:30), at <http://firedoglake.com/2008/04/15/>; Posting of Marty Lederman to Balkinization (Apr. 11,2008), af <http://balkin.blogspot.com/2008/04/post-no-6-yoo-boalt-and-academic-fredom.html>; Posting of Brad Wendel to Legal Ethics Forum (Apr. 11, 2008), at <http://legalethicsforum.typepad.com/blog/2008/04/fire-john-yoo.html>.

37 James, B. Comey, Intelligence Under the Law , 10 Green Bag 2d 439 (2007).Google Scholar

38 Senate Hearing, supra note 3, at 38.

39 Id.

40 Federal Ethical Considerations 8-2 (1974) (originally published in Normand, Poirer, The Federal Government Lawyer and Professional Ethics , 60 A.B.A.J. 1541 (1974)Google Scholar); see Tompkins, supra note 13, at 530 n.40 (explaining derivation of these rules).

41 See, e.g., Tompkins, supra note 13, at 560. Goldsmith himself notes that his OLC office was adorned with a portrait of Elliot Richardson, the attorney general who resigned in protest after President Nixon fired special prosecutor Archibald Cox in the “Saturday night massacre.” American lawyers “still honor the courage, integrity, and fidelity to law of the government lawyers who were victims of the ‘Saturday night massacre.’” Bilder & Vagts, supra note 19, at 695.

42 Goldsmith candidly admits that the public disclosure of the opinions and the resulting public outcry “precipitated my decision” (p. 159), but his earlier withdrawal of the March 2003 memo, coupled with his desire to make it harder for the administration to reverse the withdrawal of the August 2002 memo, show that withdrawing the memos was not just about politics.

43 See, e.g., John, C. Yoo, Clio at War: The Misuse of History in the War Powers Debate , 70 U. Colo. L. Rev. 1169 (1999)Google Scholar; John, C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers , 84 Cal. L. Rev. 167 (1996).Google Scholar

44 Bates, Michelle Deakin, The Compliance Man , Harv. L. Bull., Winter 2008 Google Scholar, at 11 (quoting Jack Goldsmith: “The connections between one’s actions and consequences are much tighter inside the government. Academic influence is more diffuse.”), available at <http://www.law.harvard.edu/news/bulletin/2008/winter/bookshelves_l.php>.

45 Neal, Katyal, Counsel, Legal and Illegal , New Republic, Nov. 5, 2007, at 38.Google Scholar

46 Id.

47 See Clark, supra note 18, at 465–68.

48 Wendel, supra note 30, at 54–55 (asserting that the “novelty of [a legal interpretation] … can be ascertained by observing either that (1) a numerically large interpretive community rejects it, or (2) it is accepted only by a numerically small interpretive community,” and that the Yoo-Addington interpretation of the Commander in Chief Clause, when offered as the basis for advice on what the government is legally authorized to do, “is illegitimate, because the interpretive community is numerically in the minority’).

49 Susan, Sturm & Lani, Guinier, The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity , 60 Vand. L. Rev. 515, 531 (2007).Google Scholar

50 Id.

51 Christopher, EdleyJr., The Torture Memos and Academic Freedom (Apr. 10, 2008), at <http://www.law.berkeley.edu/news/2008/edley04l008.html> >Google Scholar.

52 Id. (“ Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today?”).

53 Senate Hearing, supra note 3, at 65.