Goldsmith and torture

by Henry Farrell on January 29, 2006

Via “Orin Kerr”:, this Newsweek “story”: about Jack Goldsmith and his efforts to oppose the Bush administration’s claims to sweeping powers to authorize torture and to wiretap American citizens. It’s become more and more clear over the last few months that Goldsmith played a very honourable role behind the scenes – while he’s certainly a conservative, he appears to be one who’s prepared to stick to his principles when it’s politically difficult. When Goldsmith was appointed to Harvard Law School, some of his liberal colleagues “protested”:, arguing that he might have been complicit in authorizing torture (others, more reasonably, were concerned about his theories of international law). At this stage, I believe that the former owe him a fulsome public apology.



Ted 01.29.06 at 12:46 pm

An “offensively flattering or insincere” public apology? Are you being ironic?


Randy Paul 01.29.06 at 1:06 pm


Please note the following:

Fulsome is often used to mean “offensively flattering or insincere.” But the word is also used, particularly in the expression fulsome praise, to mean simply “abundant,” without any implication of excess or insincerity. This usage is etymologically justified but may invite misunderstandings in contexts in which a deprecatory interpretation could be made. The sentence I offer you my most fulsome apologies may raise an eyebrow, where the use of an adjective like full or abundant would leave no room for doubt as to the sincerity of the speaker’s intentions.

I’m sure Lowell Fulsome takes no umbrage, either ;-)


Henry 01.29.06 at 1:25 pm

I meant “fulsome” of the sincere variety – I hadn’t come across the other meaning. Perhaps there are differeng usages on different sides of the Atlantic?


Katherine 01.29.06 at 2:17 pm

There are some specific objections to memos Goldsmith wrote but it certainly looks like he did much more good than harm.

One of the more noteworthy bits of the article was this:

“Addington and Gonzales had both wanted to make [John] Yoo head of the OLC when Bybee went off to take a federal judgeship in March 2003, but Attorney General John Ashcroft balked.”

Lucky for us that Yoo and Ashcroft had a bureaucratic dispute.

Of course, Goldsmith, Comey, and Levin are gone, and Addington’s been promoted, and whoever the new OLC head is doesn’t seem to have any reservations about the NSA program.


Seth Edenbaum 01.29.06 at 2:52 pm

Goldsmith has declined to comment. Fighting the good fight with your own kind and walking away in silence rather than betraying their trust is not enough.
None of us owes Colin Powell an apology.


Ted 01.29.06 at 3:00 pm

I wasn’t trying to be pedantic – since the word has meanings which are pretty close to the opposite of one another, I just was a bit confused about which was intende. Sorry.


Ted 01.29.06 at 3:00 pm

I wasn’t trying to be pedantic – since the word has meanings which are pretty close to the opposite of one another, I just was a bit confused about which was intended. Sorry.


Max 01.29.06 at 3:53 pm

Why do they owe him an apology? From what I know, Goldsmith has been completely silent — to the point of refusing comment on the Newsweek piece — on any matters relating to his time in the Bush Administration.

What are they supposed to say, “we’re sorry we believed the public story you have never contradicted?”

As honorable as his time may have been, he has the same problem as Colin Powell: though I know you resisted wrongdoing, you have not done everything in your power to stop the wrong still being done, so how can I praise you?


Barry 01.29.06 at 5:35 pm

Forget ‘anything in his power’, he raised a quiet fuss, and when he lost, he left With his silence, he helped keep some actions of this administration unkwnown to the American people, until after the 2004 election.


thelawgal 01.29.06 at 8:34 pm

Max, Seth,

Goldmsith is ethically and legally obligated to keep quiet about the disputes he had within the Bush Administration. It seems quite unfair to blame him for not breaking the law and leaking that information. He tried to stop it, and was kicked out of DOJ for his rebellion, probably giving up a good shot at a judgeship along the way.


anon 01.29.06 at 9:18 pm

Let’s see … ethically and legally obligated to keep quiet about lawbreaking and violation of the Constitution, when he is an officer of the court. Interesting take on his obligations, lawgal.


P O'Neill 01.29.06 at 9:56 pm

This ‘fulsome’ business popped up a while back, strangely enough also in the context of Colin Powell.


Seth Edenbaum 01.29.06 at 10:05 pm

Ethically obligated to be silent and morally obligated to speak:
Stanley Milgram might have a thing or two to say about that ‘conflict.’

A resignation may be both wordless and very, very, public.

Democratic administrations appoint judges as well as Republican ones; but I liked the way the article referred to the “knee-jerk colleagues”


thelawgal 01.29.06 at 10:48 pm


Your comment makes no sense. Goldsmith was not practicing before a Court, so he was not acting as the officer of any Court. Are you suggesting that a DOJ lawyer with a disagreement about the law has an absolute trump that lets him violate the law whenever he likes? It sounds like exactly the kind of argument that Bush is making, and that Goldmsith himself was fighting against.


josh 01.30.06 at 2:25 am

The Newsweek article makes Ashcroft sound … relatively not bad.
What have we come to, that in battles within the DOJ, Ashcroft should wind up being (at least reluctantly) on the side of sanity?


someone7 01.30.06 at 8:06 am

I don’t believe getting Goldsmith off the hook – or not quite, depends on how you look at it – is the most important message behind this piece. I know it’s been debated abundantly elsewhere, but I think this part of Newsweek’s article sheds a lot of light on the OLC’s (and specifically, John Yoo’s) modus operandi in the particular case of government-sanctioned torture (note the timing: in the winter of 2002 the CIA sees the need, and asks for legal permission; in August 2002 the relevant memo is produced):

[…] In the winter of 2002, the CIA began catching top Qaeda terrorists—so-called High Value Targets—like Abu Zubaydah. These hard-case jihadists proved resistant to normal methods of interrogation. In the fevered atmosphere of the time, the Bush administration feared a “second wave” attack from Qaeda sleeper cells still inside the United States. The CIA wanted legal permission to use “coercive methods.”
An August 2002 OLC memo, signed by the then head of the OLC—Jay Bybee—but drafted by Yoo, gave the agency what it needed. The controversial document, which became famous as the “torture memo” when it leaked two years later, defined torture so narrowly that, short of maiming or killing a prisoner, interrogators had a free hand. What’s more, the memo claimed license for the president to order methods that would be torture by anyone’s definition—and to do it wholesale, and not just in specific cases. […]

I know, I know, the OLC works on demand, but a timeline so clear, combined with arguments so specious supporting torture, certainly could make for a good point in a special counsel’s indictment.


Barry 01.30.06 at 9:08 am

thelawgal, you have not yet proven that leaking such information about illegal methods is itself illegal.


thelawgal 01.30.06 at 10:10 am


I don’t understand. The program was highly classified; indeed, only a handful of people in the entire government knew about it. Leaking classified information is a crime: think Patrick Fitzgerald investigating the leaks about Valerie Plame, and, for that matter, the presently open investigation into who leaked the NSA surveillance program. What more “proof” do you need?


anon 01.30.06 at 12:12 pm

Model Rules of Professional Conduct, American Bar Association:

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certin to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(6) to comply with other law or a court order.


Barry 01.30.06 at 12:13 pm

As I understand it, classification can’t be used to cover up crimes. In addition, Goldsmith could have gone to members of Congress who were authorized for oversight.

As a last resort, he could have gone public, and stated that the administration was committing crimes, whose natures he couldn’t reveal due to classification.

All of which, if done during 2004, might have tipped the election.


anon 01.30.06 at 12:17 pm

Furthermore, government security classification explicitly may not be used to cover up criminal activity. It is not a crime to reveal wrongly classified information. C.f. Daniel Ellsberg.


anon 01.30.06 at 12:19 pm

Sorry for the redundancy, Barry. Our posts passed on the Information Superhighway.


Barry 01.30.06 at 1:18 pm

You got citation in my post!
Well, you got post in my citation!


Barry 01.30.06 at 2:33 pm

What really steams me about this, and about the NYT’s withholding of the NSA scandals, is that I now believe that there was enough dirt on Bush to have tipped the election. A lot of people deliberately kept silent when they could have made a difference; I give them little or no credit to speak up when it’s too late to make much of a difference.


thelawgal 01.30.06 at 10:43 pm


I think you have made quite clear what your real interest is; I gather that, in your view, the good of tipping the election against Bush is greatly outweighs any legal or ethical restriction.


Seth Edenbaum 01.31.06 at 12:14 am

Follow the links from Laura Rozen:
Why is it that conservatives seem to need the permission of their superiors to have an opinion about the constitutionality of WH policy?
And Lawgal, you haven’t answered the rest of us. Why not a loud and public – and perfectly legal- silence?
‘Courtesy’ to his old friends?



J Thomas 01.31.06 at 1:27 am

I think you have made quite clear what your real interest is; I gather that, in your view, the good of tipping the election against Bush is greatly outweighs any legal or ethical restriction.

What of it? We haven’t yet established that there was any legal or ethical restriction to balance against the great good of getting the bozo out of the presidency.

Why not provide something about legal or ethical restrictions?

If the stuff was wrong, making it highly classified shouldn’t protect it. Of course there’s always a risk being a whistleblower. If you report secrets and they don’t turn out to be illegal after all, you could get in a lot of trouble. But then, since Nuremburg we’ve said that “I was only following orders” is not an acceptable defense. So you could possibly get in trouble not reporting the crimes too.

So where’s the argument?


Barry 01.31.06 at 9:16 am

Lawgirl, it’s been made pretty clear by your citeless claims that you hold most dear the protection and extension of secret presidential power, despite the law.

So there.

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