Obama administration must investigate Bush era conduct in the War on Terror


Professor Jack Goldsmith

Last week, Professor Jack Goldsmith published an opinion piece in the Washington Post in which he argued that the Obama administration should not conduct any new investigations into the Bush administration’s authorization of its “harsh, abusive and illegal interrogation program.” Goldsmith, who was an United States Assistant Attorney General for the Office of Legal Counsel during the Bush Adminstration, believes that new investigations into this authorization of torture are unnecessary because we already know most of the story behind the approval of this program and, worse, any new inquiries could compromise national security by “spooking” the intelligence community, making them hesitant to undertake important counterterrorism actions. He also believes that those who “made mistakes” have already been held accountable through severe criticism and loss to their reputations and finances.

Goldsmith’s piece has already been critiqued by a number of analysts and commentators. But his article is particularly troubling for some of us at Harvard Law School who do not share his views. It misrepresents the actions that led to the authorization of torture, it ignores the legal significance of those actions, and it neglects the value that proper investigation and punishment of those actions would have.

Claiming that there is no reason to investigate because those likely to be implicated have already suffered enough is not particularly convincing, given the gravity of the wrongdoing in question.

Reading the now-infamous “torture memos,” in which U.S. and international laws were stretched, bent, and twisted in order to put a legal varnish on the use of interrogation methods well-established as torture, suggests more than a simple “mistake.” The men and women who crafted the legal arguments justifying the use of torture as state policy are intelligent and highly-trained lawyers, who knew and understood the law well. Signing off on interrogation techniques like waterboarding and the use of attack dogs cannot be credibly characterized as actions that “seemed reasonable at the time but now seem inappropriate.” These facts all suggest deliberate distortion of the law to justify patently illegal actions.

The torture memos in particular indicate that, at the very least, the ethical obligations of the legal profession were breached. However, approving the use of torture during interrogations is more than just an ethical violation; it is a war crime that, under the laws of this country, calls for prosecution. An investigation is required to determine who, if anyone, should be charged. The fact that some of the individuals involved have suffered damage to their reputation and finances is no substitute for appropriate punishment if a crime has been committed. To argue otherwise is to suggest that the rule of law does not apply to those at the highest levels of government.

Furthermore, Goldsmith’s argument that further investigation will lead the decision-makers in our military and intelligence agencies to “lawyer up” and behave more cautiously, to the detriment of national security, ignores the fact that the “airtight legal opinions” given by the Justice Department were clearly distorted interpretations of the law. One of the lessons we have learned from the machinations of the Bush administration during the War on Terror is that legal practitioners must be able to give advice-even on highly sensitive issues-without undue political influence.

The Office of Legal Counsel is intended to advise the president on what actions he or she may legally take, not to craft shamefully twisted legal arguments to justify whatever action the president wishes to take. An investigation into what went on sends the message that legal advice must be reliable, consistent and non-politicized. Rather than making national security officials skittish, investigation and prosecution of those responsible for the authorization of torture should have the opposite effect: in the future, officials could feel confident that the legal advice they were given would stand up to future scrutiny, because distorted, “rubber stamp” legal advice will no longer be acceptable.

In claiming that further action on these issues would bring “little benefit,” Goldsmith fails to recognize the value that thorough investigations, followed by prosecution where required, would have both at home and abroad. Notably absent from Goldsmith’s analysis is the potential benefit that such an investigation might have for the many people who were illegally detained and tortured at the hands of United States officials. Investigations would provide an opportunity to begin to make amends to those who were harmed-and in some cases, killed-by the illegal actions of our government. Moreover, investigations would provide the American public with the truth about what exactly was done in their name, and by whom. Such a process can further enhance security by restoring our badly damaged international reputation.

We must reaffirm our commitment to the rule of law, not only to demonstrate that no one in this country is above it, but also to show the world that fighting terrorism does not require the abandonment of our most dearly-held principles.

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