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.)

 1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9