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 has been widely referred to as the "Torture Memo."
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 criminalize 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in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced," Goldsmith wrote in his book.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."