Means vs. Ends

In his 1996 memoir, Bob Gates, now the Secretary of Defense, described his years at the CIA and NSC, vis-a-vis Congress, this way:

I sat in the Situation Room in secret meetings for nearly 20 years under five presidents, and all I can say is that some awfully crazy schemes might well have been approved had everyone present not known and expected hard questions, debate, and criticism from the Hill. And when, on a few occasions, Congress was kept in the dark, and such schemes did proceed, it was nearly always to the lasting regret of the presidents involved. Working with the Congress was never easy for presidents, but then, under the Constitution, it wasn't supposed to be. I saw too many in the White House forget that.

Now contrast this milieu with the one under George W. Bush, as described by Jack Goldsmith, Bush's onetime head of the Office of Legal Council (OLC), the elite division of the Justice Department that advises the president on the limits of executive power:

“I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se," he told me. "It was a disagreement about means, not ends, driven by [my] desire to make sure that the administration’s counterterrorism policies had a firm legal foundation". . . .

Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes. Goldsmith’s first experienced this extraordinary concealment, or “strict compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.