Tag: Jack Goldsmith

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Barack Obama Criticism Economics Financial Crisis National Security Politics The Bush Legacy The Media The Opinionsphere The War on Terrorism

Dueling Op-Eds

Last Friday saw two sets of dueling op-eds on the opinion pages of the Washington Post and the New York Times.

At the Post, Charles Krauthammer, professional pundit, accuses the Obama administration of aiding Khalid Sheikh Muhammad in giving “voice” to the “propaganda of the deed” that was September 11. Krauthammer accepts no justification offered and launches one after another attack on the very idea of trying KSM, and most of all, on the Obama administration for bringing him to trial. Reading Krauthammer, it is difficult to understand why Attorney General Holder made the decision he did. It seems unfathomable and downright un-American.

Elsewhere in the section, two former top Bush Justice Department officials – Jack Goldsmith and James Comey – make the case that Attorney General Holder’s decision was reasonable, though there may be reason to disagree with it. They go through some of the advantages of the Attorney General’s decision, and conclude:

The wisdom of that difficult judgment will be determined by future events. But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision.

Over at the New York Times, David Brooks and Paul Krugman have a more evenly balanced argument over Timothy Geithner.

Brooks’s conclusion was that Geither’s intervention was effective:

On the other hand, you would also have to say that Geithner, like many top members of the Obama economic team, is extremely context-sensitive. He’s less defined by any preset political doctrine than by the situation he happens to find himself in…In the administration’s first big test, that sort of pragmatism paid off.

Krugman though concludes Geither is part of the problem, and even if he got the short-term economics right, the political situation won’t allow for any significant course corrections because the initial steps were so against the popular mood:

Throughout the financial crisis key officials — most notably Timothy Geithner, who was president of the New York Fed in 2008 and is now Treasury secretary — have shied away from doing anything that might rattle Wall Street. And the bitter paradox is that this play-it-safe approach has ended up undermining prospects for economic recovery.

It’s interesting to see such jousting on the same op-ed page. As opposing sides make their case, one can often learn more than from reading mere news.

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Barack Obama Criticism National Security The Bush Legacy The Opinionsphere The War on Terrorism

Glenn Greenwald’s Civil Libertarian Propaganda

[digg-reddit-me]Last week, Glenn Greenwald felt compelled to make the same basic point that Jack Goldsmith did back in May just before the dueling speeches by Cheney and Obama – that the Obama administration’s national security policies do not make for as sharp a break from Bush’s as they have been portrayed. As Goldsmith described the similarity:

[T]he Obama practices are so close to the late Bush practices is that the late Bush practices were much different than the early ones. In 2001-2003, both fear of terrorism and Bush unilateralism were at their height. But in the last six years, the terror threat has appeared to fade (at least to the public), and Congress and the courts have engaged on terrorism issues, pushing back on some, approving others, and acquiescing in yet others…In these and many other ways, U.S. terrorism law looked wholly different at the outset of the Obama administration than in 2001-2003. The law was much clearer in 2009, and there was much greater consensus–across political parties and the branches of government–about permissible policies and their limits. Many Obama policies reflect that consensus.

Goldsmith doesn’t mention another relevant fact about the Bush administration’s approach – that even as it scaled back the vast powers it asserted in the aftermath of September 11 and rolled back certain practices, it was careful to never admit a mistake or repudiate the extreme measures it had used. At the same time, even to the extent that it did do so, the Bush administration had no credibility because they had lied about what they were doing in the first place – from warrantless wiretaps to torture.

Greenwald though omits this vast change of behavior between the worst practices of the early Bush administration and its later years. Because to bring that up would undermine his propagandistic purposes which involves attacking Obama. See what I mean:

This leads to a more general point:  when it comes to uprooting (“changing”) the Bush/Cheney approach to Terrorism and civil liberties — the issue which generated as much opposition to the last presidency as anything else — the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do.  They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers.  With great fanfare, they announced the closing of CIA black sites — at a time when none was operating.  They trumpeted the President’s order that no interrogation tactics outside of the Army Field Manual could be used — at a time when approval for such tactics had been withdrawn.  They repudiated the most extreme elements of the Bush/Addington/Yoo “inherent power” theories — while maintaining alternative justifications to enable the same exact policies to proceed exactly as is.  They flamboyantly touted the closing of Guantanamo — while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram.  Their “changes” exist solely in theory — which isn’t to say that they are all irrelevant, but it is to say that they change nothing in practice:  i.e., in reality.

Greenwald makes a big deal of the fact that the changes are in “theory” not “in reality” – but neglects to mention that most of the worst aspects of Bush’s abuses of power were only present in theory by the time Obama took office – due to pushback from Congress, the Courts, etcetera. Bagram is a serious issue – and Greenwald is entirely justified in talking about that particular hypocrisy. But the “ideological wind tunnel” that is Greenwald’s calling card causes him to omit key facts here – as it so often does.

And you n0tice – in setting up his own “spike,” Greenwald implicitly accepts Goldsmith’s contentions – that the Bush administration had stopped torturing, had reconstituted its wiretapping program with Congressional and court approval, and had otherwise already ceased the worst abuses of power.

A final note: Greenwald’s approach to Obama seems to have more to do with his discomfort with defending any establishment than with actual policy. There are certainly reasons for civil libertarians to be unhappy with Obama, but for Greenwald, there’s a strong sense he wishes no part in defending any Establishment. This makes him a gadfly – which while often useful does not make him right all the time.

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National Security Politics The Opinionsphere The War on Terrorism

The Judgment of History

Patrick Radden Keefe mentioned, in an offhand manner, one of the great questions about the transition:

Even the legal opinions governing the program are still squirreled away in a safe in Vice President Dick Cheney’s office. In recent months, the Senate Judiciary Committee and a Washington district judge have ordered them turned over, and the next attorney general should do so immediately.

He was referring here to the wiretapping program specifically – but it applies to many of the legal rationales in the War on Terror. Dick Cheney and his lieutenants David Addington and Scooter Libby perfected the art of bureaucratic warfare during the first years of the Bush administration. According to Jack Goldsmith as quoted by Barton Gellman:

They were geniuses at this. They could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts they gave them, and then put the answers together to get the result they want.

In addition – as Keefe mentioned – and as Gellman reported in his book The Angler – Addington kept certain legal documents exclusively in the safe in his office. Not just copies – but the originals, with no copying permitted, and with access to the documents severely limited. (For example, even the attorneys in the National Security Agency responsible for making sure the NSA was following legal guidelines were not permitted to see the legal rationale for their wiretapping program.) As members of the incoming administration attempt to decide what is the best means to deal with the abuses of power during the Bush administration – Nuremberg-style trials? a truth commission offering clemency? the normal legal system? – you have to wonder what steps Cheney and Addington will take. There has been much discussion of whether or not George W. Bush will offer a preemptive pardon to anyone involved in the War on Terror – but less discussed is what Cheney and Addington might be able to do to entirely obfuscate attempts to find out what happened.

Based on my understanding of Cheney’s personality as described by Barton Gellman – and on his recent interview with ABC News – I think Cheney might want to just get it all out there. He virtually admitted – though not necessarily to the point of taking legal responsibility – that he authorized war crimes:

He was also asked whether he authorized the tactics used against Khalid Sheikh Mohammed.

“I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn’t do,” Cheney said. “And they talked to me, as well as others, to explain what they wanted to do. And I supported it.

It seems that Cheney – at least on some issues – is now, and finally, willing to come forward and admit his role. He isn’t willing to admit fault – but seems proud of what he did, and willing to accept the judgment of history.

Still given the extreme secrecy surrounding even the legal rationale of many aspects of the War on Terror, we may never know if documents are destroyed.