Jack Goldsmith: Rule of Law Is a Threat to National Security

Hard to believe that the same man who resigned from the Office of Legal Counsel after nine months of battling the Bush administration over atrociously reasoned legal justifications for torture and limitless presidential power is now arguing that the incoming president should abandon any plans to prosecute Bush, Cheney, Addington, et al. for war crimes and other gross violations of domestic and international law.

Goldsmith’s reasoning? Congress is investigating the Bush White House’s illegal activities, and for “political” reasons Obama has to let those investigations continue (can’t look like we’re totally ignoring lawbreaking, you know) — but actual trials for war crimes and unconstitutional abuses of presidential power would have a chilling effect on the intelligence community’s willingness to break laws in the future in order to protect Americans from terrorism [emphasis mine]:

To begin with, all of the relevant facts — who approved what, what the legal opinions say and what actually happened — are well known inside the government. The interrogation and related programs have been extensively scrutinized in public sessions of Congress, in many classified sessions by congressional intelligence committees, in several investigations by the CIA inspector general and the Justice Department’s Office of Professional Responsibility and by the special prosecutor investigating the destruction of interrogation tapes.

These investigations were politically necessary, and the Obama administration should let them continue. When they are complete, the administration should disclose the facts and documents (including legal opinions) that can be made public without jeopardizing national security. …

But we should also recognize the costs of these investigations. 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.

[…]The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers’ clients, especially in the CIA. In response to the many investigations, CIA officials are “lawyered up” and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one’s memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.


… 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.

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.

Words fail me. Fortunately, Glenn Greenwald has some choice ones:

Walk into any criminal courtroom in the country where a convicted defendant is pleading for light or no punishment and that’s exactly what you’ll hear:  “I’ve already been punished enough, Your Honor.  My reputation has been ruined, my health is suffering, I lost my job.  What more do you want to do to me?”

But — when it comes to common criminals — our political class rejects those pleas, turns a resolutely deaf ear to them.  For those people, we continue to erect ever-harsher criminal sanctions, mandatory minimum sentencing schemes, and an increasingly merciless criminal justice system.  As a result, we imprison more of our population than any other country on the planet.  Even people who commit petty, harmless offenses — corner drug dealing with other adults or even mere drug possession  — have the full weight of the criminal justice system smashing down upon them, thanks to our “tough-on-crime” political class.  They go to prison, are separated from their families, are put into cages, permanently labeled “felons.”

Yet the same political establishment that has created and continues to fuel this incomparably merciless justice system has made themselves exempt from the rule of law.  When they flagrantly violate even the most consequential criminal prohibitions — laws criminalizing torture, spying on American citizens, obstruction of justice — it’s only the shrill rabble (the “incendiary Democratic base”) who would possibly believe that they should be held accountable and investigated, let alone prosecuted and imprisoned.  All of the upstanding, responsible, Serious people understand that these aren’t real “crimes.”   These are merely acts which “critics call illegal” — or what Goldsmith calls “mistakes” or “act[ions] that seemed reasonable at the time but now seem inappropriate.”

It’s understandable, perhaps — or at least predictable — that government officials would seek to minimize the seriousness of policies and decisions in which they were complicit. That’s what the journalism profession is for — to tell the truth when government officials and other established authorities are trying to ignore or deny the truth. But instead, the media accepts the lies and distortions at face value, and actually serves as co-author of the corrupt and self-serving story lines offered up by the government.

The media calls this being “objective” and “balanced.” But there is such a thing as being objective to the point where you’re not telling the truth anymore. At that point, you start writing sentences like the one Andrew Sullivan quoted, from the AP [italic is Andrew’s]:

Obama’s advisers had grown increasingly concerned in recent days over online blogs that accused Brennan of condoning harsh interrogation tactics on terror suspects, including waterboarding, which critics consider torture.”

As Andrew says, “… no sane person with any knowledge of the subject disputes the fact that waterboarding is and always has been torture. So why cannot the AP tell the truth?”

Glenn has tons more examples, and they all “underscore a crucial fact:

a major reason why the Bush administration was able to break numerous laws in general, and subject detainees to illegal torture specifically, is because the media immediately mimicked the Orwellian methods adopted by the administration to speak about and obfuscate these matters.  Objective propositions that were never in dispute and cannot be reasonably disputed were denied by the Bush administration, and — for that reason alone (one side says it’s true) — the media immediately depicted these objective facts as subject to reasonable dispute.

Hence:  “war crimes” were transformed into “policy disputes” between hawkish defenders of the country and shrill, soft-on-terror liberals.  “Torture” became “enhanced interrogation techniques which critics call torture.”  And, most of all, flagrant lawbreaking — doing X when the law says:  “X is a felony” — became acting “pursuant to robust theories of executive power” or “expansive interpretations of statutes and treaties” or, at worst, “in circumvention of legal frameworks.”

It’s also because of lawyers like John Yoo, of course — who, Scott Horton reports, may soon be getting his just desserts in court.

Unfortunately, making eight years of horrendous wrongs right again will not be as easy as prosecuting the wrongdoers in the Bush administration. Possible thousands of people who worked under and for Bush who designed, signed off on, carried out, or kept their mouths shut about the use of torture and the perversion of law to justify war crimes, are now cowering in foxholes, keeping their heads down, hoping no one notices them. But crammed in with them in those foxholes — if you’ll pardon the mixed metaphor — are a whole lot of strange bedfellows. Like, for instance, Saddam Hussein and the government of Iran.

It’s a pretty strange kind of national security when the same president who preemptively invaded Iraq and rattles sabers against Iran in the name of “fighting terror” torpedoes a defense authorization bill because it contains a provision that would allow American servicemen to sue foreign governments that subjected them to torture. And the president cannot let that happen because if Americans tortured by our enemies sue the states that sponsored that torture, it would open the United States to lawsuits from citizens of those same states who were tortured by our government. Or when the top lawyer at Guantanamo cannot get the word “yes” out of his mouth when asked whether it would be a violation of international law for Iran to waterboard a U.S. pilot in its custody. How could he tell Congress that it would be unlawful for Iran to waterboard a captured U.S. pilot when the highest-ranking attorney in the State Department can’t even give a straight answer when asked whether waterboarding is torture and doesn’t know if detainees in U.S. custody are subjected to waterboarding?

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