Jack Goldsmith and the Rule of Law

I have not yet had time to absorb the full meaning of the profile of Jack L. Goldsmith by Jeffrey Rosen to be published in this coming Sunday's New York Times Magazine, which may be why it was posted so far in advance of its publication date.
Jack Goldsmith was a conservative legal scholar who had taken an extreme view of the breadth of the executive branch's ability to set aside international law in detaining terrorists and what came to be called enemy combatants. After being hired to run the Office of Legal Counsel in the Justice Department, even his expansive views on executive powers were pushed beyond the breaking point by the Bush administration's continual striving to place itself outside the rule of law, as in the now infamous late night visit to the sick bed of then attorney general John Ashcroft:

Goldsmith also witnessed perhaps the most well-known confrontation over the administration’s aggressive tactics: the scene at Ashcroft’s hospital bed on March 10, 2004, when Gonzales and Andrew Card, the White House chief of staff, visited the hospital to demand that the ailing Ashcroft approve, over Goldsmith and Comey’s objections, a secret program that was about to expire. (Goldsmith refuses to identify the program, but Robert S. Mueller III, the F.B.I. director, has publicly indicated it was the terrorist surveillance program.) As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.
Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”
After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”

As Glenn Greenwald points out, Goldsmith and Ashcroft can hardly be considered to be shirkers in the conservative legal crusade that set up camp in the halls of power after Bush took office:

Goldsmith is commendable only by comparison to the truly extremist and reprehensible likes of Cheney, Addington, Gonzales and Yoo. He is, by and large, a True Believer in the Bush "War on Terror" and in theories designed to expand substantially executive power. That is what makes his revelations all the more credible, and all the more disturbing.

Apparently, only the truest of true believers could stomach the legal power grab perpetrated over the last six years. Al Gore, speaking generally about the Bush administration, expresses the cognitive difficulty of comprehending the excesses of the current regime:

I have a lot of friends who share the following problem with me: Our sense of outrage is so saturated that when a new outrage occurs, we have to download some existing outrage into an external hard drive in order to make room for a new outrage.