Goldsmith Gets It Wrong: The Facts Aren’t Too Much to Ask For

In a Washington Post column today, Jack Goldsmith argues against any further investigation into the Bush Administration’s interrogation policies and practices. He argues that the relevant facts are well known inside the government, and that existing investigations have done the job adequately. But the crux of his argument is that “second guessing lawyers’ wartime decisions” will cause lawyers to become excessively cautious in offering advice “and will substitute predictions of political palatability for careful legal judgment.”

But isn’t that danger he warns about exactly what got us into trouble in those heady days after 9/11? Except that, in those days, harsh and abusive interrogation policies were more politically attractive to some Administration lawyers than support for human rights, the rule of law, and compliance with U.S. and international laws.

Goldsmith, who worked at the Justice Department from 2003 to 2004 on issues that probably would be subject to new investigations, also claims that “the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one’s memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.”

But accountability isn’t too much to ask.

Goldsmith claims that little will be gained by further investigation: “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.”

In our Blueprint for the Next Administration on Ending Torture, Human Rights First has recommended the establishment of a nonpartisan commission, modeled on the 9/11 Commission, to investigate the facts behind U.S. government detention and interrogation policies since 9/11, in order to assess the strategic impact of these programs, to identify lessons learned, to make recommendations to avoid future abuse, and to let the public know what really happened.

Despite the multiple investigations cited by Goldsmith in his column, the information currently available to Congress and the public is fragmented and incomplete. In order to learn from the mistakes of the past and prevent future abuse, the president should establish a commission to produce a complete public report of U.S. detention and interrogation practices and policies since 9/11. The establishment of such a commission would signal U.S. commitment to the rule of law and accountability, and is an important part of moving forward preventing further abuse and protecting our national security.

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Published on November 26, 2008

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