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.
You’re a true Progressive in my book.
Here is Greenwald interviewing Scott Horton who wrote a current Harper’s story on this issue:
<
p>
<
p>From the transcript:
<
p>
<
p>
<
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>
“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.
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.
…from Digby:
<
p>
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.
So a government lawyer writes a legal opinion that is incorrect. What crime shall we charge him with?
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.
http://thomas.loc.gov/cgi-bin/…
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.
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.
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.
… that they are incorrect.
http://www.salon.com/opinion/g…
<
p>
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.
… 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.
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.
… 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.
… 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’.
to defend Bush and Cheney at their respective trials.
Based on their comments so far on this thread. Although I admit that is a low bar š
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.
… 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.
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.
Not sure that is ever an adequate defense for a crime. Neither is “ignorance of the law.”
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.
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.
… 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.
Justice itself. People suffered due to Bush and Cheney’s crimes, even if Bob Neer and Dan Farnkoff were relatively unaffected.
… 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?