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:
· 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.)
· The 2005 secret memos have been reconfirmed by several more recent ones.
· Gonzalez rarely resisted Addington and his master, Cheney.
· 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.
· Even CIA interrogators themselves had been concerned that the use of the relevant techniques in combination constitutes torture, so they requested golden shields.
· 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.)
· 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.))
· 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.
· 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.)
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