Withdrawing the Torture Memos

In next Sunday’s New York Times Magazine, Jeffrey Rosen talks to Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel, about the objections he had to the Bush Administration’s policies on torture and detainee treatment and how he ultimately left his job in order to make sure his decision to withdraw one of the torture memos “stuck”. An excerpt of the story is below. Despite Goldsmith’s efforts to guide administration policy back to the law, did the withdrawal of the torture memos make a difference? Here’s the memos’ author, John Yoo, later in the piece: “Yoo says it is his understanding that no policies or interrogation techniques changed as a result of the withdrawal of the torture memo, noting that all policies that were legal under the withdrawn opinions are also acknowledged as legal under the opinion that eventually replaced the withdrawn ones.”

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other
details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that he has checked his recollections of this and other meetings with at least one other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”

The conflict over the Geneva Conventions was just the beginning. About six weeks after he started work, Goldsmith became aware that there might be what he calls “potentially problematic” opinions drafted by the Office of Legal Counsel. These were the “torture memos,” one of which was written in August 2002 and the other in March 2003. The August opinion defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” Goldsmith concluded that this opinion defined torture far too narrowly. He also had concerns about the March 2003 opinion, the contents of which remain classified but which dealt with the military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the “extremely broad and unnecessary analysis of the president’s commander in chief power” in the memos. The August opinion, for example, boldly concluded that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President.” Goldsmith says he believed at the time, and still does, that “this extreme conclusion” would call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment. He also found the tone of both opinions “tendentious” rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.

Yoo has acknowledged drafting the August 2002 memo, which he says was the basis for the interrogation of Abu Zubaydah, a top Al Qaeda operative. Yoo also wrote and signed the March 2003 opinion. His friendship with Goldsmith made it especially awkward for Goldsmith to criticize the memos. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith told me. “We don’t talk anymore, and that’s one of the many sad things about my time in government.”

In December 2003, Goldsmith decided that he had to withdraw the March opinion — that is, he had to tell administration officials that they could no longer rely on it. “But figuring out how to withdraw it was very tricky,” he told me, “since withdrawal would frighten everyone who relied on the opinions in a very sensitive area.” In the past, the Office of Legal Counsel had occasionally changed its legal positions between presidential administrations to reflect different legal philosophies, but Goldsmith could find no precedent for the office withdrawing an opinion drafted earlier by the same administration — especially on a matter of such importance.

Goldsmith concluded that he could immediately tell the Defense Department to stop relying on the March opinion, since he was confident that it was not needed to justify the 24 interrogation techniques the department was actually using, including two called “Fear Up Harsh” and “Pride and Ego Down,” which were designed to make subjects nervous without crossing the line into coercion. But the withdrawal of the August opinion was a much harder call. The August opinion provided the legal foundation for the C.I.A.’s interrogation program, Goldsmith says, which he considered much closer to the legal line. (He refused to discuss the details of the program.)

Goldsmith, however, says he didn’t have the time or resources to create a replacement opinion immediately. In his initial months on the job, his attention was focused on the more pressing matter of addressing legal issues surrounding the terrorist-surveillance program. In April 2004, however, Goldsmith’s priorities were reversed when the Abu Ghraib scandal broke. Then, in June of that year, Yoo’s August 2002 opinion was leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” Goldsmith told me, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew the opinion. Goldsmith made the decision himself, in consultation with Philbin and Deputy Attorney General James B. Comey, both of whom, Goldsmith says, agreed it was the right thing to do. He then told Ashcroft, who was, Goldsmith writes, “unbelievably magnanimous: it had happened on his watch, and he could have overruled me, and he didn’t.” Goldsmith was concerned, however, that the White House might overrule him. So he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. “If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. “The timing was designed to ensure that the decision stuck.”