Bad Law Professor of the Week
Once again Stinque presents Bad Law Professor of the Week. Today we offer Jack Landman Goldsmith for your consideration. Believe it or not, this clown teaches at Harvard, where he is the Henry L. Shattuck Professor of Law. And today he has an editorial in the WaPo. Let’s dive right in.
There has been much speculation about how the Obama administration will deal with what many view as the Bush administration’s harsh, abusive and illegal interrogation program. Some have called for an investigation by Congress or the Justice Department, possibly leading to criminal sanctions. Others think such investigations are infeasible or would smack of political retribution, proposing instead that a bipartisan commission look into the matter.
These are all bad ideas. They would bring little benefit, and they would further weaken the Justice Department and the CIA in ways that would compromise our security. (I worked at the Justice Department from 2003 to 2004 on issues that probably would be subject to new investigations, so readers should consider my views accordingly.) (emphasis supplied)
This has to be the most blatant attempt at a CYA in the history of opinion journalism.
To begin with, all of the relevant facts — who approved what, what the legal opinions say and what actually happened — are well known inside the government. The interrogation and related programs have been extensively scrutinized in public sessions of Congress, in many classified sessions by congressional intelligence committees, in several investigations by the CIA inspector general and the Justice Department’s Office of Professional Responsibility and by the special prosecutor investigating the destruction of interrogation tapes.
If no one should be held responsible, then why the fuck are we bothering to find out who was responsible?
But we should also recognize the costs of these investigations. Second-guessing lawyers’ wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.
I seem to remember how that “careful legal judgment” resulted in this sort of thing:
I paid attention in law school, and I sort of remember one of the main points was that “careful legal judgment” wasn’t supposed to result in heaps of dead bodies and violations of the Geneva Conventions.
Yet another round of investigations during the Obama administration, even by a bipartisan commission, would exacerbate this problem. It would also bring little benefit. The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.
So enforcing laws that trace their lineage back to the Magna Carta bad, scolding torturers good. Bad Cheney!
The best way for the Obama administration to establish a record of what happened under President Bush without further debilitating our national security system is simply to let the many current investigations run their course.
Shorter Jack Goldstein: While I am all for this “rule of law” thing, it would be unjust to actually hold anybody responsible for doing stuff everybody knew was illegal. Especially me.