Jack Goldsmith's disillusionment

John Podesta, Bill Clinton's former chief of staff, has an op-ed calling on Obama to release the legal memos setting forth the administration's rationale and guidelines for targeted killings. Good for him. As he notes, he has standing to weigh the competing imperatives of national security and public disclosure -- and with respect to the administration's legal deliberations, he comes down firmly on the side of disclosure.

I am more interested, though,  in the thinking of someone with even more standing to address the legal issues arising from the administration's covert operations: Jack Goldsmith, the short-term head of George W. Bush's Office of Legal Counsel who countermanded the insane torture memos that authorized the Bush administration's torture regime.  There's a link to a Feb. 5 Goldsmith op-ed at the bottom of Podesta's. Goldsmith's latest tells a sad story of disillusionment when compared with Goldsmith's 2009 writings.

Goldsmith takes a step back to consider not just the need for disclosure regarding the drone memos but the need to develop a new legal framework for "secret warfare":

The strange lies of Dick Cheney

Dick Cheney's extended attack on the Obama Administration in his 8/30 interview with Chris Wallace, focused chiefly on the Justice Dept. investigation into whether some CIA interrogators violated the limits set on interrogation techniques by the depraved torture memos, is full of lies. The repeated master lie, providing the theme and structure of Cheney's attack, is easily debunked. Here are three iterations:

We had the president of the United States, President Obama, tell us a few months ago there wouldn't be any investigation like this, that there would not be any look back at CIA personnel who were carrying out the policies of the prior administration. Now they get a little heat from the left wing of the Democratic Party, and they're reversing course on that.

Instead, they're out there now threatening to disbar the lawyers who gave us the legal opinions, threatening contrary to what the president originally said. They're going to go out and investigate the CIA personnel who carried out those investigations.

But my concern is that the damage that will be done by the President of the United States going back on his word, his promise about investigations of CIA personnel who have carried those policies, is seriously going to undermine the moral, if you will, of our folks out at the agency.

Reality check: when the Obama administration released the torture memos on April 16, both Obama and Holder made it very clear that they intended to rule out prosecuting CIA personnel who relied on Justice Department guidance when carrying out interrogations -- that is, who stayed within the limits imposed by the torture memos. Obama's April 16 statement said:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Holder was more explicit about the boundaries of this forbearance:

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," said Attorney General Eric Holder.

Also untrue: that "threatening to disbar" authors of the torture memos for their tortured legal reasoning that authorized the obvious abrogation of U.S. treaty obligations and violations of U.S. law constitutes going back on a promise. Obama indicated early that he would prefer not to prosecute the authors of the memos. The draft report by the Justice Dept.'s Office of Professional Responsibility, completed by May of this year, does not recommend prosecution. The still-unreleased report is, according to the Times, (May 6), "likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions."

As a corollary lie to the lie that Obama has reversed himself, Cheney added this:

We ask those people [intelligence operatives] to do some very difficult things. Sometimes, that put their own lives at risk. They do so at the direction of the president, and they do so with the -- in this case, we had specific legal authority from the Justice Department. And if they are now going to be subject to being investigated and prosecuted by the next administration, nobody's going to sign up for those kinds of missions.

Again, Holder has directed the investigation at those who exceeded the boundaries imposed by the torture memos.

Cheney also lied regarding the import of the declassified CIA memos assessing the effects of the CIA interrogation program:

But the interesting thing about these is it shows that Khalid Sheikh Mohammed and Abu Zubaydah provided the overwhelming majority of reports on Al Qaeda. That they were, as it says, pivotal in the war against Al Qaeda. That both of them were uncooperative at first, that the application of enhanced interrogation techniques, specifically waterboarding, especially in the case of Khalid Sheikh Mohammed, is what really persuaded him. He needed to cooperate.

As Wallace himself indicated in the phrasing of his question, the CIA reports do not show that "the application of enhanced interrogation techniques...is what really persuaded him." Here's how Wallace put it:

While they say that the overall program got absolutely crucial information, they do not conclude whether the enhanced interrogation programs worked. They just are kind of agnostic on the issue.

Every news organization that has reported the release of these documents has noted that they provide no information as to what techniques yielded what information. And it's a flat-out lie that Abu Zubaydah was "uncooperative at first." Zubaydah's first interrogator, the FBI's Ali Soufan, has written and testified that Zubaydah gave up reams of precious information in interrogations led by Soufan before the CIA intervened and began its escalating series of abuses and torture techniques. No one has contradicted Soufan's testimony.

There were other lies and distortions and misleading innuendos - e.g., that the torture memos provided direction as to how to keep the interrogation program in compliance with U.S. international treaty obligations, when in fact they simply denied the treaties' authority over the President's "article II" authority to conduct war in any way he sees fit; that the FBI is unfit to play the lead in detainee interrogation; that the Bush Administration did not deliberate in detail over the conduct of the interrogation of key detainees; and that the Obama Administration has not stepped up pilotless drone attacks on suspected Taliban leaders )fro better or worse).

Debunking Cheney's lies and distortions is a potentially limitless exercise -- worthwhile only because his slurs sit like time bombs, ready to detonate into full-scale "stab-in-the-back" paranoia after the next major terrorist attack.

"Measuring him by the sentiment of his country..."

When I read those who lambast Obama for shrinking from investigation and prosecution of those who authorized torture, I essentially agree. The U.S. is bound by international and domestic law to prosecute torturers.

When I read those who take Obama and Geithner to task for coddling distressed or insolvent banks, I worry, though I'm really not qualified to judge.

Both charges, though, often bring to mind Frederick Douglass's assessment of Lincoln's gradual, calibrated, calculated move toward emancipation:

Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.

I also think of FDR, moving the U.S. at what from Churchill's desperate perspective was glacial speed toward engagement in world war.

As a political general, Obama is meticulous about covering his flank. Put another way, in political warfare he subscribes to Powell's doctrine of overwhelming force. He has sixteen high-ranking officers stand behind him when signing the executive orders ending torture and preparing to close Guantanamo. He has Robert Gates to do the heavy lifting on deep cuts and a new approach to military procurement (Gates pretty much laid out what he wanted to do while Bush was still in office; Obama's political skill was more in choosing him that shaping his policy on this front). And while Obama to a degree exposed himself to backlash within the CIA by releasing the torture memos, the memos themselves may ultimately provide cover for the next steps in national catharsis. When prosecution of Bush Administration officials comes on Obama's watch, his stance will be more in sorrow than in anger. If major banks are nationalized, it will be (as Roubini suggested it must) when no one has any doubt that they are insolvent.

Glenn Greenwald, as fierce a critic as any Obama has on the civil liberties front, understands this dynamic in his own way and is more than willing to play his role, analogous (I would think) from his point of view to that of the abolitionists pushing Lincoln:

Criticisms directed at Obama and Holder for advocating immunity for CIA officials who relied in "good faith" on DOJ memos (a mere subset of the government criminals) is absolutely warranted. But, it is not Obama's sole responsibility -- or even his decision -- to prosecute. As a strictly legal matter, that is a decision for the Attorney General, independently, to make; it is Eric Holder who has the obligation to enforce the law, independent of anything Obama wants or says and regardless of what public opinion demands.

But more crucially, it is also the responsibility of the citizenry to demand that this happen. What Obama did yesterday -- whether by design or not -- provided the most potent tools yet to create the political pressure for prosecutions. As Kevin Drum makes clear, no decent human being reading those memos would be anything other than repelled by what was in them. Polls already found that large percentages of Americans, majorities even, favor investigations and/or prosecutions for Bush crimes. The onus is on those who believe in the rule of law to find ways to force the government to criminally investigate whether they want to or not (this petition demanding that Holder appoint a Special Prosecutor is a very good place to begin, though it will require much more than just petitions).

Andrew Sullivan, more prepared than Greenwald to invest personal faith in a leader, sees Obama playing "a long game":

I share Greenwald's deepening concern about Obama's concessions to the national security state. But I am not convinced there is no method to his meandering.

Obama understands he is the president, which means that he understands, unlike his overwhelmed predecessor, that he is the president of all Americans.

He knows that indictment and prosecution of the war criminals at the heart of the last administration would appear to those cocooned from the reality of what happened as an assault on American unity and stability. That proper concern has to be balanced against the gravity of the crimes, the profound nature of the constitutional claims that underpinned them, and the necessity to uphold the rule of law. And so a process whereby the president hangs back a little, allows the evidence to slowly filter out, releases memos that help prove to Americans that what was done was unequivocally torture and indisputably illegal ... is not to be despised.

I think Obama knows what happened; and he knows that, in the end, America will have to face it. He will not defend it, but he will not be the prosecutor either. It's the long game he knows. And it's the long game that will bring these people to justice.

Then too, those of us who believe that investigation and prosecution for torture have to happen need to exercise some imagination to recognize what we are asking for. Cheney's shameful charge that Obama is exposing the nation to terrorist attack by banning torture is just a foretaste of the rage that will be unleashed from still-powerful political forces when hearings and trials take place. Imagine that those trials go forward. And then imagine a successful major terrorist attack in the U.S. The country's mood could change in an instant. An authoritarian thug like Giuliani or a demagogic buffoon like Palin could be elected, and really end American civil liberties. Perhaps -- after, say, a nuclear terrorist attack -- there could even be a coup, though it's hard for me to imagine the intervening chaos, and any coup would have to circumvent the current military leadership.

That's why Obama is positioning himself to be pushed. That's why Democrats in Congress won't start investigations without some Republican support. It's not cowardice. It's a matter of building the overwhelming political support needed for a process that will be traumatic in itself and could be destabilizing if coupled with a major external shock.

Heart of Darkness

Andrew Sullivan on Bush Administration doublethink:

Looked at from a distance, the Bush administration wanted to do two things at once: to declare to the world that freedom is on the march, and huamn rights are coming to the world with American help, while simultaneously declaring to captives that the US has no interest in the law, human rights, accountability, transparency or humanity. They wanted to give hope to all the oppressed of the planet, while surgically banishing all hope from the prisoners they captured and tortured. And the only way they could pull this off is by the total secrecy they constructed and defended. So we had a public government respectful of the rule of law, and a secret government whose main goal was persuading terror suspects that there was no rule of law at all. It is hard to convey just how dangerous this was and is.

As the blogging cliche goes, read the whole thing. Also the newly released torture memos.

A "seam-ly" internal Administration debate resolved?

So this is how Obama divided the torture memo baby: 1) the memos are released; 2) CIA operatives who conducted the torture will not be prosecuted; and 3) the President asserts his right (in fact his "duty") "to vigorously maintain the classified nature of certain activities and information related to national security."

The seams of internal Administration debate show in Obama's Statement on the Memos, but in a good way. There is an implicit rebuttal of those who argued that releasing the memos would compromise national security, balanced by an implicit nod to those who argued to protect CIA operatives, and further balanced by the "reservation of rights" to withhold other documents cited above.

Note the weave back and forth between the opposed camps through the heart of the memo, and note that there's no "triangulation" here, just a sober balancing of powerful interests:

While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Note that Obama decided to protect the operatives -- not necessarily those who devised and approved the policies authorizing torture - though he did say

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.

I would have to disagree with him there. The United States is required by law - international and domestic - to prosecute those who authorized torture. We will see how the Adminstration handles this duty over the long haul.

John Brennan, whipping boy

A little object lesson from Andrew Sullivan in how righteous indignation can overshoot:

"Holy hell has broken loose over this," is how one of Mike Isikoff's sources has described John Brennan's attempt to prevent release of three damning OLC memos drafted by the Bush administration in its systematic program for torturing terror suspects. One begins to realize how deeply important it was that Brennan didn't get the top CIA job.You see now his attachment to the torture regime he pretended to oppose and his fierce loyalty to CIA officers who may have committed war crimes and now seek to prevent the American people from finding out what was done in secret, against the law, in their name (my emphasis).

Brennan may indeed be acting out of "fierce loyalty" and still have opposed some, perhaps most or all, of the Bush Administration's worst crimes. Life is messy. He may have opposed some, stopped others, acquiesced in others, had no role in others.

Moreover, Andrew neglects to mention not only Brennan's reputed argument against releasing the memos -- "that release of the memos could embarrass foreign intelligence services who cooperated with the CIA" -- but also Isikoff's report that Brennan has won over anti-torture champion Leon Panetta, the CIA director, to his point of view.

I think that the memos have to be released (are redactions protecting cooperating countries feasible?) The crimes of the last Administration are like toxic assets on the national blaance sheet; the U.S. won't be fully "ready to lead again," as Obama proclaimed in his inaugural address, until it's all out and dealt with. But the (alleged) fact that Brennan could convince Panetta and stall the process is a reminder how easy it is for those of us on the outside looking in to fail to imagine how inside knowledge might bring people of good will with decision-making power to conclusions different from their (our) own.