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Goldsmith on torture investigations

November 26, 2008 By Charley on the MTA 31 Comments

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.

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Filed Under: User Tagged With: addington, cia, jack-goldsmith, obama, terrorism, torture, yoo

Comments

  1. farnkoff says

    November 26, 2008 at 3:59 pm

    You’re a true Progressive in my book.

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  2. mr-lynne says

    November 26, 2008 at 4:01 pm

    Here is Greenwald interviewing Scott Horton who wrote a current Harper’s story on this issue:

    <

    p>

    …he [Horton] argues that it is imperative to investigate, expose, and prosecute the Bush administration’s war crimes, particularly its torture of detainees.  Scott sets forth a detailed proposal for how this should be pursued, beginning with the creation of a Truth Commission to expose what was done and to generate public support for further proceedings, followed by prosecution.

    <

    p>From the transcript:

    <

    p>

    SH: … It is true that we need to have uniform standards for the application of law, and it’s also true that when one president leaves office and a new president comes into office, we can’t appear to be engaged in some sort of retaliation or retribution against his predecessor relating to differences in policy. That’s something that’s supposed to be taken care of by the political process.

    Now, when we deal with the question of torture, we’re not dealing with legitimate issues of policy differences between the administrations; we’re dealing with something that clearly is a crime, that has been established as a crime for centuries…

    <

    p>

    SH: When we look at all these things in tandem, we see that there’s a collective attitude that applies across the board, which is, they don’t care about criminal law limitations on the power of the president. They believe the president has the right to ride roughshod over them.

    …

    And they could only do that by getting high-level policy makers and people down the line to accept their position of being above the law. So they did that. They were basically governing via being at war with the law, and that’s something that has not happened before. The closest case we had previously was the Nixon administration, but what I think what happened there is bland compared to what happened under George W. Bush.

    <

    p>I think there have been consequences to our reluctance to impeach or prosecute Nixon.  Those consequences pale in comparison to what will be available to future office-holders if this gets by without legal consequence.

    <

    p>There has to be a legal resolution if you want to bind any future administration to the law.  Call me crazy but such a binding seems like a wholly advisable, nay necessary, thing.

    <

    p>

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  3. mr-lynne says

    November 26, 2008 at 4:05 pm

    “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.'”

    <

    p>Its worse than that, it lets any future administration legally justify anything they want to do by just putting any yes man (qualified or not) in the Office of Legal Council to write (make up) memo’s ratifying any legal ‘interpretation’ the Executive wants, actual laws be damned.  Indeed, as Yoo has demonstrated, the OLC can bypass all laws written by congress merely by ‘interpreting’ from the Constitution directly.  

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    • farnkoff says

      November 26, 2008 at 4:29 pm

      the Power of the United States Commander-in-Chief trumps everything else in the U.S. Constitution, as well as all international treaties and agreements.

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      • mr-lynne says

        November 26, 2008 at 8:15 pm

        …from Digby:

        <

        p>

        Jack Goldsmith tells us that if there are any prosecutions or further investigations into the torture regime the lawyers who give president’s legal advice in the future will feel constrained and we’ll all be killed in our beds. …

        … If these lawyers advise the president to break the law they should be prosecuted like any other lawyer who advises a client to break the law. I suspect that isn’t an easy thing to prove, but the principle should always apply.

        … If this is the new governmental principle we live by, then let’s dismantle the whole justice system and depend upon the “good guys” to make sure the “bad guys” don’t go overboard when they are “keeping us safe.” We’ll call it an authoritarian democracy and save a lot of money.

        These people are being deeply unpatriotic if they say they won’t keep the country safe because they are afraid of being prosecuted. …

        …

        I do not accept this idea that in order to keep the country safe we have to allow all these people to break the law and suffer no consequences. It’s a complete inversion of the entire system. The reason we have a constitution and a bill of rights in the first place is to keep the citizens safe — from the government.

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        • kirth says

          November 27, 2008 at 7:20 am

          …if there are any prosecutions or further investigations into the torture regime the lawyers who give president’s legal advice in the future will feel constrained…

          They damned well ought to feel constrained from telling a President he can ignore laws. This idea that the Executive Branch can do whatever it wants needs to be slapped down hard, with serious penalties for the people who put it into action. We, as a nation, missed a chance to nip it in the bud with Nixon. It came back worse than ever with Cheney and Bush. If we miss this opportunity, it will happen again. One of these times, it’s going to take hold and we can kiss our freedoms goodbye.

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  4. daves says

    November 26, 2008 at 5:37 pm

    So a government lawyer writes a legal opinion that is incorrect. What crime shall we charge him with?  

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    • charley-on-the-mta says

      November 26, 2008 at 6:06 pm

      Tendentiously, though, I think.

      <

      p>Don’t you think “a government lawyer” kind of minimizes the issue?

      <

      p>And was it merely “incorrect”, or actually utterly counter to the letter and spirit of the Constitution — indeed the entire idea of separation of powers and the rule of law applying to rulers themselves?

      <

      p>But to your point, I don’t know with what to charge them. But I could imagine war crimes.

      Log in to Reply
      • kirth says

        November 27, 2008 at 7:27 am

        http://thomas.loc.gov/cgi-bin/…

        (a) OFFENSE- Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

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    • power-wheels says

      November 26, 2008 at 7:01 pm

      Charley seems to think that his general thoughts on government should trump the 200+ years of federal legal precedent relied on by these lawyers. And he’s sure they should be prosecuted, but he can’t actually cite a criminal statute that was violated when a high ranking government lawyer rendered a legal opinion in an unclear area of constitutional law. Luckily, prosecuting attorneys rely on actual law rather than anger and conjecture, so no prosecutions are likely here.

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      • charley-on-the-mta says

        November 26, 2008 at 7:56 pm

        What’s unclear about whether the president has to follow the law — like the Geneva Conventions, say? That’s a serious question. If you’re familiar with “200+ years of federal legal precedent”, then I’d really like to hear a stirring defense of Addington and Yoo.

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        • power-wheels says

          November 26, 2008 at 9:26 pm

          entitled “a republic — if you can keep it.” I don’t know how to create a link since I’m using my phone to connect to the Internet, but it should be easy enough to find.

          <

          p>If a law violates the constitution then the President has an obligation not to follow the law. The opinions that you think should cause their authors to be prosecuted set forth a reasonable argument as to the interaction between the President’s inherent Art. III powers and the laws in question. Like it or not, this is a relatively unclear area of constitutional law, and these lawyers made an attempt to interpret what precedent is available.

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      • mr-lynne says

        November 26, 2008 at 8:23 pm

        … that they are incorrect.

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        • power-wheels says

          November 26, 2008 at 9:28 pm

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          • mr-lynne says

            November 26, 2008 at 10:21 pm

            http://www.salon.com/opinion/g…

            <

            p>

            A Bush-41-appointed Federal District Judge yesterday became the third judge — out of three who have ruled on the issue — to reject the Bush administration’s claim that Article II entitles the President to override or ignore the provisions of FISA.

            …

            (1) As indicated, Judge Walker became the third federal Judge to reject the Bush administration’s legal excuse for breaking the law. Now that Judge Walker has joined Federal District Judge Anna Diggs Taylor in the Eastern District of Michigan and Sixth Circuit Court of Appeals Judge Ronald Gilman in so ruling, this means that every federal judge to rule specifically on the Bush administration’s legal excuses for violating FISA has rejected those excuses (as even Bush-cheerleader Andy McCarthy admitted, the Supreme Court’s 2006 decision in Hamdan also “sounds the death knell for the National Security Agency’s Terrorist Surveillance Program (TSP)” by effectively rejecting the President’s legal excuses for violating FISA).

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            • power-wheels says

              November 27, 2008 at 12:24 am

              the MI district judge was overruled by a majority of the 6th Cir panel that heard the case, and that 6th Cir judge was writing in dissent in the same case. The ultimate outcome of that case was a dismissal for lack of standing. I’m not familiar with Judge Walker’s opinion, but the first two cites are most decidedly not the current status of the law.

              <

              p>And the FISA issue is different than the interrogation techniques issue. The FISA issue deals with the President’s Art II power generally, but there were 4th amendment claims in the case. Clearly no lawyer has taken the position that the President’s Art II power trumps the 4th amendment.

              <

              p>So that quote, and the decisions giving rise to that quote, really don’t demonstrate what you’re claiming.

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              • mr-lynne says

                November 28, 2008 at 2:04 pm

                … what I asserted is true.  Judges considered the Article II arguments specifically in their rulings and rejected them.  That’s what I claimed they demonstrate and that’s what they do demonstrate.

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                • power-wheels says

                  November 28, 2008 at 3:47 pm

                  you cite 3 cases addressing the President’s Art II interpretation in a different context.  I am familiar with 2 of the cases you cite, both of which have been rejected. The MI district court decision you cite was overturned, and the 6th Cir judge you cite was writing in dissent of the 6th Cir majority which did the overturned. This is a very weak argument as to why the attorney’s opinions in this context are incorrect.  

                • mr-lynne says

                  November 28, 2008 at 3:51 pm

                  … of course they have been rejected in different contexts.  Nonetheless, they have been rejected by sitting judges.  That’s all I claimed and it is true.  

    • mr-lynne says

      November 26, 2008 at 8:22 pm

      … advises his or her (or any) client to break the law there are consequences.  If said lawyer defends his advice as ‘legitimate legal interpretation’, I assume there are mechanisms in some procedure (the lawyers disbarment hearing or criminal prosecution?) where the merits of that defense can be hashed out by the system.  I assume that there are limits to that defense and that there is a mechanism to enforce those limits.  

      <

      p>I assume all of the above and the lawyers in the room will have to correct me if I’m wrong.  If any of the above is not true,… it should be.  It simply shouldn’t be legal to be able write some bullshit in service of encouraging someone to break the law.  There are consequences to frivolous litigation, there should be consequences to ‘fig-leaf legal justification’.

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      • farnkoff says

        November 26, 2008 at 8:29 pm

        to defend Bush and Cheney at their respective trials.

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        • bob-neer says

          November 27, 2008 at 11:53 pm

          Based on their comments so far on this thread. Although I admit that is a low bar 😉

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      • power-wheels says

        November 26, 2008 at 9:33 pm

        of whether this advice is “bullshit” as you claim. You need to understand that there is a long history of court cases deciding that the President has inherent powers under Art. III, but the exact extent of those powers is not clear. Prosecuting the President’s attorneys for interpreting what little precedent there is and rendering a legal opinion in this area is an exercise in futility as well as a terrible precedent to set.

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        • mr-lynne says

          November 26, 2008 at 10:13 pm

          … that someone could say “green-beans” and put it up as a defense of a legal theory.  There has to be limits.  There has to be a system to test and enforce those limits.  There has to exist the potential for a particular instance to be hypothetically beyond those limits and a system to rectify the problem.  

          <

          p>Not confronting the problem isn’t a good option, the consequences of inaction are to destroy any semblance of being a nation of laws.

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  5. christopher says

    November 26, 2008 at 7:15 pm

    Unfortunately I forget the title (“Takeover”, maybe?), but it was when I read a book that talked about this that I decided that someone really should have been impeached.  In a criminal trial you could probably get away with, “I was just following advice of counsel.”, but in a political proceeding that might fall flat, especially if there could first be a Supreme Court case that ruled against the President.

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    • farnkoff says

      November 26, 2008 at 8:25 pm

      Not sure that is ever an adequate defense for a crime. Neither is “ignorance of the law.”

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  6. russman says

    November 26, 2008 at 8:52 pm

    Last week, Professor Goldsmith spoke at my school, and essentially presented the argument that you’re discussing here. I think you’re somewhat misrepresenting him, Charley. You say that his argument that the CIA shouldn’t be “cowed into timidity” by prosecutions is ends-based, but I think he would probably argue, as he did at my school, that the Administration is already very much afraid of the law, and that we have to prevent the Executive branch from being paralyzed by a fear of prosecution, because if they are, they may not take necessary action that is borderline-legal to prevent terrorist attacks.
    However, I believe that you’re correct, Charley: it seems that the Executive branch could stand a little more fear of the law than they have had in the past few years. Furthermore, it is definitely true that if we want rule of law, we must have prosecutions when crimes are committed.
    Finally, you’re definitely right that the progressive community will do itself NO favors by counting on Obama to just do the right thing because he’s a good guy. “Trust me” is not the basis of Constitutional democracy; we always need rule of law, and we always need an organized populace to make its voice heard and take part in the country’s governance.

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  7. bob-neer says

    November 28, 2008 at 12:33 am

    The Constitution is designed to allow competition between the branches: many of its provisions are vague. The Bush administration played its hand very well, from the perspective of forcing what it wanted through. What they demonstrated was that absent push-back from the other branches the words of the Constitution are of only political value insofar as they frame the debate for the next election — they have little or no practical power. In my view, responsibility for torture lies first with those who voted for Bush, second with those who had the institutional power to resist him but failed to use it.  

    <

    p>All of which is to say that convicting Yoo and Addington and throwing them in jail for life (or killing them, since capital punishment might be invoked) is unlikely to prevent torture — or, more generally, the greater executive accountability you seek — in the future under a similar set of circumstances, because power will always find lackeys to do its bidding. Sure, some people might be scared if they are asked to draft torture memos by some future George if Yoo etal are prosecuted. But others will take their place.

    <

    p>The only way to prevent future Executive over-reaching  is future proactive action by Congress and the Courts, and continued elections to throw the bums out.

    <

    p>I grant it certainly would be satisfying to see Bush, Cheney, Yoo, Addington and the rest forced to answer for their actions in a court of law. Lots of information would come out. It would, however, establish a pattern of retroactive prosecution of top political officials that has not been characteristic of our politics, with potentially destabilizing consequences.

    <

    p>I think the more important issue is to make sure that Obama stops U.S. torture, closes Guantanamo and so on. There are no doubt powerful forces at work to convince him not to do any of that. That should be the first priority.

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    • mr-lynne says

      November 28, 2008 at 2:02 pm

      … its about not being above the law and demonstrating it through our acts.  Absent such a demonstration the laws an the books and our whole system of legislation.

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      • farnkoff says

        November 28, 2008 at 2:13 pm

        Justice itself. People suffered due to Bush and Cheney’s crimes, even if Bob Neer and Dan Farnkoff were relatively unaffected.

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    • mr-lynne says

      November 28, 2008 at 2:10 pm

      … shouldn’t be discarded when navigating prosecutions.  That is, after all, a foundational concept for plea bargaining.   Problem is, for all the protestation about the practical considerations of prosecutions, I assert that the practical considerations of consequences for not prosecuting are under-weighed.  This is logical because such consequences are much longer term,… it’s kicks the can down the road.  Problem is, it’s been long enough now that we can clearly see, as a practical matter, consequences of the prosecution decisions for Watergate and Iran-Contra.  What crimes will future administrations be given virtual immunity for (for lack of spine and protestations of ‘pragmatism’)?  How clearly will the results of such a future non-prosecution be seen as a ‘practical’ consequence of our lack of action on current law-breaking?

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