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September 04, 2007


Doesn't Goldsmith testify this week? Maybe that would be a partial reason to publish, along with competition with other books, and Congress returning to DC.

He is smart to anticipate the swiftboating and get out ahead of it.

Interesting that although Addington figured prominently in all this, no mention of Scooter.


There has actually NEVER been mention of Scooter on this stuff, beyond perhaps an incidental mention.

Which is interesting when you consider what the functioning of OVP must be like now. Before, one guy was COS and NSA. Now, Cheney has made one guy COS and presumably kept him involved in the legal issues.

I don't buy into Goldsmith's self-annointing for one minute and I think summing it as his PR effort is more on track than the reference to him leading a quiet revolution.

When the "war council" of Gonzales, Addington, Haynes and Yoo were meeting, Goldsmith was a special assistant to Haynes and was helping him to cram torture down the throats of the the military, over the objections of TRULY (as opposed to PR based) principled people like Alberto Mora - like so many feeding tubes at GITMO. Some of the legal justifications used for abrogating treaties were right out of the Goldsmith/Posner "might makes right" playbook on their analysis of international 'nonlaw'

Even after seing what the polcies Goldsmith helped Haynes put in place generated (via the tip of the iceberg Abu Ghraib and the never to be revealed DOD/DOJ stifled investigations into actual MI and CIA etc. activities) Goldsmith has repeatedly come out defending those same policies. I think it was last year that he FINALLY, buried deep in his pro-GITMO op ed, made passing reference to the fact that in the future maybe human trafficking and "we've bought 'em so we may as well torture 'em and see what happens" shouldn't be the sole basis for a lifetime spent in GITMO hell. Still, that was buried deeply and as an aside and afterthought to not derailing the Grand Plan to keep a GITMO approach in place.

With Haynes as a part of the "war council" and with Haynes appearing before and being very "truthy" to the SJC in his hearings for confirmation to the Fourth Circuit - was Goldsmith THEN coming out with his sage opining on the out of control, run amok war council? Nope - he, Thompson (one of the lead defendents in the Arar torture case until Comey got the case dismissed on state secrets grounds), Comey and Philbin were all penning a joint love letter about Haynes to the the SJC. Their "high standards" were pretty much summed up in the expressions that Haynes didn't support torture as much as some other people. By those standards, I guess we need George Bush on the Supreme Court.

He also has the draft memo authorizing transport of protected persons (not even enemy combatants - protected persons) out of their countries for abusive and torture based interrogations on Executive whim that is credited to his side of the ledger. The lists go on, but I really think his book and Tenet's should be a boxed set.

And it is so very brave and courageous of him to get around to testifying when he has a book coming out.

The only thing more despicable than his role in this administration's torture policies is what appears to be a very calculated effort to earn money from a white wash of that role by using a toothless Senate investigation. The Silence of the Revolutionaries that continued through the Gonzales hearings, while America was fleeced and after their own soft landings outside the administration - doesn't exactly earn them a starring role when they finally get around to some later day bleating that will be very judiciously invocative of Executive privilege and state secrets at any point where the four musketeers may look more like the three stooges.

JMO of course.

Goldsmith did not actually

I think sailmaker may have it- preempting the Magazine in anticipation of Goldsmith's SJC testimony. Does anyone know when that might be?

You have alluded here and at TPM that Goldsmith is out for money. The article seems to make this allegation seem incorrect.
"Goldsmith says he is not speaking out for the money; though he received a low six-figure advance for the book, he is, after deducting some minor expenses, donating the advance and any profits to charity."

Though he is clearly conservative and antagonistic to civil liberties on many fronts (as you document), his motivation here does not seem to be to make money.

Sorry if I was less than clear drational. IMO the primary motive is, just like Tenet's was, whitewashing and trying to write the history.

Whatever the motive, though, I find two facts relating to the book sale approach to telling the story repellant. First, that instead of simply coming forward at any of the many junctures that were available and making available to the public the true story of what was happening -- -- a story the public is very entitled to know given that it was generated by public officials operating in a public setting -- -- instead the story is being packaged and sold for a price and the public is being told that if they want to know his version of what happened, they have to "buy in." Secondly, and even more repellant to me, the story of other people's torture is being used to generate money by someone who helped push those policies through.

So whether the money goes to charity or not, it is being partly earned from the victimization that he helped promote and it is being earned by a tale sold instead of by a tale freely and promptly told by a public official doing his public duty.

I think both of those things are ugly. I don't think public service should be a "buy the book if you want to know what we were doing" situation and I don't think "here, let me help put innocent people into horrible distress and horrible people into torture and cover it up UNTIL I get around to writing my own book about it where I can make myself and friends come of at our best.

Some stories shouldn't be sold and some don't "belong" to the seller IMO.

The motivation was to keep the public from ever getting any story but the one sold - that is the problem. And hopefully, given the very wide range of organizations covered by the term "charity" the recipients will be worthwhile. The worth of the eventual recipient of the sales proceeds doesn't really affect the issue of whether the sale of the story was appropriate though, IMO.

I don't care what money Tenet did or didn't make. I care that he was more concerned with selling his story than doing the right thing. That's why I make the comparison to Tenet.

For that matter, in the original, Pre-Loyal Bushie, sense of the word, I'm pretty conservative on many fronts. Someone like Bruce Fein is a conservative. Being a political toady is not being a conservative. "Conservatism" is not a defense to abuse and torture and God forbid that it should ever become that.

mary stuck her tongue out as drational left the room. he he. just joking via-a-vis Mrs. Ashcroft.

I understand your points.
I am just glad he is telling a story, regardless how self serving it might be. He will soon be under oath, and every tidbit in the Rosen article and book can be explored. I think it is a good thing and am grateful he has a memory, considering what hardcore "political toadies" are capable of doing under oath.

The Justice Department, after all, is the branch of government responsible for prosecutions, and its own prosecutors — as well as independent counsels — would be hard pressed to prosecute someone who had relied on the department’s own opinions in good faith. For this reason, the office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.

How is it that legal opinion governing the bounds of executive behavior from an office under the control of the executive can be relied upon?

Just like flying aiprlanes and buildings, no one ever expected a president vice president to abuse the office for so many purposes; to mount an aggressive and extra-constitutional fight in the GWOT, produce a get out of jail free card for the executive branch personnel, and expand presidential vice presidential power to suit his vision of the office.

It is interesting that Goldsmith has opted to make a statement this early in what is likely to be a protracted historical evaluation of where exactly it was that the administration went beginning the day NY exploded in 2001. In a retrospective regarding the Specter as mouthpiece of the administration's wishes in the wiretap matter, it was instructive recently to review this July 2006 Vladek article, as well as to peruse the liveblog of this 'progressive originalism' panel at the APSA convention last week where neocons seem to have received a modicum of some well deserved comeuppance. Likely many planners in the administration would like to see FISC disappear now that foreign2foreign has congress' stamp of approval, but the domestic2domestic portion as yet to appear for reconsideration, in all its permutations, in a putative rewrite in congress looks like it is more difficult to address, and more so in an election cycle like that currently developing; Thursday Rove's associates will present FThompson, after all. There is a quiver of Gonzales former lightening rods, however, that go way beyond the FISC matter, or are equally as important in the sense of restating the identity of the country; more than sufficient to send many protagonists scrambling for cover, for publishers, and other means to avoid more reflections on what was accomplished and at what cost, and to attempt to create early framework through which the historians will do their work. ACLU's FOIA request to FISC last week like, and the Scotus amicus brief filed by Hamdan in the somewhat related Odah and Boumediene habeas appeals also seem critical for the senior executive producers in the minority Republican party who just now might be clueless as to what issues might be accessible in what already is looking like a bleak campaign for their party.

Neil - Actually, somebody DID anticipate just this precise behavior out of the executive, which includes both the president and vice-president. It was our founding fathers and it was exactly why they put such an agressive impeachment provision in the Constitution. The Federalist Papers, and other concurrent history at the time make this crystal clear. What they didn't anticipate was a Congress so feckless, self-involved and co-opted that it refused to exercise it's duty to protect it's own seperate powers AND the Constitution.

Yoo was a “godsend” to a White House nervous about war-crimes prosecutions, Goldsmith writes in his book, because his opinions reassured the White House that no official who relied on them could be prosecuted after the fact.

This sure looks like an argument being put forth by the less radical highly respected jurist about the less-respected more radical jurists' legal opinions, and the consequences for those who took his legal advice.



I do not understand why impeachment is off the table. If anything, you'd think Congress would want to handle the issue of extra-Constitutional actions taken by the President rather than leave it unaddressed or worse, addressed by German jurisprudence or The Hague.

IANAL. Can anyone remind me if I am righ in thinking that the Gonzo Gonzo account of the visit was one of the 'Leahy five' contradictions with potential for legal action? (I am sneaking a peak during work, so can't research it myself)

Anyone willing to speculate if once Goldsmith testifies under oath about the Ashcroft incident, Gonzo Gonzo will be indictable for perjury. There are now two eyewitness who contradict his account.

BSRH - The hospital visit is not mentioned directly in Leahy's August 16 letter to AGIG Glen Fine, but is part and parcel of the second area of concern Leahy layed out regarding Gonzales' testimony that there was no disagreement within the Administration on the validity of the program.

Neil, there's any number of reasons why impeachment is "off the table" in this Congress. Let's run through a few of the most obvious (I'm sure you can think of many more if you put your mind to it): 1) even if the dems had any courage, they don't have filibuster-proof majorities in either house or senate; 2) consensus reality in both houses dictates that it's far worse to be seen as a "wild-eyed radical" than to uphold the laws and Constitution; and 3) most if not all of 'em have bought the admin's GWOT line anyway.

Is it possible that the restraint exercised at least in small part by the congress is the track record of the executive ? While openly examining the wreckage of recent years what would otherwise suppose the secret state of public affairs would be other than merely waiting to excuse any conduct related to the pursuit of its own assumption of extralegal activities ?

Thanks Bmaz for your readiness to answer IANAL questions.

Naargh - There is not one ounce of credibility or honor among any of those theories. They are simply to self-centered and chickenshit to do what they are SWORN to do. End. Of. Story.

I agree bmaz. Those reasons are decidedly not honorable. Then again, Naargh did not assert they were honorable, just that they were reasons.

Oh, I did not mean to impugn Naargh; sorry if it came out that way. I also did not read that necessarily as Naargh's position. Like the name quite a bit too...

Thanks bmaz & neil. Isn't that what this whole sorry business comes down to though? A total lack of honor, for whatever reason, among that particular pack o' thieves? Maybe Ayn Rand was right (choke); power becomes its own justification no matter which side of whatever fence you're on.

Lack of honor explains it better for me, because "pursuit of power" just baffles me. Too many are involved in this cabal to all be able to share "power." Afterall there is only one Decider (well one public one), so how do the others in this cabal enjoy power vicariously? I would predict that power pursuits of the current type will lead to infighting and bloodshed within their group.

Why do away with the bloodless transfers of power that the US Constitution provides in our democratic elections. Ask some European royals, Russian Tsars, or even "Julius" how they liked the transfer of power in their day.

Alternatively, I wonder whether most of the players in this cabal are quietly reaping money (instead of pure power)and therefore cooperate readily. The sheer amount of nonbid outsourcing put in place under this regime (within the military, CIA and NSA) has to be a move to ensure "power" endures (in the form of military, economic and civillian intelligence) no matter which political party subsequently occupies the WH.

Jay Bybee was rewarded with a federal judge's seat on the 9th District Court. Bybee is a Mitt Romney, corporate-loving Mormon who went to BYU law school. He is the one who determined that the Genevea Conventions didn't apply to enemy combatants in terms of being tortured. Those in the senate that approved him deserve such similar treatment. You know, the Jesus do unto others.

Maybe I missed it in this article, but why doesn't Goldsmith say that Comey was in the room? Goldsmith talks about Comey being the AG, and that Card & Gonzales came to see Ashcroft in the hospital room. But I guess we are to infer the Comey was in the room too?

dead last - Bybee is indeed a giant flaming turd; trust me, if I hadn't seen enough of him from the Administration, I practice in the 9th Circuit. He is not good on anyhting. However, it appears that Yoo, maybe Addinton too, wrote most of the bad opinions that Bybee signed off on. Bybee signed the odious documents so he certainly is every bit as resonsible as anybody.

one thing i really would like to know:

how is it that goldsmith happened to get a tenured professorship at harvard law?


who paid for it.

why are radical lawyers ("sovereigntists") masquerading as conservative lawyers getting life-long slots at top university law schools.

yoo is now ensconced at stanford.

how did that happen?

who paid for that?

putting these guys where they are is as bad as putting roberts and scalia on the supreme court.

and, lawyers aside, i learn recently that johns hopkins school of strategic and international studies (?) created a special "middle east institute" funded by a wealthy israeli businessman.

wtf is going on

in this country's academic institutions?

can you just buy your way in?

if so, earned and inherited corporate wealth is going to

promote sophistry and

skew learning and understanding

far into our future.

Yoo is at Boalt Hall at Cal Berkeley as opposed to Stanford. I am not sure how the exact hiring process on these two went; it is different for every school and also depends on whether the professor is joining as regular faculty or as a designated chair, in which case outside funding sources may indeed be in play. Yoo is regular faculty, so I doubt seriously anybody bought and paid for his position. Believe it or not, these people are often considered plumb gets by law schools. Goldsmith is the Henry L. Shattuck chair at Harvard Law, it is unclear whether there is a foundation that is involved in the funding and hiring of that position or not.

Comey's partial story of the Gonzales Card Ashcroft hospital visit is part of the tale in the Goldsmith autobiographical gloss. One OLC senior attorney has a predictably elucidative post at a favorite academic site of his there today; he seems to have received a prepublication copy of the Goldsmith tome. Discretly for years he has alluded to the notably salubrious shifts that began with Goldsmith's tenure at OLC, much of which G's autobiog note seems to elaborate.

drational - I can understand that you want to hear what he has to say and are pleased someone maybe tried to do something at some point in time. I have strong feelings on the topic, but they aren't directed at you.

Naargh - Rand's observation isn't that far from Goldsmith's "scholarly" treatment of international law - if a country is strong enough, it can just do whatever is expedient to your political determinations, not what's legal.


I have to admit, I get a little edgey when someone like Rosen, despite having been a "classmate" of Goldsmith, can just put up as stenographic "truth":

During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in “justifying torture.” “It was a nightmare,” Goldsmith told me. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.”

without ever even mentioning the Hayne's DOD policies, the abuse and torture allowed under the GOLDSMITH "revocation" of the Bybee memo, and without ever even bringing up the pretty infamous draft referred to as the "Goldsmith Memo."


Since then, we’ve learned that Mr. Gonzales has been a major architect of this policy. On March 19, 2004, at his request, the Justice Department provided him with a draft memorandum – the so-called “Goldsmith Memorandum” – to allow the C.I.A. to ship certain persons out of Iraq. Article 49 of the Fourth Geneva Convention specifically states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Violations of Article 49 constitute “grave breaches” of the Convention and therefore qualify as “war crimes” under federal law.

In spite of the clear, unequivocal language of this provision, the Justice Department ruled that Article 49 does not in fact prohibit, for the purpose of “facilitating interrogation,” the temporary removal from Iraq of “protected persons” who have not been accused of a crime.

In October 2004, the Washington Post reported that one intelligence official familiar with the operation said the C.I.A. used the memo “as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last six months. The agency has concealed the detainees from the International Committee of the Red Cross and other authorities, the official said.”

The legal analysis in the Goldsmith Memorandum is an embarrassment. Yet it appears to have been the legal justification for the C.I.A. to commit war crimes. As with the Bybee Memorandum, Mr. Gonzales has categorically refused to answer the Committee’s questions about his involvement.

emphasis added.

How telling, too, is it that basically Goldsmith is concerned - not over the violations of law and the degredation of this nation by making it a solicitor of crime - but by the fact that the President didn't get enough political will behind him for his torture.

He keeps speaking out of both sides of his mouth -on the one hand decrying how "extreme" the position were, but that they would have been ok with more political backing.

After noting that Lincoln and Roosevelt were Goldsmiths book heroes, the article states that:

Both of them, as Arthur Schlesinger noted in his essay “War and the Constitution,” “were lawyers who, while duly respecting their profession, regarded law as secondary to political leadership.” In Goldsmith’s view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors.

Not that being evil and immoral and lawbreaking and lying made him a "less effective" leader, but that not being a good enough politician made him less effective. Whatever - I think for the ability to create coherent thought, it's a failing enterprise to look to any of the loyal Bushies or their chroniclers, who seem to get that job by virtue of being willing stenographers who can easily suspend credulity.

To close out an already overly long comment, the issue of OLC being used as a pre-pardon office was dealt with long ago by Marty Lederman at Jack Balkin's blog. But here is where Goldsmith is right. Once better politicians than Bush got involved - Congress was able to and did do for him what even the toadies at OLC and DOJ could not.

See - even in their opinions about the depths of depravity to which the Administration could sink in its actions, as long as its actions were turned against an "unlawful enemy combatant" even those opinions couldn't do much for the "oops" factor. IOW, even those opinions didn't insulate (if an OLC opinion can anymore be said to have the imprimateur to grant absolution) from criminal liabilty the people who inflicted their depravity on someone who was only "mistaken for" an unlawful enemy combatant.

If the person survived and ever got into a court, there was nothing about the OLC opinion that would insulate from criminal liability if it was determined the person was NOT an unlawful enemy combatant. Of course, with people like Comey and Ashcroft and Gonzales and Thompson etc. in office, it could be relied upon that no criminal prosecution would take place - no matter what the circumstances - and that even in civilian cases they would rush to insure the invocation of State Secrets. But what about when those kinds of "prosecutors" were gone? Some of the crimes have long SOLs.

Well, enter the compliant Congress. Republicans and Democrats like Sherrod Brown rushed to pass the MCA. The MCA, along with denying habeas (only one small portion of what is wrong with the MCA) does something else quite helpful to those who tortured and abused innocent civlians at GITMO and Camp Cropper and elsewhere.

See, in Hamdan what went up to the Sup Ct was the validity of the proposed commissions for actual trials. While the Sup Ct found those to be horrifically inadequate, the Sup Ct did not have before it that "Combatant Status Review Tribunals" which were operated with far less concerns for evidence, truth, legality, law, etc. than the commissions that the Sup Ct did review.

Under those CSRTs it is absolutely clear that all kinds of people were designated "enemy combatants" completely without basis and all of them would have rights to recover and the right to believe that, if America were a nation of laws, that the perpetrators of the crimes against them would be punished.

Ok - we've seen the Rumsfeld/Mattis concept of punishment is to commute all sentences, but still - with men and women of honor at DOJ or in the miltary, there could be legal proceedings. So what Congress did, in addition to denying habeas to those still held - for those held and those who had managed to finally secure a release, Congress provided that:

) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

So Congress said that, not only are we going to authorize the unconscionable for "unlawful" combatants, but we are going to make the completely and wholly inadequate and politically constructed CSRTs "dispositive" on the issue of whether or not someone was an "unlawful enemy combatant."

So whether they get habeas and an order for release or not, we've now legislatively taken away their ability to pursue their treatment because it is now dispositive that they are an enemy combatant, whether they are one or not. Actually, that kind of really abhorrent legislation works at times.

Anyway - Goldsmith is right - the President needed to politicize his torture and abuse better, but hey, eventually he got Vanna's vowel and Congress bent over backwards to provide him all OLC gave him and even much more. Now Bush is working on following Goldsmith's recommendations to get the telecoms legislatively protected from their crimes too.

thanks, mary

i read your posts avidly.

i get a sense from them of no bull-shit,

no compromise with unfair treatment.

i like that -

a lot.

by the way,

i should add that in my view, one of goldsmith's mistakes is that he mixes law and politics together,

to the detriment of both.

sure, in my opinion, the supreme court is first a political body and secondly a judicial body.

but young, career-serving lawyers who try to sync their views with a prez can be a real case of heartburn for the nation and/or the prez - as goldsmith and his buddy yoo have proved to be.

Bravo, Mary; the left blogosphere's coopting of James Comey et al always struck me as a bit desperate ....

bmaz -

thanks for the correction.

being an eastern woodland aborigine

i made a wrong assumption about the lay of the land in die vast vest -

that stanford was southern cal

or did i assume southern cal was stanford?

any way,

know i know.

thanks again.

Orion - I will be honest. I would be a lot happier if it were Stanford; having the torture happy, right wingnut jerk Yoo in Berkeley, hallowed ground for hippies at heart like me, makes me shudder. Big money private Stanford would make a lot more sense. Now you have injected Southern Cal into the mix. The only good thing about Southern Cal is that habitually beat Big Ten Teams like the ole Maize and blue of Michigan (but then who doesn't lately) and Ohio State. Us hayseeds in the desert are just as cranky about the California schools as you are....

Mary- thank-you!!

Thanks EW and Mary.

With respect to the MCA and other shredding of the US Constitution, the custodians of the Holocaust Museum in DC and Dachau and Auschwitz are failing us if they cannot be more vocal about the end result of this type of "might makes right" political atmosphere.

Committees and individuals from these memorial sites should be on their bullhorns every day (especially in Fox News' studios) speaking for humanity. And they would be standing on a moral high ground that BushCo has consistently failed to occupy.

Here are a few items about Haynes from way back, and there, another few congress members remarks; and Kagro X has written at this blog before concerning the nomination process which opened discussion at the time of the Haynes nomination to a judgeship. Perhaps part of congress' roadmap in calling Goldsmith is to provide expansion of some of the inchoate sections in prior airings of related concerns such as the links provided here. There is good material at the watchdog entities, as well, if my notes from the past few years are indicators.

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