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.

Related posts

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• Ambassador for All War Crimes except Our Own
• Powell, Obama, and Torture
• What’s Missing at DNC: Torture, Guantanamo. . .and Cheney
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There’s word today from numerous sources that Colin Powell will go on Meet the Press this Sunday and endorse Barack Obama. The Obama campaign certainly isn’t doing anything to discourage the speculation:

Today Obama spokesperson Linda Douglas said she has no news on the Powell front, but the campaign would obviously love an endorsement.  ”We would welcome the support of somebody with such a distinguished and honorable career as General Powell,” she told me this morning, as Obama’s plane flew to Virginia for a rally.  Obama has previously cited Powell as a potential member of his administration, and the two have been in touch before. “I know they talk from time to time about foreign policy matters,” Douglas said, though she did not know the last time they spoke.  Powell is widely viewed as a thoughtful public servant who carries credibility (and experience) in both parties.

Quite a few folks in the progosphere think Powell endorsing Obama would be a great thing.  I’m not so sure.

Like many others, I had a great deal of respect for Powell before he joined the Bush Administration.  His story was a compelling one and his service was largely distinguished.  In 1996, Powell chose, for a variety of reasons, not to run for President.  Had he done so, he very well might have defeated Clinton.  Instead, he remained on the sidelines until Dubya asked him to serve as Secretary of State.

These days, Powell is often viewed as a tragic figure, largely because of his 2003 presentation at the UN Security Council during the Administration’s push for war with Iraq.  According to Powell, he was duped by the CIA, who convinced Powell that the intelligence behind his presentation was unimpeachable.  Powell then went out and made the case for war.

Thirty months later, Powell told Tim Russert that the CIA had misled him, using intelligence based on discredited sources.   Since then, conventional wisdom has given Powell the benefit of the doubt.  Many commentators regard his statement that he had been misled as the same thing as an apology:

Private warnings cannot cancel out Powell’s hawkish presentation to the U.N., but unlike so many war cheerleaders in politics and the media, he owned up to his mistakes. On national television, Powell called the U.N. address a “blot” on his record.

Fair enough — everyone makes mistakes, and to his credit, Powell has acknowledged (or at least gave the appearance of acknowledging) that he was wrong.  Second chances are the American way, and certainly a Powell endorsement of Obama would represent an open repudiation not only of his friend John McCain, but also of the Administration for whom he worked.

There’s just one small problem.  Powell’s testimony before the UNSC was only the second biggest “blot” on his record.

The biggest was, and is, his tacit support for torture.  If, as the Nuremberg tribunals established, knowledge is complicity, then Colin Powell is guilty of war crimes.  And unlike Iraq, he’s never apologized for his role in helping to shred the Constitution, ignore the Convention against Torture, and trash the Geneva Conventions.

Think I’m exaggerating?  Here’s what Jane Mayer has to say in The Dark Side:

Bush also knew about, and approved of, White House meetings in which his top cabinet members were briefed by the CIA on its plan to use specific “enhanced” interrogation techniques on various high-value detainees.  The meetings were chaired by Rice. . . . The participants were members of the Principals Committee, the five Bush cabinet members  who handled national security matters:  Vice President Cheney, Secretary of State Powell, Secretary of Defense Rumsfeld, CIA Director Tenet, and Attorney General Ashcroft.

Knowing how the Agency had been blamed for ostensible “rogue” actions in the past, Tenet was eager to spread the political risk of undertaking “enhanced interrogations.” However, some members of the group became irritated with Tenet’s insistence upon airing the grim details.  “The CIA already had legal clearance to do these things,” a knowledgable source said, “and so it was pointless for them to keep sharing the details.  No one was going to question their decisions. . . . It’s not as if any of the principals were debating the policy — that was already set.  They wanted to go to the limit that the law required. . . .”

There is no indication. . .that any Bush cabinet members objected to the policy. [emphasis added]

As Mayer acknowledges, Powell did object quite strongly to Bush’s decision to suspend the Geneva Conventions.  But he did not make those concerns public or threaten to resign.  He merely accepted the outcome and soldiered on.  It is only at the time of Abu Ghraib (and the first media reports of John Yoo’s infamous August 2002 “torture memo”), Mayer notes that Powell (along with Rice) began to express qualms:

After reading the torture memo  itself for the first time in the newspapers, Rice and Powell confronted Gonzales together and furiously insisted that there be “no more secret opinions on international and national security law.”  Their righteous anger seemed somewhat undercut by reports that Tenet had provided graphic details of specific coercive interrogations during the Principals Committee meetings while both were present.  And while they directed their frustration at Gonzales, neither had the temerity to confront Cheney, who clearly was the true source of these policies. [emphasis added]

Colin Powell passively assented to torture.  Although he occasionally raised concerns, there is no evidence that he threatened to resign — as Ashcroft and others did over the issue of domestic wiretapping.  He sat in meetings and listened as George Tenet offered graphic descriptions of torture committed by U.S. government officials — and never once objected, other than to complain that Tenet’s statements were unnecessary, given the fact that the President already had authorized torture.

As was the case with his presentation at the United Nations, he accepted what he heard and did as he was told.  Only later, after the Yoo memo and the Abu Ghraib scandal became public, did he begin to object — and then only to ask if there were any other memos he should know about.  At no time did he confront Cheney or Bush, threaten to go public, or quit in protest.

Later on, after he was once again a private citizen, Powell did raise concerns about the Administration’s policies, writing in 2006 to John McCain to express his opposition to proposed rules on Military Commissions:

In his letter to McCain, Powell said the effort to “redefine” the article was “inconsistent” with his previous opposition to the use of torture. “The world,” he wrote, “is beginning to doubt the moral basis of our fight against terrorism.” . . .

Powell declined yesterday to address Bush’s comments. “To say that we want to modify, clarify or redefine Common Article 3 [of the Geneva Conventions], which has not been modified for the 57 years of its history, I think adds to the doubt” about U.S. morality, he said. “Plus I believe that the legitimate concerns that the administration has can be dealt with in other ways.”

The problem, of course, is that there is no public record during Powell’s tenure as Secretary of State of his “previous opposition to the use of torture.”  In his letter to McCain, Powell makes it clear that his objection is not with the underlying policy, but rather the tactics around the military commission.  That is not exactly taking a stand in the face of evil or speaking truth to power.

Silence in the face of evil is assent.  In the eyes of the law, it’s called conspiracy.   At best, Powell’s  actions — both in regard to Iraq and to torture — show a lack of critical thinking.  At worst, they demonstrate profound moral cowardice.

So pardon me if I’m not thrilled at the notion of Powell endorsing Barack Obama.

Related posts

• Prosecuting Those Responsible for War Crimes
• Ambassador for All War Crimes except Our Own
• What’s Missing at DNC: Torture, Guantanamo. . .and Cheney
• State Department Watch: Fed up with Bush?
• Obama, Messaging, and Dean Wormer

Over at TPM Cafe, Jane Mayer, author of The Dark Side, asks the same question that I’ve been asking:

While both McCain and Obama have spoken out against torture, neither has spelled out what he plans to do about holding Bush Administration officials accountable who may have committed or authorized crimes. Understandably, this is a toxic subject, reeking of political payback. But I have personally interviewed CIA officers who have said they refused to partake in the “enhanced interrogation” program because they feared that eventually it would lead to criminal charges. They had seen this happen before, and wanted nothing to do with it, even if it meant in some instances, leaving the CIA. The threat of prosecution clearly acted as a deterrent.

My question is what happens if there is no accountability for America’s first program of state-authorized torture? Does it send a green light to torture again when the next attack takes place? Is it an invitation to other forms of lawlessness by the U.S. Government? But, if top officials of the Bush Administration who were acting in what they believed to be the best interests of the country’s security, are now prosecuted, is that just? Will the public support it? Particularly if Obama is elected, wont this become exhibit A that the Democrats are soft on terrorism, and members of the “Blame-America-First” Club?

. . . [O]n a morning when accountability seems to have evaporated in the financial world - I’d like to know what we do about accountability at the top of our government for authorizing the abuse- and in some cases the killing of U.S.-held prisoners, all of which were criminal until the day before 9/11.

My answer is that we need to prosecute everyone responsible, from Bush down to the CIA agents, military interrogators, and even translators and medical personnel who participated.  It is not political payback, but justice — let us not forget the fundamental principle that came out of Nuremberg:  “I was just following orders” is no excuse for participation in heinous acts.

I suspect that the American people are going to want the Bushies held accountable for everything they’ve done, and that Republicans, who have spent so much time and effort lately running away from their President, will not be in a position to defend him or any of those responsible.

But let’s start from the top, not at the bottom as was done in Abu Ghraib.  We need to take down the twelve individuals who designed and implemented America’s first-ever Presidentially sanctioned torture regime:  Bush, Cheney, Ashcroft, Gonzales, Rumsfeld, Addington, Yoo, Flanigan, Haynes, Chertoff, Tenet, and Rice.  All of them knew what was happening.  All of them signed off on these policies.  All of them should go to jail.

As Mayer notes, accountability has evaporated under this disastrous regime.  We must do everything we can to ensure that it returns, not merely in financial matters, but across the board.

Image via Wikipedia, in the public domain.

Related posts

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• Goldsmith’s Tortured Apologia
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I just finished Jane Mayer’s The Dark Side.  I’ve blogged a bit on it already, and if I have the time, will try to offer some additional observations later this week.  In the meantime, Alan Jacobs over at The American Scene wonders why conservative media outlets have chosen to ignore the book:

[I]f you. . .see the book only as an anthology of information in the public record — newspaper articles, interviews with named figures, books by former Bush administration officials, government documents, and so on — it’s still a convincing demonstration of how certain high-ranking leaders ignored international law and overturned decades (even centuries) of American practices towards enemy combatants.

Yet I have seen almost no response to this book in the conservative press. What’s up with that? The Dark Side has been reviewed in most major newspapers and magazines, but not from any of the conservative organs I’ve seen. Have I missed something? And if not, what are we to make of this silence?

Do conservatives think Mayer’s book is so bad that it’s unworthy of response? (If so, they’re wrong.) Are they just trying to avoid acknowledging uncomfortable truths, and would prefer not to think about what the Bush administration has done in prosecuting its war on terror? Or — perhaps the most interesting possibility — do they agree that Mayer has accurately described the administration’s actions but simply judge those actions very differently, as necessary and even commendable responses to the Islamist threat?

Keep in mind that Jacobs himself is a conservative, so he is not looking for an excuse attack his movement colleagues. If his last thesis is the correct one, then conventional conservativism no longer regards civil liberties and the rule of law as important as national security.

I do find it interesting that many of the conservative voices now arguing that the Paulson-Bernanke bailout plan as an unconscionable expansion of government power didn’t seem to have a problem with government overreach when it involved torture, rendition, and other abuses.  Their acquiesence then helped lay the groundwork for a similar expansion today.

To put it another way, conservatives had no problem with the Administration’s application of the theory of a unitary executive when it involved war powers.  So why are they suddenly surprised that the Administration now wants to take a similar approach toward the economy?

What conservatives have consistently failed to understand is that this is one of the least conservative Presidencies on record.  It has overseen the single greatest expansion of government authority in history — not merely in terms of war powers, but also with the creation of the Department of Homeland Security, the expansion of wiretapping and other forms of intrusion into the lives of average Americans, and the unchecked growth of government spending.  No previous Administration — Republican or Democrat — comes close.

In fact, the only field where government authority retreated was regulation.  From the environment to the economy, this Administration has loosened existing controls over big business.  The end result, of course, is the Great Crash we’re facing today.  And the Bush Administration’s solution?  Extend executive authority in order to bail out its friends.  It is consistent with their past policies of imperial overreach.

The Administration’s actions are both disgraceful and fundamentally unconservative.

Since it’s going to take us decades to clean up this mess, it might be a good idea to slow down a little and make sure that the decisions our leaders make over the next week don’t end up doing more harm than good.

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