October 12, 2007Re: Although The Conventional Wisdom Of The Pols And The Mainstream Media Have Now Anointed Him A Hero, In Truth Jack Goldsmith Stands Convicted Out Of His Own Mouth As Well As By Recent Events.
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 blogs 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.)
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.