A Low Bar for Heroes

The term perfect storm was coined in reference to the combination of three weather phenomena, a low pressure region, a cool high pressure region, and hurricane moisture, to come together to turn a nor'easter into a hurricane with nightmarish maritime consequences. Although the expression is overused, perhaps it is a reasonable description of the forces that came together in the Bush White House to produce the policies that lead to the sanction of torture at the highest levels of the United States government. And perhaps it is premature to declare anyone who objected to one of the three currents, but was wholeheartedly supporting of others, a hero.

The Nexus of Power, Sovereignity, and Authority

In this case, the three trends were the neocon policies of forceful projection of American power, the new sovereigntist views opposing any and all restrictions to U.S. authority by international law, and the federalist/unitary executive theorists arguing for increasing the power of the executive branch of government over the other two branches. Not all adherents of one or the other of these philosophical viewpoints were necessarily adherents of them all, and it is interesting to note, looking back over the last seven years, that those who were adherents of them all seem to also be those who are often looked on as the most evil. Principal among those would be Vice President Cheney and some who operate out of his office, like David Addington.

But what of the odd hero of many of late, Jack Goldsmith, who's rescinding of torture memos, and participation in the FISA stand-off in John Ashcroft's hospital room have earned him a sort of respect and admiration, exemplified by Jon Stewart's attempts to wring a condemnation of the policies of John Yoo and others out of Goldsmith on The Daily Show, only to end up complaining that Goldsmith had rebutted every attempt Jon Stewart had made.

Goldsmith is a new sovereigntist, one of the originals, who was leading the charge against what he and others of that belief saw as the illegitimate application of customary international law by the courts, and decried the intrusion of foreign powers working against U.S. sovereignity in the forwarding of international human rights law -- all before the Bush administration took office. The names of these people contain some that are familiar, and some that overlap with other concerns: Robert Bork, John Yoo, John Bolton, David Addington, Jack Goldsmith, and less known people like Curtis Bradley and Jeremy Rabkin.

Perhaps they had a sympathetic ear with George W. Bush and his counsel and later Attorney General Alberto Gonzales. Years before his presidency, Bush had been confronted with international pressure to conform to human rights standards from abroad, in the form of letters from the European Union pleading against death penalty implementations in Texas, penalties that had been forwarded to then Governor Bush by Gonzales, on grounds of international treaties, and on general humanitarian grounds.

When these people were combined with the neocons asserting the rights of the United States to assert power in the wake of September 11, and of those who sought to expand presidential power, a goal of Vice President Cheney since the Watergate days, the result was a national security legal team that Goldsmith characterized as the war council, whose principal members were Gonzales, then White House Counsel, Addington, then Vice Presidential Council, Yoo, then deputy assistant attorney general in the Office of Legal Council, and William J. (Jim) Haynes II then Department of Defense legal counsel and Goldsmith's boss. It is interesting that in the fight over the U.S. attorneys there should be so much talk about the OLC not separating themselves from the White House when there was such a group that met regularly to decide how to legalize national security policy.

This mix of beliefs in an all powerful wartime president, in asserting both American power and defying international law, led to torture memos and enhanced interrogation methods that have since been supposedly repudiated. It led to the NSA illegal wiretapping and challenges to the FISA laws. It is probably still felt in the assertions by both the presidency and the vice-presidency that they do not need to testify before Congress, or more astonishingly, that Congress has no right to oversight at all. It led to the signing statements in some ways, the assertion, coming originally from Federalist Society members like Samual J. Alito Jr. that the sense of the President in signing legislation held equal or greater weight than the sense of the Congress in authoring and passing it.


Believing in Less

Some in the administration's team believed in less, and Goldsmith was one of them. He believed absolutely in the right of the President to ignore international law and act forcefully in the name of national security, but was apparently appalled, if that's the right word, by the assertions of presidential power over the other two branches of government, the decision by the executive branch to 'go it alone'. And that was his real objection to the Yoo torture memos -- that they put the President on weak legal footing when instead the President should have gone to Congress and the courts to get backing for those powers. That isn't exactly a heroic position against torture, and it is the source of the confusion Jon Stewart was experiencing.

It is worth looking at his positions in the light of his writing at the time, and in light of the context. It is worth looking at his tenured position at Harvard with equal scrutiny to that of John Yoo's at Berkeley, regardless of his protestations that he didn't write the memos enabling torture. Shall we start with the memo he did write, enabling rendition of Iraqi and foreign prisoners to CIA sites for interrogation or to Guantanamo or Bagram?

A Little Context

In December of 2001, as the invasion of Afghanistan progressed, the Bush administration was looking for ways to detain and interrogate prisoners. That was the month that the decision was made to put prisoners beyond the law in Guantanamo Bay, that was the month that the memos out of the OLC resulting in presidential directives were being written, to declare al Qaeda and the Taliban to be not covered by the Geneva Conventions. The fiasco at Tora Bora was going down, and, since everyone knows one reason for its outcome was siphoning off of forces to prepare for war in Iraq, a wider war was being discussed. As a result of the Taliban and al Qaeda being forced over the mountains in Afghanistan, they were fleeing into Pakistan, principally into the Northwest Frontier Provinces (NWFP). That was when the majority of the people who would become quasi-permanent detainees, the high and the low valued ones, were being arrested in Pakistan. Over a few months, 3,000 would be arrested, mostly Pakistanis who had gone north to participate in the fighting, or were on the out-and-out with the Pakistani ISI, or were turned in by whomever, or... Out of those arrested, there were 275 (some say 255) prisoners who were 'foreign fighters'. They were segregated off from the Pakistani nationals, and turned over for 'interrogation' to the FBI and the CIA at Kohat and Haripur prisons in the NWFP. While initially all were held within Pakistan, eventually there would be reports of prisoners 'disappeared' in Pakistan, who ended up at Bagram in Afghanistan, and of course there were well known high profile detainees such as Abu Zubaydah and Khalid Sheikh Mohammad, who went to Black Sites, and then to Guantanamo.

The separation would form the seed of the legal justifications later written into a memo by Jack Goldsmith, namely, that to get around the restrictions of the Fourth Geneva Convention, specifically Article 49, which prohibits moving civilians out of the territory of the conflict or of occupation, the foreign fighters could be charged with immigration violations under local law, and the locals could be held without charge. That's right, the grounds on which fighters could be rendered within Pakistan to Americans for interrogation by the Pakistani government was that they were illegal immigrants. Chilling, isn't it, to know what being an illegal immigrant can mean in the war on terror? Incidentally, the current scraps between the judiciary and Pervez Musharraf in Pakistan have as part of their roots precisely these disappeared prisoners and their detention without charge. But Goldsmith wrote in 2004, because he had by then become the head of the OLC, and his subject was Iraq.

To add more context to the memo which Jack Goldsmith wrote in March 2004 to put those detained by the Americans in Iraq outside of Article 49 so that the CIA could take them out of Iraq to interrogate them, Military Intelligence was, at the time being criticized for interrogation methods, in Iraq, that the ICRC stated were 'tantamount to torture'. The practices used had led, in one instance, to a prisoner with conversion disorders so strong that the prisoner, when examined by Red Cross doctors, was found to be 'unresponsive to verbal and painful stimuli' as a result of interrogation (p.13). Dana Priest, Jane Mayer, and others would eventually write about Black Sites, and document the use of refined methods of sensory deprivation and waterboarding there. Saying one did not write torture memos, when one wrote memos to justify spiriting prisoners out of Iraq to CIA interrogation, is a bit, shall we say, less than heroic.

How It Should Have Been Done

So, given that John Yoo did it all wrong, what were the arguments for taking people from Iraq and putting them into CIA interrogation? Well, for the foreign fighters, they were patterned on the Kohat prisoners. Jack Goldsmith meanders through pages of word etymologies and meanings taken from the time the Geneva Conventions were written (common apparently for new sovereigntists), to be very clear to himself what deportation means in Article 49. He decides that the writers were reacting to mass forced deportations during World War II, how the first word of the sentence, "individuals," got there he doesn't say. He decides that the difference between transfers and deporations is somehow permanence. He even relies on the convention's stipulation that children under 15 be removed from war to justify the idea that the convention doesn't really mean that nobody can be moved. And then he decides that, since the occupying power must enforce the local laws, and since the Iraqi government prior to invasion had a law requiring deportation of illegal immigrants, the U.S. was merely enforcing immigration laws in Iraq by transporting them to CIA sites, or to Bagram or Guantanamo.

And what of the Iraqi citizens? Surely if Article 49 applies to anyone, it applies to them. Ah, but wait. In a precursor to Antonin Scalia's comments that torture would be legal if it is not done for punishment, and even basing his points on the stipulation that various Bill of Rights amendments only apply in court, or only after conviction, Goldsmith determines that the only civilian prisoners who cannot be moved out of the country are those who have been accused. Consequently, the CIA can take them to Black Sites if no one has charged them with an offense yet. Very interesting, since the reason that the military can hold prisoners without charge, supposedly, is because they are combatants, who may be held for the duration of conflict. Civilians are not supposed to be detained without charge at all. But by extending the period between arrest and accusation, they are suddenly eligible for a sensory deprivation chamber or a little enhanced interrogation somewhere outside of Iraq, as long as they are brought back afterwards and accused of something. Illegal immigration and detention without charge aren't just political causes or assurances that terrorists don't get to many of our rights, they are ways to ignore the laws of war.

What a noble guy. Perhaps Harvard Law should confer with Boalt Hall, and together they should come up with a policy for granting tenure, that does better than give enablers of torture and enablers of rendition into the blackness of secret sites positions for life from which they can come and go as their government needs their nefarious services.