Tuesday, January 31, 2017

Jack Goldsmith: Yates Was Wrong

Goldsmith's arguments are reasonable, though he could, of course, be wrong about facts in some way I don't see.

[Whoa...I just realized that Lawfare Jack Goldsmith is Bush OLC Jack Goldsmith...so...uh...grain of salt?  Look how easily ad hominems come to mind... I have a non-standard view of ad hominems, though, which was first suggested to me by one of my CT students just last semester: in cases like this, the force of ad hominems never goes away (which is, I take it, what the standard view says happens): rather, those considerations are swamped / outweighed by the value / force of the arguments... ]

[But wait, there's more!:  I think ad hominems are permissible here because (as I acknowledge above) I don't know enough about law to know whether or not I'm being bamboozled here--e.g. whether something crucial is being left out. Since I have antecedent good reason to be suspicious of Goldsmith, I have reason to go to yellow alert when thinking about this argument.]


Anonymous Lewis Carroll said...

I probably disagree with Jack Goldsmith on all kinds of things, Winston.

But I do believe he has personal integrity, and his legal opinions seem to flow from how he genuinely understands the law. In fact, at a very difficult time to do so, he was one of the only voices in the Bush administration pushing back on the ad hoc legal rationalizations for what Cheney and co had decided they wanted to do. From Jane Mayer's THE DARK SIDE:

"Goldsmith set aside the big moral questions and instead focused on the law.But he found the two interrogation memos highly disconcerting from this standpoint as well. They were quite similar. Both had clearly been written to circumvent the 1994 torture ban. Both displayed what New York University law professor Stephen Gillers, a specialist in legal ethics, called "the veneer of serious scholarship (abundant footnotes, many citations, long dense paragraphs) to create an aura of legitimacy for near-death interrogation tactics and unrestrained executive power" But beneath the surface, both of Yoo's interrogation opinions had the same flaw. As Goldsmith wrote in his account, The Terror Presidency, Yoo's assertions of absolute power for the commander in chief in dictating the treatment of wartime captives "had no foundation." It was so extreme it would mean the Uniform Code of Military Justice, and all laws written by Congress regulating warfare, were illegitimate. In Goldsmith's view, Yoo's legal guidance had "no basis in prior OLC opinions, or in judicial opinions, or in any other source of law." Yoo's adamant assertions - which were guiding the United States government in prosecuting a global war - were simply unsubstantiated."

He could still be wrong here, obviously, either in legal theory or on the facts. But personally, I don't think he's a hack.

10:03 AM  
Blogger Winston Smith said...

Thanks LC, duly noted.

I only remember(ed) Goldsmith being in the OLC and nothing more.

10:11 AM  
Anonymous Old Gringo said...

I think Goldsmith is right that her memo suggests that Yates was undecided about the legality of the EO. Yates said she wasn't convinced of the EO's legality--not that she thought it was illegal. Goldsmith says that although the AG has the authority to choose not to defend a presidential action, the standard is that the DOJ should defend a presidential action if there is a reasonable basis to believe the action is legal. If that's right, then it looks like this was a way for Yates to protest Trump.

I'll just suggest an alternative reading of the Yates memo: perhaps she didn't believe there was a reasonable basis. She isn't explicit in the memo, and if she thought it was clearly illegal she should have said so to avoid confusion. But she does say that taking into considerations facts beyond what OLC considered was relevant to her decision. So there is a possibility that her legal position was that, taking into account all of the statements about this being a *Muslim* ban, there is no reasonable basis to believe the EO was legal. Maybe we should wait and see what else she or others at DOJ say about this before reading too much into her very short memo.

7:43 PM  

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