Saturday, October 9, 2010

Failing to deal with torture and rendition

The New York Times today has a deplorable op-ed by Jack Goldsmith, former assistant attorney general under G.W. Bush, and now professor at Harvard Law, titled "Don't Try Terrorists, Lock Them Up." In discussing the challenges faced by the Obama administration in convicting Guantánamo Bay detainees, he matter-of-factly notes that some testimony was inadmissible because it would not have been available without the CIA interrogating the defendant at a secret overseas prison. The lesson, according to Goldsmith, is that the Obama administration should embrace what the Bush administration did so much of: "military detention without charge or trial."

Two basic problems here. First, this seems to imply that the Bush administration was sending people for "aggressive interrogation" (Goldsmith's term) to secret prisons run by the CIA without any intention of ever bringing them to trial before they had any evidence that such people qualified as candidates for indefinite military detention.

Second, Goldsmith suggests that the problem lies in the Obama administration's attempts to introduce the rule of law into the situation. However, his own argument makes it clear that the real problem is not that the rule of law cannot function in war, but rather that the Bush administration, with its secret prisons and "aggressive interrogation," flouted national and international laws, so that the subsequent application of the rule of law has become nearly impossible.

One might hope for some kind of mea culpa from a former high-ranking legal official in the administration that not only shot itself in the foot by these tactics, but is making things very difficult for its successor, but it appears that is too much to hope for.

For a far more interesting (and much less self-serving) article on the challenges facing the Obama administration (and more generally, the legal system) in dealing with Guantánamo, see David Cole's article in the current New York Review of Books, "What to Do about Guantánamo?"

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