BUSH WAR CRIMINALS? One Who Worked With 'Em, Jack Goldsmith, Says We Don't Need Torture Inquiries!

Is Goldsmith campaigning on behalf of his former U.S. Justice
Department operatives, the ones who are most liable to be indicted for
crimes against humanity?  Or what?


"Jack Goldsmith moved to Boston to teach law at Harvard, where he was
ironically greeted with protests because of his association with the
Bush Administration's torture policies."  -- Mayer, Jane.  "The Dark
Side."  Doubleday, 2008.

-------------------------
"No New Torture Probes"

By Jack Goldsmith
Wednesday, November 26, 2008; A13


There has been much speculation about how the Obama administration
will deal with what many view as the Bush administration's harsh,
abusive and illegal interrogation program. Some have called for an
investigation by Congress or the Justice Department, possibly leading
to criminal sanctions. Others think such investigations are infeasible
or would smack of political retribution, proposing instead that a
bipartisan commission look into the matter.

These are all 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. (I worked at the Justice Department
from 2003 to 2004 on issues that probably would be subject to new
investigations, so readers should consider my views accordingly.)

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. To be credible, the disclosures should include information
on the assenting role of congressional leadership as well as Clinton-
era actions and legal opinions on issues such as rendition and
targeted killing that were precursors to what the Bush administration
did.

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.

This was a serious problem before Sept. 11, and many believe it led to
governmental structures and attitudes that precluded detection of the
Sept. 11 plot. "I know from my work on this committee for the past 10
years that lawyers at CIA sometimes have displayed a risk aversion in
the advice they give their clients," Democratic Sen. Bob Graham said
during 2002 Senate intelligence committee hearings. Graham was typical
then in complaining about "cautious lawyering" and in noting that "we
are not living in times in which lawyers can say no to an operation
just to play it safe."

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.

And worse, it has spooked the intelligence community. 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.

The best way for the Obama administration to establish a record of
what happened under President Bush without further debilitating our
national security system is simply to let the many current
investigations run their course.


(Jack Goldsmith, a Harvard Law School professor, is the author of "The
Terror Presidency" and a member of the Hoover Institution Task Force
on National Security and Law. From 2003 to 2004, he served as
assistant attorney general in the Justice Department's Office of Legal
Counsel.)

http://www.washingtonpost.com/wp-dyn/content/article/2008/11/25/AR2008112501897.html
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