Jack Goldsmith was one of the good guys in the Bush administration, resisting the internal push by David Addington and John Yoo to essentially legalize torture. Therefore his opinion about how to proceed with corrective and preventative action deserves some attention. Essentially he says let the current investigations run their course, and discourages the Obama administration from pursuing prosecutions, or even setting up a sort of Truth and Reconciliation Commission.
Second-guessing lawyers' wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.
Now, I have said “There simply must be prosecutions.” I'm a little less certain of that than I was when I wrote it, for a number of reasons — not least of which is the apparent legal no-man's-land in which the President's Office of Legal Counsel resides.
But I find Goldsmith's argument to be really unsatisfying. He says the CIA will be cowed into timidity if more investigations or prosecutions go forward. But that seems like an ends-based argument, like “If you send that murderer to prison, he won't be able to feed his family.”
But in any event, the emphasis on lower-downs in the CIA really misses the point: That our executive branch gave them catastrophically bad legal advice, and an urgent, even panicked mandate to “take the gloves off” with terror suspects. To target the people who actually did the dirty work might indeed be unjust, if they did it believing in good faith that it was allowed and even necessary.
No, the emphasis must remain on the upper-executive-branch decision makers. To let Addington, Yoo (and by extension, Cheney and Bush) off the hook means that their theories of unchallengeable executive power were essentially correct: The president can do whatever the hell he wants — “L'etat, c'est moi.”
Even an election defeat is insufficient corrective to so dangerous and un-American a theory. After all, what prevents President Obama's legal team from offering up the same theories now? Do we just have to trust that well, Obama's really a much nicer/more honest guy than Bush? Is that enough to prevent war crimes becoming utterly banal in the executive branch?
I don't know. I can see how thorny the legal issues are. But I don't see how we can avoid the coercive power of law being brought to bear on this issue. If there are no penalties, there's no law.