When torture isn't really torture

Goldsmith's interpretation of international laws, as well as his staunch conservative credentials, played a crucial role in his transition from the Pentagon's office of general counsel to director of the OLC at the Justice Department. Upon his arrival at the DOJ, Goldsmith inherited a stack of legal opinions, some written by Yoo, who he counts as a close friend.

Yoo's legal opinions virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorised the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn't result in death or maiming of the prisoner.

White House officials, including Vice President Dick Cheney, and his legal counsel, David Addington, believed that Goldsmith would reauthorise Yoo's legal opinions after arriving at the DOJ so the wide-range of classified programs would continue without interruption. But eight weeks after he settled into his new job Goldsmith said, according to his book that he worried "about the possibility of excessive interrogation" being undertaken by CIA agents after reviewing some of the legal documents written by his predecessors.

Patrick Philbin, at the time a deputy at the OLC who had provided the White House with legal advice following Yoo's departure from the office, advised Goldsmith soon after he arrived at OLC that he was working to correct one such OLC opinion written by Yoo that he believed was "out there".

The legal opinion that so worried Philbin was Yoo's "Standards of Conduct for Interrogation", which formed the legal basis for the Bush administration's so-called "enhanced" interrogation program.

Another opinion written by Yoo on March 14, 2003, for Jim Haynes, Goldsmith's former boss at the Pentagon under the heading "Military Interrogation of Alien Unlawful Combatants Held Outside the United States", provided the Department of Defense, specifically former Secretary of Defense Donald Rumsfeld, with authority to use the same interrogation techniques against high-level prisoners held at Guantanamo Bay and other facilities maintained under the DOD's control. That opinion remains classified.

According to Goldsmith, "the primary legal issue in both opinions was the effect of a 1994 law that implemented a global treaty banning torture and that made it a crime, potentially punishable by death, to commit torture".

"Congress defined the prohibition on torture very narrowly to ban only the most extreme of acts and to preserve many loopholes," Goldsmith wrote in his book. "It did not criminalize" cruel, inhuman, and degrading treatment (something prohibited by international law) and did not even criminalise all acts of physical or mental pain or suffering, but rather only those acts "specifically intended" to cause "severe" physical pain or suffering or "prolonged mental harm".

Both of Yoo's opinions concluded that the laws governing torture violated President Bush's commander-in-chief powers under the Constitution because it prevented him "from gaining the intelligence he believes necessary to prevent attacks upon the United States".

Goldsmith said that even though, "ironically", Yoo relied on a health benefits statute to write his legal opinion, these and "other questionable statutory interpretations, taken alone, were not enough to cause me to withdraw and replace the interrogation opinions".

"OLC has a powerful tradition of adhering to its past opinions, even when a head of the office concludes they are wrong," he wrote in his book.

Still, Goldsmith "decided in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced," Goldsmith wrote in his book. "I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses. I did so because the opinions' errors of statutory interpretation combined with many other elements to make them unusually worrisome."