Thursday, December 16, 2004

Re: Scott Horton's Response To There Is No Room For Morality At Harvard

Dear Dean Velvel,

An interesting set of questions about Jack Goldsmith, but let's not forget the presumption of innocence. Prof. Goldsmith should not be taken down simply for serving in an Administration that's made some legal policy mistakes. Most administrations do make some mistakes, some make real doozies, and government service is a noble thing.

The one Goldsmith memo which has become public is the March 19, 2004 memo on removal of certain "protected persons" from Iraq. It came out in a draft form, so we do not necessarily know the final version. This memo was studied carefully by several committees at the Association, including my Committee on International Law and Miles Fischer's Committee on Military Affairs and Justice. In sum, we had the same opinion of it. First, it reflects responsible and high quality scholarship. Second, its conclusion on the first point, concerning illegal aliens, is certainly correct. Third, its conclusion on the second point involving "temporary relocations" presents plausible arguments, but on balance is wrong in that it is inconsistent with the spirit and letter of GCIII(49). However, we also felt that the memo was written in language which correctly communicated the problematic nature of the analysis, and it was therefore consistent with high professional standards governing documents of this sort. We therefore saw no basis to condemn Prof. Goldsmith based on this memo.

As to his involvement in the process relating to the "torture memos," there may be fair questions. We understand he denies involvement. One source we interviewed noted him as present at a working group meeting. But that in and of itself is no basis to tarnish him with the working group's product. Until evidence surfaces which links him to some serious errors, it seems inappropriate to be attacking Prof. Goldsmith. Surely this is a target rich environment and there are far better suited objects for your criticism.

Scott Horton
Chair, Committee on International Law
ABCNY


December 16, 2004

Re: Scott Horton’s Response To "There Is No Room For Morality At Harvard"
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com
cc: Members of The Harvard Corporation
Members of The Harvard Board of Overseers

Dear Mr. Horton:

I greatly appreciate your response to the blog on Jack Goldsmith III. You of course disagree with me in significant part, and some of the disagreement is strongly worded, but, not surprisingly, you have very important things to say, including important information that you impart. So your response is being sent to recipients of the blog, and is being posted on the blog. Critical of me or not, I appreciate the fine contribution you have made.

You know, sometimes I just post a response, without commenting on it. Indeed, in recent weeks there have been some quite critical ones posted without comment, notwithstanding that I think they are open to devastating retorts. But because your views are important, and in some cases have retriggered thoughts that have been running around in my mind for a long time -- for years even -- I want to make some remarks about a few points you made. Sometimes my remarks will not necessarily represent disagreement with you; at other times they do represent disagreement.

There is a pertinent idea here which has long been in my mind. You say that experts in international law, yourself included, think that Goldsmith’s memo "reflects responsible and high quality scholarship." "[I]ts conclusion on the first point . . . is certainly correct," you say, and "its conclusion on the second point . . . presents plausible arguments" even if it "on balance is wrong." The memo was, in the judgment of experts, yourself included, "consistent with high professional standards governing documents of this sort." I accept the view of yourself and other experts that, professionally speaking, the memo is at all times highly competent, even where wrong. I am not an international lawyer, don’t want to be one, and have no reason or desire to challenge the "verdict" of professional competence. What bothers me is something different, but deeply related.

As even fledgling lawyers know, as I certainly know from 42 years as a lawyer, and as I am sure you know, a good lawyer can think of highly competent professional arguments on both sides of any question: If he is a really good lawyer, as Goldsmith is said to be, he can perhaps think of good arguments on three or even four "sides" of an issue. The arguments will all be professionally competent. That is why mere professional competence no longer impresses me. (Lawyers who did the misdeeds for the tobacco companies, after all, were professionally competent. So were O.J. Simpson’s lawyers. So are most lawyers for malefactors.) What impresses me, rather, is whether a professionally competent lawyer acts with what people at our school tend to call "a good heart," whether he or she acts in a moral way rather than to further bad conduct.

One could say that my view of this matter is a rejection of the bar’s general position on a lawyer’s responsibilities. That would be true. No matter. After 42 years of seeing lawyers on the frontline for evil (as well as others being on the frontline for good), this is how I feel about it. And, given history, with good reason, I think.

Professor Goldsmith, highly competent though his memo may be in strictly professional terms, gives many signs of having been on the frontline for evil. In fact, one could think that information your group elicited proves the case. You say that "one source we interviewed noted him as present at a working group meeting" on the torture issue, although "we understand he denies involvement" in the torture memo. If your source is correct (which you at least seem to believe) Goldsmith’s presence at a working group meeting on the torture question would certainly seem to answer one of the vital questions raised in my blog: did Goldsmith know or suspect that torture was under consideration when, a half year after the working group’s memo was circulated, he circulated his transfer memo that facilitated torture. If he was at a working group meeting, he must have known that torture was a subject under consideration.

With respect, my point was not that Goldsmith did or did not participate in writing the torture memos. (Although I admit to being surprised to hear that he apparently was at a working group meeting, I was naive enough to think only that he must at least have heard of the working group and its product.) Rather than thinking he helped write a torture memo, my point was that he must have known or suspected that torture was implicated when he wrote his transfer memo facilitating the torture. If he did know or suspect that torture was implicated and would be furthered, as I suspect he did, and as his presence at a working group meeting would surely tend to confirm, then I would have to say that he did not do the moral thing, nor the thing that a lawyer with a good heart would have done, when he used his professional competence to find and write arguments that facilitated the transportation of prisoners to other countries for torture. I do not respect such facilitating action, regardless of its professional competence (just as one does not respect what came to be called the "German judges" who went along with the Nazi regime). I would rather, respect someone who would say, "Yes, because I am professionally competent, I, like any accomplished lawyer, can find and write competent legal arguments that support your transfer of prisoners to countries of torture. But I won’t do this because I oppose the use of torture, the more so when it violates domestic and international law."

Another point I wish to make to you is this. You say "this is a target rich environment and there are far better suited objects for your criticism" than Professor Goldsmith. Well, I am not a reporter. I am a law school dean. So I do not go out -- and haven’t the time to go out -- and dig up information on people. My contribution, if any, lies in analysis and philosophy, using facts uncovered by others. To be informed about "objects for [my] criticism" in order to bring analysis and philosophy to bear, I inevitably have to rely on facts the media uncovers and what investigating groups like yours find out. If the media were more assiduous in finding out information about the malefactors to whom you obviously seem to be referring, I would write more criticism of them.

Yet it is also true that I do not agree with your apparent assumption that one should lay off of Jack Goldsmith because he was only a small fish in the greater scheme of things. In a law riven -- a law ridden -- country like ours, the legal memos of the Goldsmiths, the Hayneses, the Bybees, etc. are depended upon to provide legal cover for evil. When the lawyers provide those memos, they are aiding evil and should be called to account no less than the Rumsfelds, Carbones, Cheneys, Bushes, et. al. -- the big cheeses -- who use those memos for cover. (As I am sure you know, the whole question of people relying on lawyers’ opinions as justifications for bad acts is a major problem today, especially in the tax and financial worlds.) Yet not only are these government lawyers who provide legal cover for evil not being called to account, they are, like Bybee and Haynes, being rewarded by nominations to be federal judges, or by nomination to be Attorney General, like Gonzalez, or by a professorship at an "elite" school, like Goldsmith.

Finally, you say that "government service is a noble thing." You know, there was a time in the 1960s when I would have agreed with you wholeheartedly. But in the last 35 years or so, through both Democrat and Republican administrations, it has seemed that government service, as a lawyer or otherwise, is often not such a noble thing at all. It has seemed, rather, that government service often is used as a vehicle for enabling people to line their pockets as soon as they leave government, and, to facilitate this, government officials and lawyers are willing to do whatever it takes while still in government. The days of people of rectitude like Henry Stimson or, more latterly, Cy Vance, seem long gone.

In conclusion, let me say that, notwithstanding some disagreements with what you have said, I greatly appreciate receiving your responses to blogs. Your responses, in my judgment, make a real contribution. I hope you will continue sending them.

Sincerely yours,

Lawrence R. Velvel

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