Open Source Analysis and After Action Analysis; The Jack Goldsmith Confession

I try to post pieces that people are not likely to have heard about and that offer an opportunity to make a difference to what happens. So readers of this site saw open source analysis undercutting the campaign to blame the Hariri assassination on Syria long before the UN conceded that the investigation had been flawed. That analysis made a difference, no matter how tiny, in keeping us off the path to demonizing Syria.

For that reason, I generally don’t post the widening evidence that the Bush Administration systematically undermined civil liberties purely to seize power. I knew that a few days after 9/11 when Cryptome.org reported that the Department of Justice had effectively seized the server of Al “Grandpa Munster” Lewis on the doubtful argument that it was shared with IRA Radio (which, as far as I have ever been able to determine, had nothing to do with terrorism of any kind, much less of the kind that threatens the United States). The point is that DoJ threatened the ISP, which then shut down political discussion.

There was no due process. There was no obvious reason to focus on virtual unknowns… except this: to create a precedent and a climate of fear. And so it was apparent that these were the goals of this exercise.

The trick in analysis is to differentiate erroneous reports and anomalies from systematic policy.

But as Avedon reminded me, it’s also important to do what one might call “after action analysis:” to review what we learn retrospectively. And so, consider in detail the key points that Jeffrey Rosen  and Glenn Greenwald extract from Jack Goldsmith’s book, “The Terror Presidency.” Goldsmith was a legal adviser in the DoD and later served in the Office of Legal Counsel in DoJ. He continues to approve of most of the Bush policy and now teaches at “liberal” Harvard.  

He advised/reported as follows:

• ca 2002: advised that the International Criminal Court might regard official actions as war crimes
• Late 2003: challenged John Yoo’s memos on torture
• Late 2003: reaffirmed the applicability of the Fourth Geneva Convention to accused terrorists and insurgents and was told by Addington that “the president has already decided” that it did not apply
• Late 2003: unofficially withdrew the Office of Legal Counsel’s support of the first Yoo memo
• Late 2003: heard Addington angrily deny an NSA request to review the legal reasoning of the Office of Legal Counsel on secret surveillance
• Late 2003-early 2004: challenged the legality of warrantless surveillance
• Early 2004: witnessed the browbeating of John Ashcroft in his hospital bed over the surveillance program
• Early 2004: Heard Addington call the FISA court “obnoxious” and saying, apparently approvingly, that it would be abolished if there were any further acts of terror
• Early 2004: officially withdrew the first Yoo torture memo
• Early 2004: was told by Gonzales that the reasoning of the first Yoo torture memo was defective
• Mid 2004: advised going to Congress to remedy the legal foundation of the basis of detention claimed for Hamdi
• Throughout Goldsmith’s tenure: others produced preposterous legal reasoning to justify illegal acts, then classified the analysis to prevent its review
• In the Office of Legal Counsel, observed that Gonzales, Addington, Haynes and Yoo formed a “war council” devoted to overthrowing laws that they felt inhibited the Executive

So: thanks to Jeffrey Rosen and to Glenn Greenwald and all those who document the confessions of those who participated in the crimes against the Constitution committed by the Bush Administration. Analysis is not everything.