Jack Goldsmith has an Op-Ed in today's Washington Post entitled "No New Torture Probes" in which he argues that the Obama administration should not call for an investigation by Congress or the Justice Department into the Bush administration's harsh, abusive and illegal interrogation program. I disagree. I know that President-elect Obama wants to "look forward" rather than get mired in past atrocities, but self-serving (Goldsmith worked at the Justice Department from 2003 to 2004 on issues that probably would be subject to new investigations)positions like Goldsmith's lack another Obama objective: accountability. http://www.washingtonpost.com/...
While I was punished unmercifully for objecting to torture (placed under criminal investigation, referred to the state bars in which I'm licensed, and put on the "No-Fly List"), Professor Goldsmith argues that new probes into torture
would bring little benefit, and they would further weaken the Justice Department and the CIA in ways that would compromise their security.
Really? The reason that the Justice Department is the beleagured agency it has become is due to unaccountability for policies including torture, rendition, warrantless wiretapping, and a host of other unconstitutional programs.
Goldsmith further argues the tired trope that
[s]econd-guessing lawyers' wartime decisions under threat of criminal and ethical sanctions . . .[will cause] lawyers to become excessively cautions in giving advice and will substitute predictions of political palatability for careful legal judgment.
This is absurd.
As to the first issue, Goldsmith argues that the probes already underway are sufficient. But classified sessions by congressional intelligence committes and secret investigations by the CIA inspector general and the Justice Department's Office of Professional Responsibility (the last of which has acted as an agent of government malfeasance, rather than as a watchdog over it) are opaque at best and shams at worst.
As to his second point, about the danger of lawyers becoming "risk-adverse" (a terms he uses twice), lawyers should think twice about the ethical propriety of their decision-making, particularly when it's on the borderline of being criminal and unethical.
As a counterpoint to Goldsmith's arguments, the Justice Department's Office of Inspector General and Office of Professional Responsibility spent more than $100,000 referring me to the state bars in which I'm licensed as an attorney for rendering ethics advice in the case of "American Taliban" John Walker Lindh (to not interrogate him without counsel), while attorneys David Addington, John Yoo, Kyle Sampson, and Monica Goodling, among others, have not been similarly referred to their respective bars for conduct that was clearly illegal and unethical. Instead, like Goldsmith, they've gotten tenure at elite law schools or laterally arabasqued into other cushy positions.
Goldsmith argues that [
[t]he people in government who made mistakes . . . have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses.
You've got to be kidding me. Try being labeled a "traitor," "turncoat" and "terrorist sympathizer" in the New York Times by anonymous government officials, getting placed on a terror watch list, and having to take out a second mortgage on your home to pay your legal bills. Getting tenure and partnership offers--indeed making a career off your misdeeds--is not exactly punishment.
Goldsmith's suggestions are self-serving, indefensible . . . and completely devoid of accountability.