By Thursday, October 4th, I had been doing preparatory work for roughly three weeks in order to write about Jack Goldsmith’s new book, The Terror Presidency (“TP”), which deals mainly with Goldsmith’s work as head of the Office of Legal Counsel of the Department of Justice. That is the office which opines for the government on whether actions it wishes to take are legal or not. By October 4th I had read Goldsmith’s book a couple of times and outlined it, read articles about it and him, and reviewed essays I wrote on relevant subjects in late 2004. Doing all this took a bit of time because I have a day job as dean of a law school and because, as host of TV and radio shows, I had to extensively prepare for and conduct four hours of interviews with the authors of two other very important recent books, Jules Lobel’s Less Safe, Less Free (coauthored with David Cole) and Charlie Savage’s Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.
But for two reasons I kept plowing on with the work on Goldsmith’s book and his views. First, they are important. Also, though the conventional wisdom of the pols and the media has anointed Goldsmith a hero for having stood up to the brutish David Addington, to Gonzales, to Jim Haynes and to other Executive Branch criminals in 2003-2004, I suspected that there were places in his book where Goldsmith had dissembled, there expressly were places where he was maintaining the secrecy that had led this country into further disasters, he admitted in the book to having lied outright to a New York Times reporter about the secret NSA spying program before the Times blew the whistle on that program in December, 2005, and I suspected that, while Goldsmith does deserve credit for having stood up to the criminals in 2003-2004, the so-called “revolt” he led had come to nothing and he was inevitably protecting criminals, and their continuing criminal conduct, by his silence between the time he left government in the summer of 2004 and the publication of his book three years later in September 2007.
Because of governmental secrecy and Goldsmithian closed-mouthedness, the views I formed (except for Goldsmith’s explicit admission that he lied to a Times reporter) were necessarily based largely on deductions, deductions predicated on what he said in his book and what one knew or certainly suspected to be the case from other printed sources. This is as it was when I first wrote about Goldsmith in late 2004, during a time of his almost complete silence on relevant matters, and it is as it was at that time in regard to other persons at Harvard Law School and in the Harvard University Administration, all of whose miscreant actions began to surface around that same time and were exposed then in various ways, including in blogs based on deductions that were posted here. It was notable then, though of course was of no moment to most, that miscreants declined invitations to issue plain, clear statements which, if made and true, would set to rest the possibility of misconduct. Of course, they could not issue such statements without lying, at a time when further statements that were merely less than the exact truth would have made the situation worse. Being experienced in the public eye, including in Washington in some cases, they had to know that the best thing to do, especially when one is a big deal of high reputation, is to say nothing more and let the whole thing blow over and die, as most often occurs and as occurred for four of the five miscreants. Only Larry Summers eventually lost his job because of terrible conduct and statements, while the Dean of the Harvard Law School advanced to the short list to replace Summers as President of Harvard, nor has there ever been even a breath of a public whisper that her poor conduct with regard to three Harvard law professors played any role in her not receiving the presidency.
The point, however, is that deductions were needed to unmask some of the bad conduct, that this was true then with regard to Goldsmith as well as the others, and that my more recent work on Goldsmith looked to likewise be extensively dependent on deductions — very logical deductions, to be sure, but deductions nonetheless rather than admissions of fact or confirmed fact.
But then came the New York Times’ seven column blockbuster story of October 4th on CIA torture and on secret Department of Justice legal memos supporting it. That article further confirmed much that previously was only deducible, so that such points no longer are merely deducible, but now are a matter of both deduction and existing journalistic confirmation, and, as well, could be further confirmed within the next few weeks because of events set in motion by the Times’ piece. And, from what has already been confirmed by the October 4th article, one can already say it is plain that, as suspected, Goldsmith has dissembled, sometimes failed to act for reasons that seem inconceivable to anyone who is concerned about the question of torture, accomplished no long term good with regard to brutish treatment of captives, and extensively lengthened the period of horrible American conduct regarding torture by maintaining his three year silence — by maintaining silence until the time came to garner publicity in September 2007 for his new book. As well, his silence clearly lengthened the period of secret NSA electronic spying — spying that he has repeatedly made clear in his book and elsewhere he agrees with and which, by his own admission, he worked feverishly to save. (TP, p. 182.)
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It remains true, of course, that for about seven months which to him must have seemed like seven years, Goldsmith stood up to the continuous vicious onslaughts of David Addington, a brutish Cheney thug who, in service of right wing views held by him and his master, has apparently been as nasty a piece of work as the bureaucracy has known in many a year, if ever. That Goldsmith stood up to the onslaughts is highly creditable, although the credit is lessened by the fact that Goldsmith, like some others in the bureaucracy, has chosen to regard Addington as a patriot who uses an allegedly high order of intellect to seek to protect the American people, instead of regarding Addington (and his master, Cheney) as the authoritarian traitors to the American constitutional system that they are. (See Rosen, Conscience of a Conservative, The New York Times Sunday Magazine, September 9, 2007, p. 42 (hereafter “Rosen”).) Yet, even if the degree of creditability is lessened, it still remains true that Goldsmith does deserve credit for standing his ground against Cheney’s attack dog. But that does not make Goldsmith the major league hero that the present conventional wisdom has anointed him to be — surely not when there is so much to be said against his conduct.
Although wondering about the matter is useless because Harvard will not rid itself of Jack Goldsmith, just as Berkeley will not rid itself of the far worse John Yoo, one does wonder whether it is creditable for either of these two law schools to have these men on their faculties. The cries of horror at the suggestion that they should be fired are of course audible in the mind’s ear (so to speak). Freedom of speech will be badly damaged if they were fired, academic freedom will be badly damaged if they were fired, the freedom and ability of lawyers to do what they think right will be badly damaged if they were fired — all these loud, shocked cries can be heard in the mind’s ear. But the truth, for those who care to think about it, and to think about it without being blinded by knee jerkism, is that these matters are not what is at stake.
What is at stake is something completely different. It is whether lawyers, in order to justify and provide a basis supporting vicious and illegal actions of the government, are free to assert the most outlandish arguments in favor of the actions, are free to invent astonishing, even evil, arguments in favor of the positions, are free to facilitate the government’s evil actions and not to counsel against the positions even though the positions and actions are in violation of domestic criminal laws, in violation of international law, contrary to the American constitutional system, and taken without consideration of the traditions and values of this country. The question is whether, in a law riven country where people feel themselves governed by law even when they do everything possible to avoid the law, lawyers are free to act — not just to speak, but to act — in astonishing and secret ways in order to give support and cover to astounding, secret, illegal and evil conduct, to conduct that is traitorous to the American constitutional system. I think it goes without saying that any lawyer in private practice who tortured law or ignored fact to give support and cover to a client’s gravely illegal conduct would be subject to disbarment, subject to criminal prosecution, and disqualified from being on any respectable law school faculty. How or why it should be different for lawyers who did such things to facilitate the gravest governmental misconduct, conduct which involved torture and sometimes murder, is something that escapes me.
My view is only the stronger because of what decent people have had to live through for the last six years and what decent people of my generation have now had to live through twice in their lifetimes, once since late 2001 and once in the roughly ten year period of Viet Nam (plus Watergate). These are two of the great disasters of American history, each unmatched by anything, I think, except the Civil War, the depression and World War II. Except for the fact that the current disaster was enabled by a morally reprehensible Supreme Court decision which made a future criminal President, each of the two all time disasters that decent persons of my generation have had to endure were brought about, and condoned, by the same kinds of ideas, by the same kinds of arrogance, hubris, stupidity and lack of any care for what other peoples think or are, by the same kinds of political cowardice in Congress, even by some of the same persons (e.g., Kissinger), and by contempt for and thoroughgoing judicial and other failures to enforce the law even though this is a law riven society.
The contempt for and failure to enforce the law that enabled the disaster of Viet Nam is something I’ve written about in Thine Alabaster Cities Gleam, and the contempt for and failure of the Executive to follow the law that enabled the disaster of the last six years is a major part of Goldsmith’s book. By not telling us much earlier on about what had been occurring — about the contempt for legal rules being displayed by a White House gang of thugs — by waiting three years until the time had come to get publicity for his book, Goldsmith was an enabler of evil, including evil and crime justified by the tortured (no pun intended) rationalizations of lawyers who set out to provide legal cover for torture, for cruelly inhuman conduct and other horrors. (These lawyers were exactly like any legal enablers of evil — they were like the tobacco company lawyers who fomented and hid evil, like Wall Street lawyers who facilitate crime, etc.) Goldsmith’s enabling silence alone, even aside from the dissembling which appears in his book, illustrates that he is not the hero that he was called by Newsweek in 2006 or that hack Senators have recently called him because he has finally come clean after another three years of horrors.
The point here, of course, is that my generation having had to live through Viet Nam, I am deeply unsympathetic to the protection that Goldsmith’s long silence gave to lawyers who should be put in the dock because they facilitated the current disaster by giving legal blessings in a society where this is required. I am equally unsympathetic to what, as we shall see, was Goldsmith’s own failure to condemn horrors he had the power to condemn when he was in government. Goldsmith should have acted in public far earlier, and while in government far more strongly, than he did.
You know, in a way the whole situation, including what Goldsmith discusses, reminds me of a remark Eisenhower is supposed to have made in World War II. It is said that he once was asked what he thought should be done after the war with the German General Staff. He replied that he would like to take all of them out and shoot them. When his interlocutor asked how many there were on the German General Staff, expecting him to say a few dozen or perhaps a few score, Eisenhower replied, shockingly, that there probably were three or four thousand. Well, this is how I feel about the whole crowd, or the two whole crowds, that got us into the disaster of Viet Nam and then the disaster of Iraq. They should simply be taken out and shot. But that is not what we do in America (albeit it is not so different in kind from what Bush, Cheney and company have done with their torture). In America, and under the rule of law, we do not just take the bums out and shoot them. Rather, we must collect evidence and have trials (which, sad to say, not only are usually not held for high ranking, serious governmental malefactors but which, even when rarely held for anyone, usually result in persons being let off completely or receiving only a slap on the wrist). And in America, particularly to save democracy as well as to enforce the rule of law, we depend on obtaining information that lets us know when officials have been evil and criminal, information that aids us in knowing how to vote and, on rare occasions, knowing when there should be prosecutions. The information we need is information Goldsmith should have given us years earlier than he did, and he deserves condemnation for his long and enabling silence.
There is one form of condemnation, however, that has been visited upon Goldsmith but which he emphatically does not deserve. A law professor whose comments made it appear he is very reactionary with regard to Bushian war powers, savagely let fly at Goldsmith in a lengthy and truly vituperative criticism that was posted on a famous legal blog published at Yale. The criticism is so far beyond contempt that I shall not even mention the professor’s name. The burden of his comments was that, by disclosing in his book what had happened in government, Goldsmith had reprehensibly violated the attorney/client privilege, which enjoins secrecy upon lawyers even when great evil is involved. The professor had raised the problem in a phone call with Goldsmith, he said, and Goldsmith had said he had thought hard about the matter and had resolved it to his own satisfaction. And, when asked whether the government had consented to his disclosures, Goldsmith had said he did not wish to answer the question, but pointed to a footnote which lists scores of prior articles and books by legal and other executive officers who, as said in Goldsmith’s text preceding the footnote, “have felt it important for the American people to understand how and why critical decisions were made during their service in government.” (TP, p. 13; p. 221, n. 2.) None of this satisfied the law professor, however, whose view was that Goldsmith had written the book to “justify himself” to “some segment of the public (The Harvard Law School Faculty?) or to settle old scores,” and who made statements that sounded suspiciously like hints that Goldsmith should perhaps be disbarred for writing the book.
Well, perhaps Goldsmith, and certainly the arch culprits like John Yoo and Addington should be disbarred. Indeed, lawyers like Addington, Yoo and some others should be prosecuted and jailed — or worse. But my feelings about Goldsmith do not arise from supposed violation of the attorney/client privilege. This non-named law professor’s michigas about the privilege is simply a reflection of the legal profession’s crazed belief that the privilege is sacrosanct above almost anything and everything else, that it is the attorney/client privilege, like Deutschland, uber alles. The lawyers have gotten themselves an economic advantage via a privilege of confidentiality which nobody else has to the same degree, and which most people and lots of professions (e.g., accountants) don’t have at all, and they are desperate to protect this financial advantage. So they grossly exaggerate — I use the words advisedly — they grossly exaggerate its importance and benefits to the point where it is claimed to be far more important to uphold the privilege than to give the American people information vital to maintaining our democracy. Jack Goldsmith is in my opinion no hero despite the credit he deserves for standing up to the Addington and Co. thugs, but he does not deserve the lunacy of being savaged for supposedly violating the attorney/client privilege by giving the whole nation information it deeply needs.
True, the unnamed law professor is right in saying that Goldsmith’s “revelations . . . are almost uniformly in the direction of self-serving, blame-shifting, ‘not-me-but-some-other-guy-and-I-tried-to-stop-them’ insider accounts of events.” And, also true, the reactionary law professor writes that “it is not crazy — as Jack’s book discusses at length — to imagine charges being filed in some forum, national or international, by someone charging Jack Goldsmith with being a war criminal based on his legal work,” although to the right wing professor “such charges might well be thought ridiculous” even though “I have had faculty colleagues who take such nonsense ridiculously seriously and so too do some European nations.” “[T]he international law legal academy,” he says, “is full of people [obviously absurd people, he thinks] who take such things seriously” and “some of them [also obviously absurd to this reactionary avatar of presidential license] are on the Harvard Law School faculty and made his arrival there a less than perfectly welcome one.”
But none of this right wing fulminating against people who would like to uphold the law can change the fact that Goldsmith has given us information vital to American democracy. Nor will Goldsmith be able to wholly evade blame that may be due him, as the unnamed professor implicitly seems to fear. He will not evade it here, and even less is he likely to evade it altogether in the long run of history, when memoirs are written, files are opened, and historians plumb these things. And none of this will be changed by right wing lunacy that puts the attorney/client privilege ahead of all other societal considerations, that puts it, like Deutschland, uber alles.
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The foregoing, of course, is all by way of a very lengthy, even interminable, introduction to Goldsmith and the relevant parts of his book. Let us now therefore, go “unto the breach, dear friends.” Let us discuss who Goldsmith is, what happened a few years ago when he first joined the Harvard faculty, and pertinent parts of The Terror Presidency.
Jack Goldsmith is a highly successful, conservative — probably it could even be said reactionary — law professor. He is a graduate of Yale Law School, as are John Yoo and Samuel Alito. After law school Goldsmith was a law clerk for one of the large crop of reactionary federal judges visited upon us in the last 26 years, appellate judge J. Harvie Wilkinson, and was a clerk for Supreme Court Justice Anthony Kennedy, a former conservative now turned moderate. Goldsmith was a professor at the prestigious University of Chicago Law School, was hired by the prestigious University of Virginia Law School (though I don’t know whether he actually joined the Virginia faculty, because he apparently went from Chicago to the government to Harvard without ever taking up residence in Charlottesville), and is now at Harvard. (In my 47 years of experience in law, schools such as these care only that persons hired for their faculties have gilt edged academic records, like Goldsmith’s. Small matters like morality, honesty and being a decent human being mean nothing to them.)
Goldsmith was friends with and shared the opinions of the right wing’s legal guru, John Yoo. He also shared the most right wing opinions of George Bush. Like Yoo — the two of them were part of a group dubbed the “New Sovereigntists” by Foreign Affairs — Goldsmith is against “the creeping influence of international law on American law.” (TP, p. 21.) He is against the “judicial activism” that allowed lawsuits based on human rights in American courts. (Id.) He is against “developments in ‘”customary international law’ that purported to bind the United States to international rules” to which, he says, our “leaders had not consented.” (Id.) He is against the Kyoto Protocol and against the International Criminal Court. (Id.) (The International Criminal Court is a possible danger to American miscreants all over the globe because we engage in acts of military force, overt and covert, all over the world and are committing acts violating the Geneva Conventions. Lots of our acts are illegal, and American right wingers do not want to be threatened by possible suits undertaken before the International Criminal Court to punish them and their minions for such violations. Suits before international tribunals that are pregnant with possible punishment are all very well for the Goerings, Himmlers, Tojos, Milosevics, Charles Taylors, and Saddams of this world, but not for Americans. Goldsmith indeed, while working in DOD, “wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors from the International Criminal Court might indict American officials for their actions in the war on terror.” (Rosen, pp. 40-42.))
Paradoxically (to use a nice word instead of the word that is deserved), Goldsmith purports to be against these developments in customary international law because there is a “need for democratic control over the norms that govern[ ] American conduct.” (Id.) He may be oblivious to — he certainly never mentions the fact that democratic control is exactly what he, Yoo, Bush and all their scores of collaborators have deliberately thwarted by means of secret horrendous actions defended by secret legal opinions, written by Yoo, Goldsmith and their successors, that were alike kept from Congress, the media and the American people so that nobody would be able to democratically question or democratically control either the actions or the legal bases asserted for them. Nobody, least of all Goldsmith, makes any bones about the fact that the secrecy was to avoid democratic questioning and control — Goldsmith even specifically recognizes this (TP, p. 181), but he somehow finds democratic control to be at stake in international developments but not when people of his right wing cast of mind, in order to avoid any questioning or objections, secretly engage in torture, run secret prisons, engage in secret electronic spying, or engage in secret military actions (which 35 to 40 years ago even included secret wars in Laos and Cambodia and before that included secret actions to overthrow and/or kill, among others, Mossadegh, Arbenz, Castro and Allende, but which today may be limited to secret military acts in such places as Iran, Syria, Afghanistan and Pakistan — although the news has occasionally carried hints that Rumsfeld may have had stuff done secretly all over the world by military people who were assigned to embassies.)
Oh, and while Goldsmith is against a lot of things, he is for electronic spying. Indeed, while he was in government, he spent extensive time, he says, attempting to shore up the legal bases for the NSA spying (TP, pp. 181, 183) on which The New York Times finally blew the whistle in December 2005 — after sitting on and not running the story since October 2004, thereby insuring Bush’s reelection, whether purposefully or not.
Sometime in the spring of 2002, William Haynes (called Jim Haynes), the General Counsel of Rumsfeld’s Department of Defense, persuaded Goldsmith to work for him for awhile at DOD. Haynes had heard about Goldsmith “from (among others) John Yoo, a friend . . . . ” (TP, pp. 20-21.) Goldsmith began working at DOD in September 2002. Haynes gave Goldsmith “an endless stream of fascinating legal problems related to missile defense, Guantanamo detentions, military commissions, the Iraq invasion and occupation, the United Nations, and much more.” (TP, p. 21.) But seven months later, in March 2003, Goldsmith told Haynes he was going to leave that summer to assume a faculty position at the University of Virginia Law School.
It was about that time that the position of being the head of — of being the Assistant Attorney General in charge of — the Office of Legal Counsel in the Department of Justice came open because the holder of the office — a former law professor from Nevada who had signed onto some of his underling John Yoo’s worst opinions — had been elevated to a federal judgeship, a typical Bush reward for right wing lawyers who did terrible things in government, as was plumbed on this blog at the time. Yoo wanted but did not get the job as head of OLC because, to act as an amazingly vital cog in the machinations of right wing Administration lawyers like Addington, Gonzales, Haynes and some others, he had regularly gone behind the back of and aggravated the Attorney General, John Ashcroft. So Yoo recommended his friend Goldsmith for the job as head of OLC. Haynes encouraged Goldsmith to take it. (TP, pp. 22-25.)
After a literally immediate interview with three people at the White house, including Addington and Gonzales, Goldsmith got the job in a day or two. His conversation with Addington at the interview he describes as “congenial.’ Here is his description of it, which gives a good sense of his views:
“Addington and I went on to have a congenial discussion about the Bush administration’s antiterrorism legal policies. I agreed with and supported most of the policies I was aware of: the administration’s critical stance toward the International Criminal Court and, more broadly, its suspicion about the influence of international institutions; the characterization of the conflict with al Qaeda and its affiliates as a “war,” and the President’s general wartime authority to detain enemy combatants and try them by military commission; the decision to deny Al Qaeda and Taliban fighters prisoner-of-war status under the Geneva Conventions; and the legality of the invasion of Iraq the month before.” (TP, p. 28.)
Goldsmith says he did not talk with Addington about things he claims he “didn’t know about at the time, such as the National Security Agency’s Terrorist Surveillance Program, or what President Bush would later describe as the CIA’s ‘tough’ interrogation regime.” (TP, p. 29.) We shall return later to the question of his knowledge of interrogation tactics then or, especially, just a bit later, a question central to his possible culpability.
It’s pretty obvious that Goldsmith wanted the job as head of OLC, as many lawyers would. Though little known to the public, OLC is one of the most prestigious offices in the DOJ. Rehnquist was head of it. So were Scalia, Ted Olson, and former Judge Michael Luttig (who has now left the bench to become General Counsel of Boeing). Alito had been a member of it. It writes legal opinions that discuss the legality of Executive Branch actions and that are binding on the Executive. To work there is a big deal. Goldsmith thus says “My heart sank” (TP, p. 26) when an interlocutor at the interview asked him about a political contribution he had made to a Democrat (who was a friend). He was able to explain the contribution, and did not bring up disagreements, which he had conveyed to Haynes, regarding certain legal aspects of Administration policy — disagreements that Haynes apparently had not conveyed to the White House (TP, p. 29) or Goldsmith certainly would not have been considered for the job of head of OLC. (Goldsmith thought the Administration needed better procedures for identifying and detaining combatants (many detainees were innocent, we now know, and some have now been held for years without charges). He thought the Administration should work more with Congress to put its antiterrorism policies on a better footing, and he thought there were “unnecessarily broad assertions of presidential power in an obscure” Yoo memo that Goldsmith does not identify but instead, as with other matters, keeps secret. (TP, p. 29.) Such disagreements with administration desires, as made clear throughout Goldsmith’s book and elsewhere, were anathema to Addington, whose temper, once described as “volcanic,” would explode upon hearing them.)
In any event, Goldsmith got the job. Nine months later — after having had “many confrontations” (TP, p. 11), after having been continuously savaged by Cheney’s attack dog, Addington (whom “Yoo spoke of . . . in reverential tones” (TP, p. 27)), after being extensively pressured by others too, and after having had to prepare resignation letters on three occasions (TP, p. 10) — Goldsmith finally did resign to become a professor at the Harvard Law school. The question of what happened during the nine months, and what Goldsmith says about it, is discussed below.
Goldsmith left the government and joined Harvard at a time when two generally separate streams of events were occurring and, because of Goldsmith, were joined together to some extent at the Harvard Law School. One stream was that, even though the mainstream media’s performance from 9/11 onward has generally been incompetent and dangerous to the nation, in 2004 a few reporters had discovered and were writing about horrible government misconduct including torture and renditions. From these reporters, and from cases filed by the ACLU, it became known that Americans were beating prisoners, sometimes unto death, were forcing them to kneel or squat for hours (these are “stress positions”), were administering and threatening electric shocks to the testicles, were threatening detainees with death and the murder of their families, were hanging them by their arms, were forcing them to lie on blistering hot surfaces, were keeping them naked in frigid cells, were denying them needed medical treatment, were threatening them with vicious dogs, were kidnapping people off the street in Europe and sending them to countries like Syria or Egypt to be tortured by authorities there, were operating secret prisons for interrogation and torture in places like Afghanistan, Thailand and eastern Europe, and were engaging in waterboarding, an ultimate torture used by the French in Algeria, the Argentines, and the Uruguayans. (A Uruguayan interrogator had said of waterboarding that ‘”there is something more terrifying than pain, and that is the inability to breathe.'”)
As all this became known, it also became clear — from common sense, from the writing of a (now famous) CIA guy named Michael Scheuer, and from logical deductions — that George Bush and others were blatantly lying when they denied that America was torturing people, and that the orders to commit torture came from the very top — from Bush and Cheney — notwithstanding denials. As well, though the media flatly refused to write about it, the torture ordered by the highest — and culpable — levels of our government constituted grave war crimes under international law, were felonious violations of two domestic statutes, and could be punished by up to life imprisonment and even by execution of the immediate perpetrators. As I say, the media flatly refused to write about that.
The second stream of events, one infinitely less in the news, was that the whistle was being blown on two famous professors at the Harvard Law School. They had committed plagiarism in books they had written and, worse yet, probably did not even know they had plagiarized. For as discovered by deduction, even though they claimed full, sole credit for writing the books, in fact parts of their books had been written not by them, but by students. The professors themselves, guilty as they were of falsely claiming credit for work done by students, may not even have known that the students had plagiarized. The professors were criticized on this blogsite for their misconduct, and both of them failed to make statements which, if true, would have shown they were not guilty of the charged misconduct. Obviously, they couldn’t make such statements truthfully.
The two professors were protected by Larry Summers and by the Dean of the Law School (a former Clinton administration minion), who made fancy Washington-type statements designed no doubt to cause people to think something significant was being done about the horrendous violations of basic rules of academic honesty, when in fact nothing at all was being done or, at most, a mere slap on the wrist was being administered.
It also became known at about the same time that, when Goldsmith was being considered for the Harvard Law faculty earlier in 2004, certain professors — liberal ones mainly specializing in international law, I gather — had raised questions about his role, if any, in abetting the torture that had been coming to light, including his role, as head of OLC, in writing a memo (dated march 19, 2003) that had authorized the government to transfer prisoners out of Iraq for questioning — in practical reality, to transfer them for torturing by interrogators located outside Iraq. These prisoners, the revelations in the news media made clear, had been among the now famous “ghost detainees” who had been hidden from the Red Cross, and it was reported that Goldsmith’s transfer memo had been relied on to transfer them from Iraq to wherever they were being tortured. Goldsmith mainly refused to talk about any of this — until he wanted publicity for his book he adopted the same stonewalling attitude as his accused Harvard colleagues had adopted with regard to having students write parts (or in one case conceivably even all) of their books.
Harvard law faculty members said the Dean had reported that Goldsmith had said he did not draft the separate, August 1, 2002 OLC memo authorizing torture by the CIA and had not worked on a similar or nearly identical memo (of March 2003) drafted partly for and made a part of a DOD memo on torture. (They had been done by Yoo before Goldsmith joined OLC.) Also the Boston Globe quoted Goldsmith as saying in an interview that he had not worked on the torture memo for the CIA because he was not in government yet when it was written (which was true) and had not worked on the DOD memo when he was at DOD. (I later was told by the redoubtable Scott Horton that he (and apparently others too) had interviewed a person who had noted Goldsmith’s presence at a meeting of the small working group that produced the DOD memo.)
Harvard’s Dean was quoted in the Boston Globe as saying of Goldsmith’s appointment to the faculty that “‘I’m as proud of this appointment as I could be,'” since Goldsmith is “‘an absolutely superb teacher and scholar'”, and ‘”puts issues on the table that everyone focuses on and debates.'” The Dean said he is ‘”a very agenda-setting scholar, and that’s exactly the kind of exciting scholars that we want to have here.'”
The Dean’s claims sounded much like the whitewashing she gave the two culprits whose books were at least partly authored by students. Because the same kind of whitewashing seemed involved, this blog considered the possibility that perhaps Goldsmith had had something to do with torture by writing a memo authorizing transfers of prisoners out of Iraq when perhaps he had to know that the transfers were for purposes of torture. Because relatively little concrete information was then available, especially compared to what is now known three years later, deductions from the few known facts were required. The deductions made it look like Goldsmith was almost certainly guilty — made it look as if to not know that prisoners were being transferred for torture, Goldsmith would have had to be living under a rock during his time at DOD and must have completely failed to read pertinent OLC torture memos both while he was Haynes’ assistant and after he became head of OLC. None of this seemed plausible and now, thanks to Goldsmith’s own book, we know he read and was horrified by torture memos after he was put in charge of OLC and long before he wrote the transfer memo. (As said in the title to this posting, he is convicted out of his own mouth. It is no longer totally a matter of the (sometimes not self evidently obvious) deductions that were all that was available then.)
It is fair to say, however, that from the time in 2004 and early 2005 when all the stories were broken in the media and discussed on this blog, until the impending publication of Goldsmith’s book in September 2007 and the New York Times article of October 4, 2007, all of these matters discussed in the media and the blog in 2004-2005 were Krugmanned. (Krugmanned is a verb which future editions of dictionaries should define as follows: Krugmanned. A verb meaning to reveal or to disclose the truth but to then be completely or largely ignored by the media. Thought to be named after Paul Krugman, a Princeton economist and New York Times columnist circa late 20th and early 21st centuries, and especially but not exclusively applied when the disclosure of truth could be thought to be on the liberal side of politics, or contrary to conventional wisdom, or contrary to what people, especially conservatives, wish to hear. An example of being Krugmanned is the media’s failure to inform of or take account of the fact, known since about 1990, that the Soviet commander in Cuba possessed, and had received authority to fire, nuclear missiles if America invaded Cuba during the Cuban missile crisis. This information has been ignored or suppressed — has been Krugmanned — lest it be used to oppose conservatives’ desire that America take military actions all over the world. Synonyms for Krugmanned: To be ignored; to have fallen into intellectual desuetude. Antonym: Greenspanned, meaning to receive extensive long lasting, bootlicking praise and admiration from the media for purportedly portentous pronouncements that are empty of meaning or are wrong.)
All of the pertinent matters having been Krugmanned for nearly three years — the matter of the two other Harvard professors is still Krugmanned, though anyone interested in either the torture or the bookwriting matters can read about them at pp. 65-140 of (an inexpensively priced) book available from Amazon that is entitled Blogs From The Liberal Standpoint: 2004-2005 — Goldsmith helped bring a major part of it back to life, not only with his book, but with interviews he gave to plug the book. One interview, actually “a series of conversations,” was for a four full page story in the Sunday Magazine section of the Times on September 9, 2007. Was it merely a coincidence — why does one doubt this? — that the interviewer was Jeffrey Rosen, who says, “I have known Goldsmith since we were at law school together. In addition to being intellectually curious and having good judgment, he always struck me as a pragmatic rather than an ideological conservative.” (Rosen, p. 42.) Not much chance there of an unfavorable article, is there? I also happened to hear Goldsmith interviewed about his book for an hour on Tom Ashbrook’s On Point on NPR, where one of the other guests, who was to comment on the book, was Benjamin Wittes. Ashbrook told the audience that Wittes had written on the book for a magazine. But he did not tell them that, in the Acknowledgements section of the book, Goldsmith said, “The two people who helped me most in writing the book were Ben Wittes and Andrew Woods. Ben is not a lawyer but he has a great legal mind and is a great writer. He helped me work out the narrative arc of the book and gave me many very good suggestions.” (TP, p. 218.) Not much chance there either of anything less than favorable comments on the book, is there? One wonders: Did Goldsmith not tell Ashbrook of Wittes’ role? Did Ashbrook or his people not read the book with sufficient thoroughness? I know from listening to Ashbrook, on subjects about which I know something, that he and his staff do miss crucial points.
Testifying before Congress a few weeks after the book came out, Goldsmith was treated as a hero by foolish (to use the politest possible word) Democrats who think he is on their side because, after three years of silence, he finally exposed misconduct which they have been too weak and inept to learn of or stop, and who seem not to understand that he vigorously, even violently, disagrees with their substantive positions. And as far back as February 6, 2006 Goldsmith was hailed as a hero by Newsweek for leading a revolt which it called nothing less than “a quietly dramatic profile in courage.” Positively Kennedyesque, isn’t it?
So Goldsmith, who says he was “too timid to defend myself” (TP, p. 173) when Harvard colleagues were raising questions in 2004 about his appointment to the faculty — isn’t that rich? The guy who had just taken on the Cheyney thug David Addington, as well as Bush’s hatchet man, Alberto Gonzales, tells us he was “too timid” to defend himself against some Harvard law professors — nonetheless succeeded in arranging, or his publisher succeeded in arranging, or together they succeeded in arranging some big time great publicity that most authors would kill for. Imagine — a four page spread in the New York Times Sunday Magazine by an admiring former fellow student at Yale Law School! Not bad for Mr. Timid.
But is all the adulation deserved, or is at least deserved if one ignores the fact that Goldsmith stood silent for three years while evil occurred? To examine this, let us turn to what is revealed in his book and in the Times article of October 4th and some of its progeny.
* * *
Jack Goldsmith appears to have gone through a fairly hellish experience as head of OLC. Working as part of a small group (Addington, Gonzales, Haynes, Tim Flanigan and Goldsmith himself, a group which called itself the War Council and which often bypassed others in government), Goldsmith often, perhaps nearly always, was under constant pressure to produce memoranda saying that what persons in the Administration wanted to do was lawful. (TP, pp. 22, 23, 166-167) That is what John Yoo indispensably had done before him (as part of the War Council (TP, pp. 167-168), to the point where, according to the Times article of October 4th, Ashcroft — of all people — began to privately call Yoo “Dr. Yes.” Goldsmith agreed with Bush on a lot of matters and felt the head of OLC should be attuned to the desires of the President. (TP, p. 34.) He wanted to produce memos that enabled officials to walk right up as close as possible to the line of legality and, as one official had put it, to ‘”live on the edge’ where his ‘spikes will have chalk on them.”‘ (TP, pp. 78, 167.) Yet when Goldsmith nonetheless found something so legally awful that he felt unable to give legal blessings to what the Administration wanted to do, or, worse yet, when he felt he had to withdraw prior OLC memos as being simply beyond the pale, Goldsmith would catch hell from the vituperative Addington, whose hard-line non accommodation stance always prevailed when the lawyers met to discuss legal policy issues in Gonzales’ office.” (TP, p. 182.) (The prior OLC memos Goldsmith had to withdraw were authored by his friend Yoo; apparently the two no longer speak. (Rosen, p. 43).) Addington would tell Goldsmith that if he does not do as the Administration wishes, the blood of a hundred thousand Americans will be on his hands due to the next attack that could (would?) occur. (TP, p. 71.) Addington even took to carrying around in his pocket a list of opinions that Goldsmith had withdrawn, taunting him about the withdrawals on the list, and asking what other OLC memos, which government officials had relied on, did he intend to withdraw. (TP, p. 161.) If Addington were not so evil, one might almost sympathize with him, since Goldsmith says he withdrew more memos than any head of OLC ever had before, and never before had someone in the same Administration withdrawn an OLC memo written on its behalf. (TP, p. 146.)
In his book, and in his interview with Jeffrey Rosen for the four page spread in the Times’ magazine, Goldsmith will not say what memos he withdrew other than the first of two torture memos of August 1, 2002 relating to CIA actions and the apparently pretty identical first memo, of April 2002, relating to DOD interrogations. Goldsmith says there is much he is not permitted to talk about by the government (TP, p. 182), so much stuff remains secret and we are disabled from knowing much or anything about other possible governmental horror shows. But Goldsmith takes credit for withdrawing unidentified ones about which (because of governmental compulsion?) he keeps us in the dark. (TP, p. 12; Rosen, pp. A22-A23.)
Well, why did Goldsmith fail to give legal blessings and/or withdraw memos? It is not because he disagrees with what was being done. To the contrary, he not only feels that the head of OLC must to a considerable extent be politically attuned to the president (TP, p. 34), but agrees with Bush’s program, the CIA’s program, the DOD’s program. He was for the invasion of Iraq, for electronic spying, for military commissions, for not applying certain Geneva Conventions to severe interrogations. (TP, p. 28; Rosen, pp. 43, 45.) When he felt that proposed actions were legally dubious, he would try to suggest legal ways to achieve administration goals (TP, p. 35). He felt terrible about having to withdraw opinions, because to do so was in a way to break faith with people who had put themselves on the line. (TP, p. 158.) The facts underlying the breaking faith point must be elaborated.
From early on people in the CIA had been worried that the techniques they were using on prisoners might constitute crimes under international law and felonies punishable by up to life imprisonment or death under two domestic statues, the War Crimes Act and the Anti-Torture Act; (The New York Times, October 4, 2007, p. 42 (hereafter NYT Oct. 4).) The CIA, and other government officials were not motivated by respect for law, as Goldsmith sometimes tries to say in his book (TP, p. 131), and as he seems to have said in recent testimony before Congress. Rather, they were worried about grand juries, lawyers’ fees, prosecutions, jail. (TP, pp. 12, 68, NYT, Oct. 4, p. 22.) They were seeking they were demanding — protection against these possibilities which arose under international and domestic laws which were created to protect against repetition of abuses which had occurred in the past. (TP, pp. 90-91, 162, see 98, NYT, Oct. 4.) The CIA’s lawyers wanted from OLC, and John Yoo gave them, opinions that provided protection. These opinions were called “a golden shield,” a ‘”free get out of jail card,”‘ ‘”an advance pardon'” because the OLC authoritatively, bindingly, opines for the federal government and, if the OLC says something is legal, then in future it will not be possible, or at least it will be very difficult, to successfully prosecute for the act. (TP, p. 149, NYT, Oct. 4, pp. 42-43.) While Goldsmith doesn’t say so, and gives no sign of even having comprehended it although one is hard pressed to understand how such a smart guy could miss it, the hidden idea here is that the Nuremberg defense, which didn’t work for the Germans, can be used by Americans, so that we have reneged on what we maintained at Nuremberg. In other words, if the OLC says we can lawfully waterboard someone, then government officials given the task can rely on this and not be prosecuted for waterboarding even though the entire rest of the world knows damn well that by waterboarding people we have tortured them. Goodbye Nuremberg.
Apparently it was hoped, or believed, or both that what would work in connection with domestic statutes to eviscerate Nuremberg would work with regard to international law too. In this connection Goldsmith performs a real service by lengthily explaining lawfare, and why Rumsfeld had DOD call lawfare “a strategy of the weak.” (TP, pp. 53-64.) Lawfare essentially means that people who lack the military power to stop U.S. military actions will resort instead to bringing lawsuits against American culprits for misconduct that violates international law. They will thereby use the law to nullify or roll back (continuous) efforts to impose our will on others by force. Lawfare, reactionaries fear, has now become a real threat because of the development of the concept of universal jurisdiction. Such jurisdiction means that any international tribunal or foreign court can exercise jurisdiction over international crimes committed anywhere in the world.
When the concept of universal jurisdiction was used to get hold of Pinochet, Henry Kissinger got panicked lest the same concept be applied to nab him for his many horrible crimes. He got his worthless hind parts out of France post haste in 2001 — he had received a summons there — lest someone use universal jurisdiction to nab him there, did not go to Brazil in 2002 lest he be nabbed there, and persuaded Rummy that universal jurisdiction and lawfare were serious menaces. Rummy got worried on his own behalf and, apparently in accord with and, for all I know, because of a memo given to him by Goldsmith while Goldsmith was in the Pentagon, had DOD denounce lawfare — i.e., denounce adherence to international law — as a strategy of the weak. And, of course, denunciation of adherence to international law is the meaning of Bush’s refusal to recognize the International Criminal Court and his persuading Congress recently to declare that the Geneva Conventions do not apply in American courts. These things are the anti-Nuremberg principle on steroids — now you don’t even have to be given orders by a superior to be immune from law. In any case, Goldsmith felt very bad that, by withdrawing torture opinions written by John Yoo, he was breaking faith with CIA personnel who had acted in reliance on those opinions — who, put more accurately, had broken international and domestic laws against torture and cruelty on the basis of Yooian assurances that gross violations of law were supposedly not violations of law, and who might find themselves in the dock somewhere if Yoo’s memos were withdrawn.
So Goldsmith approved of Bushian and CIA actions that had been given legal cover by Yoo, felt badly about breaking faith with CIA people (with CIA criminals), and, though he found support from some decent guys in the Administration like James Comey, was constantly pounded by Addington and other Administration thugs. Why, then, despite the pounding, did he withdraw opinions and fail to give blessings? Well, it was fundamentally because he thought the Yooian opinions were professionally inept. They appear to have deeply offended him by their professional inadequacy. Yoo’s August 1, 2002 opinion justifying torture, for example, was simply incompetent in various ways (TP, pp. 148-151) — including in some ways that previously were disclosed on this blog in 2004-2005 but that largely were Krugmanned for a few years. As written in 2004-2005 and largely echoed by Goldsmith, to say, as Yoo did, that the President as commander-in chief cannot be stopped or overridden in any way by Congress is simply ahistorical and nuts. It would enable the President to override a host of Congressional laws, including some important ones identified by Goldsmith (TP, p. 149), and would make him a dictator. The definition of torture used by Yoo — the now infamous akin-to-organ-failure-standard — has in fact nothing to do with torture (the standard is from a health statute (TP, p. 145)) and would allow vast pain to be inflicted. And to say that torture is not torture when the interrogator’s goal is not to inflict pain but to obtain information, would mean that there never could be torture, or at least hardly ever, because obtaining information is what most interrogators wish to do. So they would not be guilty of torture no matter how much pain they caused.
As Goldsmith felt, the Yoo memo was professionally incompetent, a judgment Goldsmith apparently made wholly on abstract logic without any consideration of what the CIA was actually doing. Thus, after thinking about the problem for a few months, Goldsmith withdrew Yoo’s memo giving a “golden shield” to the CIA and Yoo’s similar memo to DOD.
An interesting fillip is that, when withdrawing these memos, Goldsmith showed himself a canny bureaucrat. Knowing he was going to catch hell from Addington and Company when they found out, and knowing that in fact DOD was not doing anything he considered torture, Goldsmith withdrew the DOD memo first and did not tell the White House he was doing so. He merely told his friend Jim Haynes that DOD should no longer rely on Yoo’s memo. (TP, pp. 154-155.) But Goldsmith could not avoid telling the White house when he was withdrawing the August 1, 2002 torture memo prepared to give a “golden shield,” a “free-get-out-of-jail-card,” to the CIA, so all hell then broke loose. But, to his credit, he stuck to his guns (even though his opinion was based on abstractions, divorced from anything the CIA was actually doing). He also again showed himself the cunning bureaucrat by preparing a resignation letter, so that, if the government did not allow the memo to be withdrawn, this would appear (at least to be cognoscenti, I guess) to be the reason for his resignation. (TP, pp. 160-161.)
There is another matter written about by Goldsmith for which he deserves some credit, in one way a lot of credit, in other ways not so much or even censure.
Apparently, Goldsmith spent considerable time working on the NSA electronic surveillance matter. (TP, pp. 178, 182.) One gathers that the program raised some concerns within the government, and was so secret that “in a 2003 meeting . . . Addington angrily denied the NSA Inspector General’s request to see a copy of OLC’s legal analysis in support of [the program]. And [b]efore I arrived at OLC not even the NSA’s lawyers were allowed to see the [DOJ’s] legal theories.” (TP, pp. 181-182.) Goldsmith will not say what the legal theories underpinning the surveillance programs were, or what was the matter with them, or what was done to correct the theories and actions based on them. (TP, p. 182; Rosen, p. 44.) These matters, one gathers, he is forbidden to talk about. So he is maintaining the secrecy that frustrates the democratic control he speaks of, and is doing so though Congress has wanted the information for years. As well, had the New York Times not disclosed the NSA spying in December, 2005, no doubt Goldsmith would have never said anything about it in his book.
The last is hardly mere speculation, since in his book Goldsmith (surprisingly) admits to flatly lying to a reporter about the NSA program. Goldsmith writes that in October 2004, three months after he left the DOJ, he had lunch with one of the two reporters, Eric Lichtblau, who was instrumental in breaking the story on NSA spying. (The other was James Risen.) Let me quote what happened:
. . . at the end of a friendly hour-long chat about his career in journalism and the colorful figures in the Bush administration, he asked me a few questions about what he called a secret NSA program. Panicked inside, I told Lichtblau, untruthfully, that I didn’t know what he was talking about. As soon as our meeting ended, I went straight to the Justice Department to tell Jim Comey, the Deputy Attorney General with whom I had worked intimately on NSA matters, about the conversation. (TP, p. 178 (Emphases added.).)
Goldsmith did not say “No comment” to Lichtblau, or “I couldn’t talk about such things even if they existed,” or anything like that. No, he flatly lied. Did that lie have an effect on the country? Well, one may be dubious, but we’ll never know. Late October 2004, you see, was when a version of the NSA spying story was submitted by reporters to the Times’ editors for publication, and the editors then sat on it for over a year — thereby providing material help to Bush in winning the 2004 election, since breaking the story would very likely have hurt his chances of reelection, perhaps hurt them badly. One of the reasons the Times sat on the story, I believe, was insufficient certainty about it, or about aspects of it. What would the Times have done if someone who had held Goldsmith’s position — who had been responsible for giving legal approval to government programs — had not denied knowing anything about such spying — a denial which, given Goldsmith’s position, might have been taken by the editors as strong evidence there was no such program since the head of OLC would have had to approve it if it existed, or at least taken by the editors as strongly indicating that a lot more better be learned before publication? What would the editors have done if Goldsmith had said “No comment,” or “I can’t talk about that”? And, of course, one needs little imagination to know what they almost surely would have done had Goldsmith told Lichtblau the truth — that he had worked on the matter for a long time and had had serious questions about its legality prior to his “fixing” it (TP, p. 182): The story almost certainly would have been run and could well have cost Bush the election and spared the country years of agony.
So Goldsmith flat-out lied to Lichtblau about the NSA spying program. Nor, according to what he told Rosen, had he intended to write anything about the program in his book. The reason he did write about it in his book, he told Rosen, was because he was angry that he was being investigated by the FBI to determine if he were the person (or one of the persons) who leaked knowledge of the program. (Rosen, p. 43.) He had had to testify before a grand jury, had had to worry about being entrapped like he reactionarily feels the lying Lewis Libby was entrapped, and had had to worry about lawyers’ fees. (TP, pp. 178-179.) (In the event, three lawyers from a major firm “agreed to represent me before the grand jury pro bono” (i.e., for free). (TP, p. 244, n. 2.) He feels the Times’ story greatly harmed the country, and he believes the leaker(s) should be found and punished (TP, pp. 180-181; Rosen, p. 45, col. 1), but, he is shocked, shocked, he is positively beside himself, that the FBI should be investigating him. Because Gonzales (and others) had created a “legal mess” in designing the terrorist surveillance program, “It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with it.” (TP, p. 180, emphases added.) He is outraged by this gross unfairness by which poor innocent Jack Goldsmith was “victimized” (my quotation marks), while of course he shows no concern at all for innocent people who have been spied upon or tortured.
Well, Jack Goldsmith lay down with a lot of dogs when he joined the government, and now he has caught fleas. As they say in the Russian Marines, “Toughsky, shitsky.” Goldsmith seems to exemplify a theory about conservatives which may be true, or may be false, but which, rightly or wrongly, is beginning to gain some traction. It is that conservatives don’t give a damn for people’s pain, or for what bad things happens to people, unless and until they themselves undergo the same pain or the same bad things.
So far, in discussing the NSA’s electronic spying, nothing said here would seem to show that Goldsmith deserves any credit. But he does in one way. He apparently was very concerned that the spying program was not on proper legal ground, although he does not say why (TP, p. 182), and he worked hard to cure the problem — he says this “was by far the hardest challenge I faced in government” (TP, p. 182) — although he will not say what he did to cure it. And he and Jim Comey finally refused to give the DOJ’s needed imprimatur to one of the regular renewals of the program. (Rosen, p. 45.) This refusal led to the now famous episode in John Ashcroft’s hospital room, when Gonzales and Card, in the presence of Comey and Goldsmith, unsuccessfully tried to get the sick Ashcroft to renew the program. This episode, plus the threat that Goldsmith, Comey and apparently even Ashcroft, would resign, led to changes in the program, although it was run illegally for a period until it was fixed in accordance with what Goldsmith and Comey desired.
Goldsmith deserves credit for sticking to his guns on this matter. Whether doing so actually accomplished anything worthwhile is hard to know, however, since we do not know what about it was so terrible that even Ashcroft couldn’t stomach it, nor do we know whether the changes wrought by Goldsmith made any practical difference since lots of people — maybe even more people than ever — are being surveilled though we in the public haven’t a clue as to whether or how this program accomplished any good in actually catching terrorists or stopping terrorist plots.
Let me turn now to a couple of matters for which Goldsmith deserves no credit, but censure instead. First up is the question of just exactly what kinds of interrogation tactics are permissible.
When Yoo wrote his torture memorandum of August 1, 2002, the memorandum that Goldsmith creditably withdrew, he also wrote a second memorandum on the same day. The first memorandum, the one Goldsmith withdrew, was a general, abstract discussion of presidential power and torture. It was not moored — at least not overtly — to any specific tactics being used by the CIA.
The second Yoo memorandum, we have long been told, however, discussed specific interrogation tactics that could be used. Goldsmith did not withdraw the second memo. It has never been withdrawn. It is to this day secret, classified.
We now know, and began learning in mid 2004, that the CIA’s tactics constitute torture or the word has no meaning. They have indeed been considered torture for many decades. Waterboardings, beatings, electric shocks, sleep deprivation, stress positions, oh man, this is torture for sure. The second, non-withdrawn memo must have approved these things because it was devoted to the actual tactics, the CIA people were demanding a golden shield that would protect them from later prosecutions, and only a memo approving specific tactics could do that. Further indicating that the CIA wanted a golden shield for specific tactics, and that the second memo of August 1, 2002 therefore dealt with specific tactics, the NY Times reported on October 4, 2007 that memos written after Goldsmith left the OLC approved the combined use of specific tactics. (In one instance, it was reported, a detainee was subjected to 100 tactics in less than two weeks. That’s some combination of tactics, eh?)
In addition, a public DOD memo lists 24 tactics. (TP, pp. 151, 153-154.) (Apparently some other tactics were so terrible that they were rejected).
So unless and until the government makes public the second Yoo memo of August 1, 2002 and it proves not to have discussed specific tactics (which would be amazing and is, I think, impossible), we must properly assume it does discuss specific tactics and tells which are approved. And since we have long known the horrible things the government has been doing to prisoners, and now know these things were approved to be done in combination in 2005, we likewise have to assume that the second, still secret Yoo memo of August 1, 2002 approved specific tactics.
It is hardly any wonder that CIA personnel wanted a very specific golden shield for what they were doing — they knew perfectly well they were torturing people. After 9/11, being novices in the field of torture, the CIA consulted with the Saudis and the Egyptians — known torturers — on what to do. (NYT, Oct. 4, p. 22.) As well, as some knew, they were using tactics that had been used to torture American captives in the Korean war by the North Koreans and the Chinese, whose tactics traced back, apparently, to tactics used as part of Stalin’s infamous purges of 1937. The idea that such stuff used by Stalin, the North Koreans and the Chinese Communists is not torture is laughable.
So, given that the second memo surely approved specific techniques that were torture, why didn’t Goldsmith revoke it. Indeed why didn’t he even mention it in the part of his book which discusses the withdrawal of the first August 1st memo (he does briefly mention the second memo at other places), but instead seems to dodge it there and to intentionally or unintentionally put people off the scent by referring only to the CIA’s “interrogation practices” or its “interrogation techniques”? (TP, p. 152.)
Here is what Goldsmith says about his nonrevocation: He says that the “CIA techniques, unlike the ones approved by the Pentagon [apparently he means the 24 Pentagon techniques referred to above], had been vetted in the highest circles of government”. (TP, p. 155, emphasis added.) “The highest circles of government” is Washington speak and media speak for Bush and Cheney, and Goldsmith’s comment means Bush and Cheney approved the CIA’s torture, including waterboarding, beating people, electric shocks, etc., etc. — just as we know from the October 4th New York Times’ article that Bush later signed an order, with agreement from Goldsmith’s successor at OLC, approving the CIA’s tactics. (NYT, Oct. 4, p. 22, col. 1.)
In addition, Goldsmith says he didn’t know whether the CIA tactics were legal or illegal. One can do no better than quote him:
“And in contrast to my sense of the Defense Department techniques, I wasn’t as confident that the CIA techniques could be approved under a proper legal analysis. I didn’t affirmatively believe they were illegal either, or else I would have stopped them. I just didn’t yet know. And I wouldn’t know until we had figured out the proper interpretation of the torture statute, and whether the CIA techniques were consistent with that proper legal analysis.” (TP, pp. 155-156.)
Goldsmith didn’t know whether waterboarding, beating prisoners, electronic shocks to the genitals, threatening them and their families with death, stress positions for hours on end were torture and therefore illegal? Had he known they were illegal, he would have stopped them? Forgive me if I say to myself, albeit not publicly, that the man is either morally retarded, a dissembler, flatly untruthful (as with Eric Lichtblau), or all three.
Though he tries to excuse his inaction on torture by reasons given above and by saying he was swamped with “other matters that remain classified but that everyone in the government agreed were a higher priority” (TP, p.156), by which it would seem possible he is referring to the NSA spying, Goldsmith seems nonetheless to know in his heart of hearts that he is culpable. Thus, when later discussing that in December 2004, after “almost six months of hard work” (TP, p. 164), his successor at OLC, Daniel Levin, finally completed and published a replacement for the withdrawn Yoo memo of August 1, 2002, Goldsmith says this: “[I]n an important footnote, the Levin opinion stated that ‘[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.’ In other words, no approved interrogation technique would be affected by this more careful and nuanced analysis.” (TP, pp.164-165.)
What Goldsmith is claiming here is something on the order of “no harm, no foul.” That is, Levin devoted much time to the question that Goldsmith elided, and found that the CIA’s techniques were okay, so let’s not blame Jack for not striking them down.
There are, however, some problems with Goldsmith’s little mea non culpa. What the CIA had been doing is torture pure and simple, and nothing that Levin said, or George Bush says, can change that fact. You can call the sky a floor if you want, but that won’t make it one, and you can call waterboarding a friendly gesture if you want, but that won’t make it something other than torture. It is the old story about a rose is a rose is a rose. It doesn’t matter what you choose to call it. The Times got it exactly right when it said in the lead editorial of October 7, 2007 that Bush and Co. have conducted “a systematic campaign to mislead Congress, the American people and the world about those interrogation policies,” and administrative “lawyers concocted documents that redefined ‘torture’ to neatly exclude the things American jailers were doing and hid the papers from Congress and the American people.” (Emphasis added.) Misled (lied), concocted, hid – – all words fully applicable to the case, and nothing Levin said can change this.
Interestingly perhaps, the Levin footnote has pretty much been ignored in the past. Bush was claiming, and continues to claim, that we don’t do torture, the Levin memo was supposed to represent a renunciation of torture, and, in service of this lying whitewash, very few people bothered to notice that, as previously said on this blogsite, the footnote meant that the CIA is free to continue the torture it had been using and its action would not be called torture though it certainly is torture. All this, of course, is a favorite American game which permeates our advertising, our everyday speech, our political speech and military speech. It is the game of claiming that something is other than what it is. Jack Goldsmith is trying to hide behind this game.
There is one other important point that is involved here, certainly with regard to Bush and I think with regard to Goldsmith too. It is that governmental fear of possible attacks is rampant in the pages of Goldsmith’s book, and, he thinks, accounts for a lot of what was done that he finds wrong. (TP, pp. 12, 148.) Equally rampant with the fear was the determination to ward off attacks. (TP., pp. 98, 123.) The government was and is so fearful of attacks, and so determined to ward them off no matter what has to be done to accomplish this, that it felt that anything that had to be done to accomplish it was alright. Thus, if the government thought it took torture to accomplish it, then we would do torture but would not call it torture lest CIA people and high government officials be subject to prosecutions. We would call it by euphemisms that Goldsmith uses in his book — “flexible” interrogation techniques, “enhanced” interrogation techniques, a “special interrogation program, for high-value detainees.” (TP, p. 131, NYT, Oct. 4, p. 42, col. 1.)
The kind of fear that caused these euphemisms simply leaps off the pages — continuously leaps off the pages — of Goldsmith’s book. It is really what Roosevelt, I believe, called unreasoning fear. The administration seems to know no history. In the Civil War and World War II the existence of the nation truly was at stake. Yet we didn’t let fear rise to the paranoiac level that continuously jumps off Goldsmith’s pages. One wants to ask, “God, what is wrong with these guys anyway? They are totally paranoid.” Nor can it be thought torture might not have helped us in the earlier wars. How many thousands or tens of thousands of American lives might have been saved if torture had elicited the fact that a huge German attack was being planned through the Ardennes in what became the Battle of the Bulge? The country was at stake and maybe torture could have helped, but we didn’t do torture, and didn’t use euphemisms like “flexible” interrogation tactics or “enhanced” interrogation tactics.
Finally, let me say on this subject that there was one more reason why Addington and Company fought so hard to pressure Goldsmith and subsequently Levin — and were grateful to the arch criminal Yoo. Dr. Yes, Addington, Cheney, and that whole crowd were hell-bent — as Goldsmith makes plain in many places and as is more fully discussed regarding a huge variety of fronts by Charlie Savage in his book called Takeover – – and Cheney himself had been hell-bent since the 1970s, on increasing presidential power, on making the executive nearly all powerful while neutering Congress and the courts. (TP, pp. 93, 128.) Part of the desired increase in executive power was the ability to interrogate prisoners any way they wanted to, to spy on anyone they wanted to, etc. If this required saying that torture is not torture, but is instead some euphemism, then so be it. These guys didn’t care a whit about truth. They cared only about greater Presidential power. Such are the dogs among whom Goldsmith chose to lay down.
It is to Goldsmith’s credit that he often counseled, often tried to persuade, the Addingtons, the Gonzaleses, that the Executive ought to try to work with Congress rather than being hell bent on going it alone. But his advice had no takers among the thugs who opposed him, yet, as said, that crowd were the dogs among whom he chose to lie down because of his very conservative philosophy. (TP, pp. 123-128, 205, 214-215.)
There is another major matter on which the amount of print Goldsmith gives to defending an action, including a footnote that is almost a full page of text in length, indicates that he may have a bad conscience about it, or at least that he knows his conduct has been and is likely in future to again be the subject of bitter criticism. I speak of the supposedly “draft” transfer memo dated March 19, 2004 that itself says it was requested by Gonzales and that told the four named recipients that “As always, it is important that you keep this draft opinion a very close hold” (Greenberg and Dratel eds., The Torture Papers, p. 366), language that in plain English meant that, as always, this memo shouldn’t get out, should remain secret, lest people learn what we are doing, learn the ostensible legal bases for it, and object to our actions and skewer the claimed legal justifications. This memo, which was the reason for deductive criticisms of Goldsmith on this blog site three years ago when far less was publicly known about his actions, authorized the transfer of prisoners from Iraq to other countries for interrogation. Subsequent news reports stated that the memo was regarded as a ‘”green light'” for the transfer of up to a dozen prisoners out of Iraq to, we now know, secret CIA prisons where they were tortured.
Goldsmith’s memo, it was also reported, was used to facilitate the ghost detainee program in which various prisoners were hidden from the International Red Cross so that nobody would learn that they were prisoners, and contrary to the Geneva Conventions I gather, their status, health and whereabouts were not disclosed to their families. (Of course, by definition, we did not want anyone to know where they were or their health: for they were, after all, in secret prisons, so that we could secretly interrogate them through torture, which is not good for your health.)
(It seems at least conceivable that some of the prisoners had been transferred before the date of the memo, but ironically, a still secret prior opinion by Goldsmith had caused one prisoner to have to be brought back to Iraq, and Gonzales and Co. wanted a significant memo that would open the door to and legalize transfers. Goldsmith obliged. It is also possible, however, that all of the dozen prisoners were transferred out of Iraq only after Goldsmith’s draft memo was written. Due to government secrecy, I simply do not know which is the case. But either way, Goldsmith’s memo was the legalizing golden shield for the transfers.)
The transfer memo itself, as far as I can determine after scouring it, seems to contain not a single word, not one, about who the transferees will be, where they will be taken, or what will happen to them there. It is on this score wholly abstract, abstractly legalistic, and unmoored from fact (just as Goldsmith says was true of Yooian work to which he objected, and just as seems true of the Goldsmithian objections to Yooian work). Being abstract, unmoored from fact, and not mentioning who the transferees will be, where they will be taken, or what will be their fate, the transfer memo is also deeply disingenuous, as will be discussed below. We will also discuss below Goldsmith’s claim in his book that he did not know what was taking place — a claim which, were it true, should have led him to ask the purpose for which the memo would be used, just as any good lawyer, who is not bent on facilitating illegality or misconduct, seeks to learn the facts underlying a request for a legal opinion. Lawyers, you know, have been and should be punished for writing abstract legal opinions, without concern for the actual facts, that facilitated securities fraud or tax cheating.)
When the existence of Goldsmith’s transfer memo became known, the press reported bitter criticisms of it by scholars of international law. Scholars said the memo violated Article 49 of the Geneva Conventions, was unconventional, disturbing and even “‘extraordinarily disturbing.'” When news broke of the flap at Harvard over Goldsmith’s appointment, a Harvard professor of international law, one of those who vigorously opposed Goldsmith’s appointment was quoted as writing a colleague that the transfer memo was ‘”heartless in tone as well as ahistorical in content,'” that the Fourth Geneva Convention “was written with Nazi deportation practices in mind and was meant to prevent the kinds of transfers that Goldsmith’s memo authorized,” and that the only reasons for transferring prisoners would be ‘”to put pressure on them'” without the Red Cross knowing and protesting, or to “‘turn them over to somebody else that would be even more ruthless'”, meaning, one supposes, Syria, Egypt or the Saudis. (The Harvard professor, I should add, generously noted the possibility that Goldsmith ‘”may have been hoodwinked by the CIA,'” a possibility which, in the light of fuller information discussed below, seems to me to range from unlikely to impossible.)
The kindest comment I read or received about the Goldsmith memo’s conclusions on transfer came on December 16, 2004 in an email from a source from which one might not ordinarily expect a kind comment, the redoubtable Scott Horton. Saying that several committees of the New York City Bar Association had looked at the memo, Scott said they concluded that its argument on “‘temporary relocations'” presented “plausible arguments,” though it “on balance is wrong in that it is inconsistent with the spirit and letter” of Article 49 of the Third Geneva Convention. However, they felt that it “reflects responsible and high quality scholarship,” “was written in language which correctly communicated the problematic nature of the analysis,” and “it was therefore consistent with high professional standards governing documents of this sort.” They thus saw “no basis to condemn Professor Goldsmith based on this memo.” Whether Scott and his colleagues would feel the same way today, now that so much more is known, is something I do not know although, as indicated, others disagreed strongly with them even then. I do think it fair to say, however, that Goldsmith’s book (as well as Charlie Savage’s) makes clear that Addington, Gonzales and Co. would hardly be deterred by language (supposedly) communicating that the analysis was problematic, or would even be aware that such communication had occurred. They simply wanted a green light, and got it. Nor do I really agree that the language indicated “problematicness”, as opposed to presenting complexities of analysis that one is not surprised to find, that one expects to find, in any legal analysis by a sophisticated lawyer and that is generally thought — rightly or wrongly to be a hallmark of responsible, high quality scholarship.
In any event, given the criticism directed at his transfer memo a few years ago, it is little wonder that Goldsmith has attempted to defend himself about it. Defenses are explicit on pages 172-173 and 242-243 n. 45 of his book, and implicit defenses arise out of material on pages 141-142 and 155-159. The most fundamental point he raises is that he had been operating “under a veil of ignorance about governmental abuses.” (TP, p. 159.) There other points too.
The story in effect begins during Goldsmith’s early weeks as head of OLC in early October, 2003, when he had to opine on whether the Geneva Conventions protect terrorists in Iraq. (TP, pp. 39-42.) Goldsmith says he had studied such questions a bit when working for Haynes at DOD, as had other government lawyers. The particular question they had been looking at was whether the Fourth Geneva Convention, which governs the duty of an occupying power like the United States in Iraq (as opposed to the Third Geneva Convention, which governs the treatment of prisoners of war), gave protection to Iraqis and, if so, to which ones. Goldsmith studied this question further as head of OLC, and says this:
“Near the end of my first week on the job, the lawyers around the government reached a consensus: the convention protected all Iraqis, including those who were members of Al Qaeda or any other terrorist group, but no Al Qaeda terrorists from foreign countries who entered Iraq after the occupation began. (TP, p. 40.)
The point that is key for present purposes, as we shall see later, is that Goldsmith and other government lawyers felt that the Fourth Geneva Convention did not protect Al Qaeda terrorists in Iraq who were not Iraqis and had entered Iraq — obviously to fight against the U.S. — after the occupation began.
Goldsmith’s conclusion – – that Geneva IV protected all people in Iraq except non-Iraqis who entered it after the occupation began — gave heartburn to George Tenet, Gonzales and Addington, who “was just plain mad,” because they wanted there to be no such protection. (TP, p.41.) Referring in a White House meeting with Goldsmith to a February 2002 Bushian “decision that al Qaeda and Taliban detainees did not receive POW or other protections under the Third Geneva Convention” (TP., pp.41-42, emphasis added), Addington “barked” that ‘”The President has already decided that terrorists do not receive Geneva Convention protections.'” ‘”You cannot question his decision.”‘ (TP, p.41.) Goldsmith then “explained that I agreed with the President’s 2002 decision, but that the situation of terrorists in Iraq was legally distinguishable because the very different Fourth Geneva Convention, not governed by the President’s decision, applied there.” “A few unpleasant minutes later,” Goldsmith found himself driving back to the DOJ. (TP, p.41) He had stood up to Addington, but that he had aggravated the brute is clear. Imagine, he was questioning the decider — although really he wasn’t because he agreed with the decider that under Geneva’s third Convention, Al Qaeda and Taliban detainees “did not receive POW or other protections” (TP, pp. 41-42), which loosely translates into torture the bastards if you want to, Geneva III doesn’t stop you.
The story then picks up about six months later in the evening of the day when the story of Abu Ghraib broke on television. (Earlier that day, the Solicitor General, Paul Clement, had assured the Supreme Court at oral argument that the US does not torture captives.) While Goldsmith “stared in astonishment at the photos of sadistic violence on the television screen, my mind began to race. Was I indirectly responsible for the abuses? Could I have done something to stop them?” (TP, p. 141.) (The answers are yes and yes, for reasons discussed above.)
Goldsmith then says he “had begun worrying about the possibility of excessive interrogations about eight weeks after I arrived at the Justice Department in October 2003.” For “During October and November” he had “spent a lot of time in . . . . Supersecret Sensitive Compartmented Information Facilities that are immune from bugging… being briefed by somber officials from the White House, CIA and National Security Agency about some of the government’s highly classified counterterrorism programs, ” each of which , he “learned, had been approved by OLC and backed by [a usually Yooian?] OLC opinion.”(TP, pp. 141-142, 10.)
“[A]bout six weeks into the job,” a deputy whom Goldsmith trusted warned him that there were opinions “that may contain serious errors”. After reading “a short stack of opinions” given to him by the deputy, two that “stood out” were Yoo’s general torture opinion of August 1, 2002 and the very similar opinion Yoo sent to DOD in April 2003. (TP, pp. 142-143.)
The key point here, as shall be returned to later, are that in October and November 2005 Goldsmith received briefings on some of the nation’s highly classified antiterrorist programs — in facilities immune from bugging, no less — and around that time he also developed reservations about whether “excessive interrogations” were taking place, all of which caused him to wonder whether he had been indirectly responsible for abuses when Abu Ghraib broke. (I think he did bear responsibility because of his failure to deal with the second Yooian memorandum of August 1, 2002, which detailed what could be done and was being relied on by the CIA.)
The story now moves to Goldsmith’s defense, in his book, of his transfer memo dated March 19, 2004, a date long after he was told about supersecret counterterrorism activities in supersecret bug-proof quarters, developed questions about possible “excessive interrogations,” and had done nothing about the second Yoo memo of August 1, 2002.
It is notable that, in his roughly three or four explicit pages of defense on this subject, never once does Goldsmith say he did not know about or support the torture that was occurring. He does not say it here even though, if true, it would be the most persuasive defense he could offer. Had he claimed here to be innocent of knowledge, this would have focused attention on that claim, which cannot be successfully maintained as nearly as I can see. So instead he proclaims innocence of knowledge elsewhere in the book, saying that he had withdrawn Yoo’s memo of August 1, 2002 “under a veil of ignorance about governmental abuses” (TP, p. 159), while in the pages on the transfer memo he focuses the reader’s attention solely on other matters entirely.
Why does one say that Goldsmith’s claimed innocence of knowledge of what he euphemistically chooses to call “excessive interrogation,” i.e., torture, cannot plausibly be maintained? The reasons from his own book are several, each being explicitly or implicitly inconsistent with supposed lack of knowledge. He says in the book that he had developed concerns about “excessive interrogation” as early as eight weeks after he arrived at the DOJ. He says that he had received supersecret briefings on antiterrorism activities in his first eight weeks. He says that early-on he had read a stack of dubious memos that caused him great concern, including general memos on torture — and he expressly admits that he read the accompanying memos of August 1, 2002 and March 2003 that detailed and approved the actual techniques of interrogation that could be used. (The techniques the CIA is using have been regarded as torture for decades or longer, but he claims them alright because they supposedly “contained elaborate safeguards.” (TP, p. 151) To say that this claim is dubious and lacks credibility in light of what now is publicly known is to understate the matter.) He says that when the news of Abu Ghraib broke, he was concerned that he had indirectly been a cause. He says that he knew of but could not make up his mind about whether actual CIA techniques were illegal. He was reluctant to call them illegal, he says, because they had, after all, been “vetted in the highest circles” of government, and because he did not want to pull the rug out from under CIA officers who had depended on the golden shield. He says that he knew of a later DOD memo defining permissible interrogation techniques — one of which, incidentally, which required Rumsfeld’s personal approval, was a form of waterboarding, albeit the least torturous form if there can be something considered a less torturous form. All of these points, which come out of his own mouth in his own book, make it dubious in the extreme that Goldsmith did not know — could not even suspect — what was going on when he wrote a memo giving legal approval to transferring people out of Iraq for interrogation, and wrote it without even mentioning who the people might be or where they were being sent. Indeed, his admission that he read the second, still secret memo of August 1, 2002 that detailed specific interrogation techniques being used by the CIA makes it flatly impossible that he did not know or suspect what was going on when he wrote the transfer memo.
At the point in his book where he discusses the transfer memo but elides the question of knowledge, Goldsmith defends himself by saying:
“In any event, I never finalized the draft, it never became operational, and it was never relied on to take anyone outside of Iraq. I do not know whether the request for legal advice about relocating Iraqi prisoners outside Iraq for questioning was associated with a broader rendition program. But I do know that the draft opinion could not have been relied upon to abuse anyone, not only because it was never finalized, but more importantly because it stated that the suspect’s Geneva Convention protections must travel with him outside Iraq.” (TP, pp. 172-173, for omitted.)
This defense appears to be in part dishonest, in part disingenuous and in part misleading. That the draft “was never relied” on to transfer prisoners outside of Iraq because it was “never operational,” is flatly incorrect according to information that came available in 2004. Finalized or not, “operational” or not, it was relied on according to insiders whose comments were reported in the news — which would seem to mean, incidentally, that it was regarded by others as sufficiently “operational” and “finalized,” as further evidenced by the fact that there apparently were never any requests to change it.
And incidentally, if he knows as little as he claims to know about what was going on, how does Goldsmith know that supposedly nobody was ever transferred out of Iraq based on his memo?
That Goldsmith does not know whether the request he received for a memo on transfer “was associated with a broader rendition program” is, even if true, misleading and disingenuous. True, one of the claims back in the day (i.e., in 2004) was that rendition was involved. But rendition, as the word was meant then and is meant now, means transfer to the government of another country — Syria, for example — for interrogation via torture. But also involved then, and perhaps exclusively involved now, are claims not of rendition to other governments for torture, but transfer to secret American prisons for torture by Americans in the CIA. Such transfer is not rendition. Nor does Goldsmith address it. His claim about rendition is, at this point in time, just smoke he is blowing in people’s faces, while he avoids the real question of whether prisoners were being transferred to secret American prisons outside of Iraq to be tortured by Americans.
His claim that his opinion “could not have been relied upon to abuse anyone” is more disingenuous, misleading smoke. Of course the memo couldn’t be relied on to abuse anyone — for other than saying that prisoners’ Geneva protections, if any, followed them out of Iraq, the memo didn’t deal with abuses, i.e., it did not deal with what interrogation conduct is legal or illegal. It dealt only with the legality of transferring prisoners out of Iraq. The question of what interrogation tactics would be an abuse or not, would (subsequently) be torture or not, was and is a wholly separate question that was the subject of other memos entirely.
Equally disingenuous smoke is Goldmsith’s claim that a crucial reason his memo could not have been relied on to “abuse” people is, as said, that he opined that the transferee’s Geneva protections travel with him when he is transferred. Goldsmith elaborates on this in a nearly full page footnote. (TP, pp. 242-243.) There, he discusses a footnote, located at the very end of his transfer memo itself, where he said a so-called “protected person” who is transferred will retain his Geneva Convention benefits. But in discussing in his book his claim that he previously said a “suspect’s Geneva Convention protection must travel with him,” Goldsmith neglects to mention — one can hardly avoid thinking it almost a certainty that he deliberately neglects to mention — something he told us in some dense paragraphs 130 pages earlier. He neglects to mention that non-Iraqis who come into Iraq after we occupied it — that is, various Al Qaeda guys and jihadists of other stripe — have no rights under Geneva according to the United States. The decider decreed, and Goldsmith agreed, that no Al Qaeda or Taliban types had any rights under Article Three of the Geneva Conventions, and Goldsmith and other government lawyers had agreed that Al Qaeda people who entered Iraq (to fight us) after we occupied it had no rights under Article Four of the Geneva Conventions, which governs the activities of an occupying power. So Goldsmith is claiming absolution because he admonished that a prisoner’s Geneva protections followed him out of Iraq, although he is aware that non Iraqi Al Qaeda guys who came into Iraq after the occupation began have no Geneva protections according to the United States. You cannot be followed by protections that do not exist. What is more, one is willing to bet that a lot of the people whom we have transferred out of Iraq for torture fall into this wholly unprotected category, although due to secrecy it is impossible to know.
One is hard pressed to avoid thinking that Goldsmith not only is dissembling here, but that his dissembling conceivably could be implicitly based on the widely held belief of elite lawyers that the rest of us are as stupid as they think we look. I mean, after all, what is the chance that when reading his mea non-culpa on pages 172 and following, some dummy will recollect something he briefly said in dense paragraphs over 130 pages earlier, on pages 39-40, and will put two and two together? The chance wasn’t high. It was a good bet if he made it. But if he made it, he lost.
Goldsmith also defends himself in his lengthy footnote by claiming he opined that the transfer for interrogations had to be “temporary” or “brief” under the Geneva Conventions (for those who had Geneva protections, I guess, which would probably exclude some or all of the dozen who were taken out on the basis of his memo). But his opinion never opined on what temporary or brief may mean. So maybe it means three months, six months, or a year, all of which are temporary, and are even brief in the context of a lifetime. Anyway, just how long does it take to torture someone into talking? One would bet it can be done in some period that could be described as temporary or even brief. And as matters eventuated, while secrecy precludes one from knowing (at least without a lot more research than I have time to do), it seems a pretty good bet that ultimately the transferred prisoners were not sent back to Iraq, as Goldsmith’s memo naively claimed they must be (at least if they had Geneva protections), but were kept for years in secret CIA prisons, and then may ultimately have been among those sent to Guantanamo after years in the CIA’s black holes.
There is one other point that must be mentioned because it is the ultimate in, is the absolute acme of, dissembling. It is not in Goldsmith’s book. It is in his memo. I have not seen it referred to elsewhere as of yet, but it certainly should be.
In order to find prisoners transferable out of Iraq under the Geneva Conventions, Goldsmith’s transfer memo says, the transferees could not be “‘persons accused of offenses.”‘ (The Torture Papers, p. 374.) A person’ against whom some form, any form, of judicial proceedings have begun is one accused of an offense and cannot be removed from Iraq. (The Torture Papers, pp. 374-375.) But, opined Goldsmith, “mere suspicion of an offense,” does “not constitute the [transfer disqualifying] . . . accusation “of an offense, nor would interrogations based upon such suspicion.” (Id.) Even if a “person is strongly suspected of committing an offense,” detaining him for questioning does not make him an accused person who is not transferable. (Id. (Emphasis added.)
Now, what does this mean in plain English, and what did Goldsmith do in plain English. In plain English, we captured Al Qaeda guys in Iraq and elsewhere. Some have been described as the worst of the worst. We knew damn well, or at least the government was 200 percent sure, that they were guilty. But we wanted to torture them to get information, so in order to do so we would refrain from beginning any judicial proceedings against them until after they had been tortured for long periods, though we were dead sure of their guilt. By not formally accusing them in any judicial way, we could, according to Goldsmith, transfer them out of Iraq because formally they were not yet “accused persons” although in fact our government had already accused and convicted them every way but sideways. This is true dissembling. This is true reliance on minimal form over gigantic substance. And this is exactly what Jack Goldsmith did in his memo of March 19, 2004.
* * *
As said before, Goldsmith maintained secrecy for years about things he discusses in his book. For all one knows, perhaps he thought the “revolt” he led had accomplished some good. After all, he says that Gonzalez, who had always treated him well, mused when he was leaving OLC that maybe the opinions he withdrew were as bad as Goldsmith had said they were. (TP, pp. 171-172.) And Newsweek anointed him a Kennedyesque-type hero.
But Goldsmith had done no good at all with regard to torture and he missed the mark regarding Gonzales, who was eternally grateful to Bush for boosting his career. This all became abominably clear from the New York Times’ seven column expose of October 4, 2007.
When Gonzales became Attorney General in February 2005, about half a year after Goldsmith left OLC, “he moved quickly to align [the DOJ] with the White House after a 2004 rebellion by staff lawyers [by Goldsmith, et al] had thrown policies on surveillance and detention into turmoil.” (NYT, Oct. 4, p. A1, col 5.) I don’t know what was done with regard to electronic surveillance because I don’t follow the NSA imbroglio closely enough, and the Times’ piece doesn’t cover it much, although one has the impression, rightly or wrongly, that more people than ever are now being surveilled, perhaps without warrants. But I do understand the Times revelations on torture. What Gonzales hath wrought, is this:
o Secret memos written in 2005 by Goldsmith’s successor as head of OLC, Stephen Bradbury, approved the use in combination of horrible acts of torture when interrogating prisoners. (Bradbury, who I’m sorry to say is a graduate of the same law school I am, is said to be sympathetic with what the CIA is trying to do.)
o The 2005 secret memos have been reconfirmed by several more recent ones.
o Gonzalez rarely resisted Addington and his master, Cheney.
o In July 2006, Bush signed a secret executive order, that was reviewed and approved by Bradbury, authorizing ‘”enhanced interrogation techniques'” (i.e. torture, which Bush repeatedly, lyingly, says we don’t do), and the CIA’s “black sites” — its secret prisons — are doing business.
o Even CIA interrogators themselves had been concerned that the use of the relevant techniques in combination constitutes torture, so they requested golden shields.
o The experts differ dramatically on whether torture is the best way to get good information. (Books by James Risen and Charlie Savage disclose serious misinformation obtained via torture.)
o Any lawyer advising against what the administration wishes to do is vilified by administration officials (and would never advance, as Addington would insure. (TP, p. 169.))
o Even before the McCain amendment barring “cruel, inhuman or degrading treatment” was finally enacted by Congress, Bradbury issued a secret opinion saying the amendment would not require any change in CIA interrogation tactics, and sometimes would even allow waterboarding.
o It is now obvious, I believe, that the infamous signing statement that Bush attached to the McCain amendment — which the Times discusses, and which Charlie Savage says was attached to the McCain amendment via stealth on a Friday night after the press had gone home and was written in dense legalese — was drafted to assure the CIA that it should go right on doing what it was doing because Congress supposedly cannot interfere with Bush’s claimed powers as commander-in chief and head of the so-called unitary executive. (The Times also says the administration, in response to McCain, gave up some CIA techniques. There is no specific mention of what they might be, however, although one deduces from other parts of the article that the CIA may have had to sometimes give up waterboarding. One can only wonder how horrible other tactics might have been if they had to be given up entirely while waterboarding, as awful as it is, still can be used in certain situations.)
So, whatever misguided reasons, misguided beliefs in the current administration,
misguided right wing views, or governmental threats directed to him, may have motivated Goldsmith to keep silent for three years about what he knew — to keep silent until he wanted publicity for his book — it is clear that his silence did no good. It simply enabled the continuation and enlargement of evil.
* * *
One final point. At various places in his book Goldsmith compares the situation faced by the Bush Administration to the situations faced by Lincoln and FDR in the Civil War and World War II. He also uses the supposed similarity in situations, and certain falsely claimed similarities in responses, to try to justify what the Bush administration has done (and to justify, by reflection, what he has done). (TP, pp. 11-12, 43-53, 168, 192-203.) He even claims that maybe some day people will see George Bush as they now see Lincoln and FDR. (TP, p. 214.) The only differences he sees are the nonetheless important ones that Lincoln and FDR consulted widely and worked with Congress whenever possible, whereas the Bush administration, contrary to Goldsmith’s urgings, made the grave mistake of trying to go it alone in an attempt to try to vastly increase Executive power at the expense of Congress and the courts. (TP, pp. 205-213.)
No doubt Goldsmith is right to say Bush should have consulted widely and worked with Congress, as Lincoln and FDR did. Nonetheless, the fundamental comparison of the situations faced by Lincoln and FDR with the situation faced by Bush, and the comparison of the responses of Lincoln and FDR with the response of Bush, make the mind reel. Without getting into the specifics, which I have discussed at other times, Lincoln and FDR were confronted with the possibly imminent destruction of our armed forces and nation, while George Bush is faced only with a bunch of terrorists, and Lincoln and FDR, in their far graver situations, did not order torture, while George Bush, in his much less grave situation, did. To compare the situations and actions of Lincoln and FDR with the situations and actions of Bush is beyond words, is beyond obscene, is as far beyond contempt as the claim by the law professor I haven’t named that Goldsmith is culpable for assertedly violating the attorney/client privilege. And the guy who has made the obscene, contemptible comparisons “graces” the Harvard law faculty? Oh my. How Harvard has fallen.
LAWRENCE R. VELVEL is the Dean of Massachusetts School of Law. He can be reached at firstname.lastname@example.org.