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Jack L. Goldsmith
In
October 2003 Jack Goldsmith, a legal scholar with sterling conservative
credentials, was hired to head the Justice Department’s Office of Legal
Counsel, which advises the president and the attorney general about the
legality of presidential actions. As he was briefed on counter
terrorism measures the Bush administration had adopted in the wake of
9/11, Mr. Goldsmith says he was alarmed to discover that many of those
policies “rested on severely damaged legal foundations,†that the legal
opinions that supported these counter terrorism operations were, in his
view, “sloppily reasoned, overboard, and incautious in asserting
extraordinary constitutional authorities on behalf of the president.â€
Nonetheless, Goldsmith, who replaced Bybee, signed off on an equally damaging and illegal document in March of 2004.
At
the request of the CIA, the Justice Department drafted a confidential
memo that authorizes the agency to transfer detainees out of Iraq for
interrogation -- a practice that international legal specialists say
contravenes the Geneva Conventions, according to The Washington Post, which was able to obtain and publish a copy of the draft in June of 2004. Â
One
intelligence official familiar with the operation said the CIA has used
the March draft 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
draft opinion, written by the Justice Department's Office of Legal
Counsel, Jack L. Goldsmith, and dated March 19, 2004, refers to both
Iraqi citizens and foreigners in Iraq, who the memo says are protected
by the treaty. It permits the CIA to take Iraqis out of the country to
be interrogated for a "brief but not indefinite period." It also says
the CIA can permanently remove persons deemed to be "illegal aliens"
under "local immigration law."
Some
specialists in international law say the opinion amounts to a
reinterpretation of one of the most basic rights of Article 49 of the
Fourth Geneva Convention, which protects civilians during wartime and
occupation, including insurgents who were not part of Iraq's military.
The
treaty prohibits the "[i]ndividual or mass forcible transfers, as well
as deportations of protected persons from occupied territory . . .
regardless of their motive."
The
1949 treaty notes that a violation of this particular provision
constitutes a "grave breach" of the accord, and thus a "war crime"
under U.S. federal law, according to a footnote in the Justice
Department draft. "For these reasons," the footnote reads, "we
recommend that any contemplated relocation of 'protected persons' from
Iraq to facilitate interrogation be carefully evaluated for compliance
with Article 49 on a case by case basis." It says that even persons
removed from Iraq retain the treaty's protections, which would include
humane treatment and access to international monitors.
During
the war in Afghanistan, the administration ruled that al Qaeda fighters
were not considered "protected persons" under the convention. Many of
them were transferred out of the country to the naval base in
Guantanamo Bay, Cuba, and elsewhere for interrogations. By contrast,
the U.S. government deems former members of Saddam Hussein's Baath
Party and military, as well as insurgents and other civilians in Iraq,
to be protected by the Geneva Conventions.
International
law experts contacted for this article described the legal reasoning
contained in the Justice Department memo as unconventional and
disturbing.
"The
overall thrust of the Convention is to keep from moving people out of
the country and out of the protection of the Convention," said former
senior military attorney Scott Silliman, executive director of Duke
University's Center on Law, Ethics and National Security. "The
memorandum seeks to create a legal regime justifying conduct that the
international community clearly considers in violation of international
law and the Convention." Silliman reviewed the document at The Post's
request.
The
CIA, Justice Department and the author of the draft opinion, Jack L.
Goldsmith, former director of the Office of Legal Counsel, declined to
comment for this article.
CIA
officials have not disclosed the identities or locations of its Iraq
detainees to congressional oversight committees, the Defense Department
or CIA investigators who are reviewing detention policy, according to
two informed U.S. government officials and a confidential e-mail on the
subject shown to The Washington Post.
White
House officials disputed the notion that Goldsmith's interpretation of
the treaty was unusual, although they did not explain why. "The Geneva
Conventions are applicable to the conflict in Iraq, and our policy is
to comply with the Geneva Conventions," White House spokesman Sean
McCormick said.
The
Office of Legal Counsel also wrote the Aug. 1, 2002, memo on torture
that advised the CIA and White House that torturing al Qaeda terrorists
in captivity abroad "may be justified," and that international laws
against torture "may be unconstitutional if applied to interrogations"
conducted in the war on terrorism. President Bush's aides repudiated
that memo once it became public this June.[2004]
The Office of Legal Counsel writes legal opinions considered binding on federal agencies and departments.Â
 Mr.
Goldsmith is to be commended for bucking Dick Cheney on several
issues. His concerns led to his rescinding the Bybee and Yoo memos
just nine months after accepting the position as head of the Justice
Department. The day after he rescinded the memos, he resigned. Â
Since
that time Goldsmith, now a Harvard Law professor, has written several
articles and his book, all scathing condemnations of the Bush
administration's practices regarding torture of prisoners. Â
As
Mr. Goldsmith recounts in his chilling new book, “The Terror
Presidency,†he and his Justice Department colleagues (in consultation
with lawyers from the State Department, the Defense Department, the C.I.A. and the National Security Council)
reached a consensus in 2003 that the Fourth Geneva Convention (which
governs the duties of an occupying power and the treatment of
civilians) affords protection to all Iraqis, including those who are
terrorists.
When
he delivered this decision to the White House, he recalls, Mr.
Addington exploded: “ ‘The president has already decided that
terrorists do not receive Geneva Convention protections,’ he barked.
‘You cannot question his decision.’ â€
The
portrait of the Bush administration that Mr. Goldsmith — who resigned
from the Office of Legal Counsel in June 2004, only nine months after
assuming the post — draws in this book is a devastating one.
It
is a portrait of a highly insular White House obsessively focused on
expanding presidential power and loathe to consult with Congress, a
White House that frequently made up its mind about a course of action
before consulting with experts, a White House that sidelined Congress
in its policymaking and willfully pursued a “go-it-alone approachâ€
based on “minimal deliberation, unilateral action, and legalistic
defense.â€
Similar
portraits, of course, have been drawn by reporters and other former
administration insiders, but Mr. Goldsmith’s account stands out by
virtue that he was privy to internal White House debates about
explosive matters like secret surveillance, coercive interrogation and
the detention and trial of enemy combatants.
It
is also distinguished by Mr. Goldsmith’s writing from the point of view
of a conservative who shared many of the Bush White House’s objectives
(and who was an ideological ally of John Yoo, one of the main
architects of the administration’s legal responses to a post-9/11 world
and the author of some of the very opinions Mr. Goldsmith would later
call into question).
But
he found himself alarmed by the Bush White House’s obsession with
expanding presidential power, its arrogant unilateralism and its
willingness to use what he regarded as careless and overly expansive
legal arguments in an effort to buttress its policies.
Mr. Goldsmith does not go into detail here about his role on that March 2004 night when Alberto Gonzales, then White House legal counsel, and the White House chief of staff, Andrew Card, went to the hospital to visit an ailing Attorney General John Ashcroft to try to pressure him into approving a secret program (which was about
to expire) over objections from Mr. Goldsmith and Deputy Attorney
General James B. Comey.
But
he does provide a visceral sense of the tensions within the
administration, with Mr. Ashcroft and members of the Justice Department
often at odds with Mr. Gonzales and the White House, and the hard-line,
hard-driving Mr. Addington, backed with the power of the vice
president’s office, usually prevailing in the legal policy meetings
held in Mr. Gonzales’s office.
Noting
that “the president and the vice president always made clear that a
central administration priority was to maintain and expand the
president’s formal legal powers,†Mr. Goldsmith says that lawyers soon
realized that they “could gain traction for a particular course of
action — usually, going it alone — by arguing that alternative
proposals would diminish the president’s power.â€
Working
with Congress on matters like detention and military commissions, Mr.
Goldsmith says, would have helped the administration establish “a solid
legal foundation†for the war on terrorism while diminishing “many
complaints about legitimacy.†And yet the White House took working with
Congress “off the table,†which meant that “a lot of sensible policy
options†simply “were not available.â€
Mr.
Goldsmith has successfully distanced himself from the current
investigation looking into the legality of the so-called "torture
memos," primarily because of his book and other equally scathing
articles against the administration's practices post 9/11.
http:Some information provided from the following sources:
https://www.nytimes.com/2007/09/11/books/11kaku.html
https://www.usembassy.it/pdf/other/RL32395.pdf
https://www.washingtonpost.com/wp-dyn/articles/A57363-2004Oct23.html