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.
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