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 It has never been withdrawn.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 The second, non-withdrawn memo must have approved these things because it was devoted to the actual tactics, the CIA people were demanding a golden shield that would protect them from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.
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