Wise but Irresponsible Counsel on Detainee Policy Beyond Guantanamo

Jack Goldsmith, widely viewed as a hero for opposing the Cheney/Addington regime of legal error, offers wise but ultimately irresponsible counsel on detainees in today’s Washington Post.

Jack Goldsmith was the head of the Office of Legal Counsel from October 2003 to July 2004, and is widely viewed as a hero for opposing the Cheney/Addington reign of legal error. In today’s WaPo he reminds us that we need to view the problem of those detained during our counter-terror operations as a broad and continuing policy problem, rather than focusing just on Guantanamo.

This is wise counsel, but his op-ed is ultimately irresponsible.

At least three caveats are in order:

1) All Goldsmith does is name the problem and allege that any administration will “find and exploit legal loopholes to ensure it can keep up our defenses” — essentially saying the controversy is between a smug public and a concerned government, snarkily conflating the Obama administration with the Bush/Cheney/Addington administration without any evidence.

2) Goldsmith does not suggest what the legal regime for various classes of detainees should be, or what process should be put in place to arrive at one.

3) One wishes Goldsmith had aired his legal and policy concerns publicly on his resignation in 2004 rather than waiting until 2007 to publish The Terror Presidency.

Following his analysis, Goldsmith should uphold the rule of law by working to make the legal framework more realistic and effective, rather than tacitly endorsing extra-legal and even illegal activity by the government.