I’m surprised that I have seen absolutely nothing in the blogosphere about Jack Goldsmith’s piece in today’s WaPo, which argues that the Obama Administration should forgive and forget when it comes to the Bush Administration’s torture policies:

[Both prosecution and a bipartisan commission are] bad ideas. They would bring little benefit, and they would further weaken the Justice Department and the CIA in ways that would compromise our security. . . .

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. . . .

When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to “retroactive discipline.” And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

Yet another round of investigations during the Obama administration, even by a bipartisan commission, would exacerbate this problem. It would also bring little benefit. The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

Jack Goldsmith emerged as a hero among critics of the current Administration’s torture policies, largely as a result of his tenure as head of the Office of Legal Counsel at the Justice Department.  During his brief time there, Goldsmith stood up to David Addington, Alberto Gonzales, and Dick Cheney by withdrawing John Yoo’s infamous 2002 memo, which had redefined torture as physical suffering “equivalent in intensity to the pain accompanying serious physical injury” or mental suffering that had to “result in signifcant psychological harm. . .lasting for months and years.”  Goldsmith deserves significant credit for his courage, and for writing The Terror Presidency, which described in detail his efforts to rein in Addington, Gonzales, and, ultimately, Cheney and Bush.

But he’s dead wrong to suggest that an Obama Administration should forget the past.

The first thing that struck me about Goldsmith’s piece is that, other than the headline (which most likely was written by someone at WaPo, not Goldsmith himself), he bends over backwards not to use the word “torture”: Instead, he uses a number of increasingly ridiculous euphemisms:  “what many view as the Bush administration’s harsh, abusive and illegal interrogation program,” “interrogation and related programs,” “wartime decisions,” “aggressive tactics,” “politically sensitive counterterrorism actions,” “mistakes” and “ways that seemed reasonable at the time but now seem inappropriate.”

Goldsmith apparently can’t bring himself to admit that the Bush Administration actually tortured people.  It’s not hard to recognize the reason for his reluctance:  prior to becoming Assistant Attorney General, Goldsmith held other posts, including in the Office of the General Counsel in the Pentagon.  Despite his decision to withdraw the Yoo memo, he could face legal jeopardy should any future investigation recommend prosecution.  So, as he himself acknowledges, it is in his interest to argue against any investigation.

But there are greater problems with Goldsmith’s arguments than merely self-interest.  The first is his suggestion that “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.”  The irony, of course, is that it was Goldsmith himself who was one of the first to second-guess Addington and Yoo.  His June 14, 2004 decision to withdraw Yoo’s memo was the beginning of the end of the Bush Administration’s unfettered license to do as it saw fit with those it detained.  For Goldsmith now to suggest that others should not do what he already did is at best inconsistent and at worst, smacks of a cover up of other memos or actions that have not yet seen the light of day.

The second is Goldsmith’s attempt to further muddy the waters by suggesting that current investigations by Congress, Justice, and the CIA should also look at Congress’s role and potential illegalities approved under the Clinton Administration.  Although I agree with Goldsmith that Clinton-era officials must be held accountable for approving the rendition of drug offenders, it is a bit disingenuous to suggest that the policies of the Clinton Administration should be put on the same footing as those of its successor.  To assign equal weight to Clinton- and Bush-era policies is not unlike suggesting that someone who smokes pot occasionally should be subjected to the same level of accountability as a drug kingpin.

The third and by far most significant problem with Goldsmith’s piece is his suggestion that any investigation and/or prosecution would lead “many government lawyers to be more risk averse and politically sensitive than ever. . . .The lesson learned by many at the [CIA] is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.”

To begin with, Goldsmith’s argument that government lawyers might be more “risk averse” and “politically sensitive” in the future ignores the fact that Bush-era lawyers (with the exception of Alberto Mora and Goldsmith himself) did what they did because they didn’t want the wrath of Cheney, Addington, and Gonzales brought down on their heads.  They understood that challenging the Administration’s stated determination to shred existing laws prohibiting torture and war crimes would quickly end their careers as government lawyers.

Such fears weren’t unfounded.  In some cases, such as that of Jesselyn Radack, who challenged the some of Administration’s actions during the detention of “American Taliban” John Walker Lindh, the Administration not only pushed people out of government, but tried to blackball them with potential future employers.  In Radack’s case, they even put her on the no-fly list.

To put it another way, part of the problem with what happened over the past eight years is that so many lawyers were exactly what Goldsmith suggests they shouldn’t be: utterly risk averse and politically sensitive.  They didn’t speak out because they feared the consequences.  It’s not like Goldsmith didn’t understand this — he submitted his letter of resignation two days after he decided to withdraw Yoo’s memo and, in all likelihood, before he could be fired.

Goldsmith’s concern about limiting the ability of the CIA to conduct “politically sensitive counterterrorism operations” is equally supect.  Since Nuremberg, “legality” has never been a sufficent defense for committing war crimes and crimes against humanity.  The reality is that senior CIA officials were just as unwilling to stand up to the Administration’s desire to torture those in its custody.  In fact, some in the Agency, including Cofer Black, were eager to “take the gloves off” long before Yoo started drafting memoranda.

And as the recent controversy over the possible appointment of John Brennan to serve as CIA Director demonstrates, even those not directly involved in policy decisions are now viewed as accountable merely for being in the room when some of these decisions were discussed.

In the end, Goldsmith’s arguments simply don’t stand up to closer scrutiny.  They represent little more than a weak apologia for policies that he may slowed but nonetheless did not stop.  In fact, had Goldsmith stayed (and, in fairness, had he not been fired), he would have had to draft a replacement for the memo he withdrew.  Chances are that he would have drafted something not unlike that put forward by Dan Levin, his successor, which stated that the CIA could not be held criminally responsible for actions authorized by the Yoo memo.

It really is a shame that Goldsmith has chosen to tarnish his reputation by trying to protect the very people whom he once so courageously opposed.

Note:  As is usually the case when it comes to questions of the Bush Administration’s torture policies, Jane Mayer’s The Dark Side was indespensible in helping me reconstruct time lines and roles.

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• What’s Missing at DNC: Torture, Guantanamo. . .and Cheney
• Was McCain Tortured? Ask Dick Cheney