Goldsmith couldn’t find a legal basis for the program, becuase spying on Americans without a warrant is unconstitutional. Really, how hard would it be for the House to agree on that?
[T]oday, Sen. Arlen Specter (R-PA) tried a more modest tack. He tried to get Goldsmith to say what Constitutional principle had been violated by the program. Goldsmith replied that the executive branch had told him that he couldn’t discuss any aspect of his legal analysis. Specter asked again, and Goldsmith again said that he’d been instructed not to.
I have a naive question here. On what authority did the “executive branch” presume that they could order this guy Goldsmith to refuse to answer questions? Would that be the “Presidential Order of Silence” power, described in Article II? Or maybe it’s the “Political Question/No Backsies Rule?” Oh, I know. It must be the “Keep Your Mouth Shut Or We’ll Make Harvard Fire You” theory of state secrets.
Really. What are they going to do, arrest him? Would the DOJ charge him for testifying that the DOJ has been secretly exercising power forbidden to it by the Constitution? Would they get Rush to call him a tattle-tale or a phony soldier? What could they possibly do to him?
From the same article at TPM:
After “several months” of reviewing the program — a process made more difficult, he said, by the fact that so few lawyers were allowed to know the details of the program — Goldsmith told then-Attorney General John Ashcroft, and then Deputy Attorney General James Comey in the spring of 2004 that he could not find a legal support for certain aspects of the program.