There Is No Room For Morality At Harvard

December 15, 2004

Re: 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 Colleagues:

It has been many weeks, months even, since the Ogletree and Tribe transgressions were disclosed. These transgressions involve dishonesty -- passing off someone else’s work as one’s own is dishonesty. During the period since disclosure, one has waited in vain for some word, some announcement, of action to be taken against this dishonesty by Harvard, our flagship university. The wait has been vain. Neither Dean Kagan of the law school nor President Summers has announced any action. (Technically, Professor Tribe, one notes, reports to President Summers, since Summers had the bad fortune to appoint him a University Professor, which is perhaps Harvard’s highest honor, only shortly before Tribe’s plagiarism was disclosed. This appointment would certainly have been unthinkable, one wishes to believe, after the disclosure.) Neither Summers nor Kagan have even so much as announced the formation of a committee -- often the academic methodology for nonaction -- to look into the Ogletree and Tribe problems.

True, Professor Ogletree said early on that he has been disciplined, but the claimed punishment is unknown. One begins to suspect he has received, at most, only a mere slap on the wrist. One equally begins to suspect that the minimal nature of the punishment (if any) is the reason Harvard is afraid to disclose it, lest there be an outcry by retrogrades -- including, of course, conservatives -- who think dishonesty should be heavily punished, especially because it strikes at society’s basic, if contemporaneously ignored, need for truth.

The continued silence of President Summers and Dean Kagan gives wings to what until recently has been only a slight suspicion. It promotes the idea that they are simply saying nothing -- are lying low -- in the hope that the story will simply disappear with time. They are, after all, old Washington hands. They cannot help but be familiar with the two-day-wonder nature of the media. They cannot fail to know, that is, that generally speaking the press jumps on a story for one or two days and then forgets about it as reporters and anchormen turn to and jump on other stories. They know that the febrile minds of the press, minds based not on principle but on sensationalism and the new new thing, are usually unable to stick with something for longer than 48 hours.

So our flagship university, like the rest of American society, which it purports to lead by example, appears to be condoning dishonesty instead of punishing it in clear, public and no uncertain terms. Bravo President Summers. Bravo Dean Kagan. Your failure to act accords with the dishonesty that is rampant in society today. And the actions of a flagship should accord with those of the society it leads, shouldn’t they?

While Harvard apparently does little or nothing about the disclosed dishonesty of Ogletree and Tribe, other stories have come out about other dubious goings on in Cambridge. Someone anonymously emailed this blogger a new Harvard Crimson article about more plagiarism on the Charles. A Harvard scientist apparently plagiarized -- more or less like mad, one gathers -- in preparing a grant application. (Who can blame him? -- money was at stake, after all.) That scientist, however, is no longer at Harvard. Of course, his case was different from those of Tribe and Ogletree: he was in science, they are in law. In science, truth is the desideratum. In law one is trained to prevaricate, obfuscate and becloud, although, to paraphrase Tom Lehrer on plagiarism, please always to call it zealous advocacy.

Then, too, there is the recently disclosed case of the newly hired Harvard Professor Jack L. Goldsmith III, yet another faculty member of the Law School, wouldn’t you know. Goldsmith’s hiring was approved by the law faculty in May 2004. His case may or may not involve deliberate falsehood by Goldsmith -- not enough is publicly known yet to make a firm determination, although on the basis of facts already known, this writer finds it hard to understand how the matter could not involve deceit. As well, the case almost surely involves what this writer, at least, considers serious immorality.

Goldsmith, a former law faculty member at Chicago and Virginia (only the most "elite" schools for this apparent transgressor), came to Harvard from the prestigious Office of Legal Counsel of the Department of Justice. That office -- which years ago gave us William Rehnquist and now has given us Federal Appeals Court Judge Jay Bybee, an author of a memo condoning torture -- writes legal memoranda that the White House and other Executive Branch offices rely on.
It seems that, while Goldsmith headed the Office of legal Counsel, he wrote a draft memo, dated March 19, 2004, saying that it is alright to transfer prisoners out of Iraq to other countries for interrogation. (These transfers contributed to the problem of "ghost detainees" -- prisoners who were kept off of official registers and were moved around inside prisons to hide them from the Red Cross.) The post-transfer interrogations were often held in countries where torture was used, apparently by the other countries’ personnel with the cooperation and, I gather, sometimes with the participation, and with the oversight, of the CIA. The other countries, and their personnel, were used for the torture in order to try to evade the strictures against torture of American law. Although Goldsmith’s memo did not itself discuss the torture, it has been reported that the CIA and other American agencies relied on his draft memo as a legal basis for the transfers to the countries of torture.

The question which arises from all this is whether Goldsmith III knew or had reason to know, when he wrote his transfer memo, that a purpose for which it was being requested, and a purpose with which he was cooperating, was the establishment of a purported legal basis for transferring prisoners to places where they would be tortured. In simple English, the question is whether Goldsmith III cooperated with a plan for torture. Before discussing this question, however, certain dates which may bear on it should be set forth, so that the reader can understand various claims and possibilities. In August, 2002, before Goldsmith III was in government at all, the Office of Legal Counsel wrote a secret memo justifying the use of torture. A month later, in September 2002, Goldsmith III joined the government; he joined the office of Department of Defense General Counsel William J. Haynes II. Goldsmith III was a special counsel for Haynes II. In March 2003, about seven months after he joined Haynes II’s office, a special working group established by Haynes II produced a new memo saying torture is legal. In October 2003, Goldsmith III became head of the Office of Legal Counsel. In March 2004, as head of OLC, Goldsmith III circulated his transfer memo. Thus:

1. August 2002: OLC writes a memo justifying torture.
2. September 2002: Goldsmith III joins the DOD office of Haynes II.
3. March 2003: Haynes II’s working group issues a memo justifying torture.
4. October 2003: Goldsmith III becomes head of OLC.
5. March 2004: Goldsmith III circulates his transfer memo which facilitates torture.

Now to the question at hand. Harvard professors have reportedly said that, when he was being considered by the law school, Goldsmith III assured Dean Kagan that he had not helped draft any "‘torture memos.’" More recently, Goldsmith III has told The Boston Globe that, in The Globe’s words, "he had nothing to do with the torture memos" written by OLC in August 2002 and by DOD in March 2003 The Globe quoted him as saying "‘I didn’t work on the August 2002 memo because I wasn’t in government then, and I didn’t work on the working-group memo at the Department of Defense." The Globe added that "He declined further comment."

So Goldsmith III obviously wants people to think he had zip to do with aiding a program of torture. But other facts that are already known make the situation look a little different. They make it look as if he almost surely must have known torture was under discussion and had been approved, therefore could well have known or at minimum suspected that torture was in fact being used, and accordingly must have known, or at least suspected, that his transfer memo was in aid of a program of torture. Consider:

1. Goldsmith III joined the office of Haynes II as special counsel the month after OLC drafted its torture memo. That memo went to Haynes’ office and was a subject of wide discussion in the government. Did Goldsmith never see the memo, never hear discussion of it or of torture, and never hear about the fact that, or suspect that, torture was going on in places outside of Iraq? Was he a special counsel in an office that was participating in discussions of torture, but he was nevertheless living under a rock, so to speak, and had no idea what was going on? This would be hard to believe.
2. About seven months after Goldsmith joined Haynes II’s office as special counsel, Haynes released a memorandum authorizing torture that had been prepared by his working group. Did Goldsmith never hear, during the entire seven months, that there was a working group, never hear what that group was working on, never talk with anybody in the group about any of the issues it was addressing? He was, after all, hired as a leading expert on international law, and torture, the subject of the group’s work, involves international law. Yet nobody ever spoke to him about torture and international law? We are supposed to believe he had no idea that torture was being approved and/or used? We are again supposed to believe that he was living under a rock as special counsel in Haynes II’s office?
3. While he was in Haynes II’s office, or while he was head of OLC, did Goldsmith never read either of the two torture memos even though they were major productions of those offices? Are we again supposed to believe that the answer to this is no? Are we supposed to believe that Jack III was therefore shocked, shocked when he learned the purpose for which his transfer memo had been used?
4. Jack III’s transfer memo was sent under cover of a transmittal letter addressed to four addressees. At least two of them, and perhaps three or even all four, had been intimately involved in the discussion of torture (and, as far as I know, only one of them may possibly have been against it.) The addressees were the general counsels of State, Defense and the CIA, and the Legal Adviser for National Security. As well, Jack III’s transmittal letter said the transfer memo had been requested by Alberto Gonzalez, the current nominee for Attorney General, who himself was up to his eyeballs in the whole torture business. Are we to believe Jack III did not know that at least two and maybe all of the addressees, plus Gonzalez were big players in the torture question?
5. In his transmittal letter, Goldsmith III said, "As always, it is important that you keep this draft opinion a very close hold." A very close hold? Isn’t this (somewhat ungrammatical) sentence the type of sentiment that surrounded the memos which concededly authorized torture? -- memos which the Executive kept as secret as possible for as long as possible, i.e., kept "a very close hold"?
6. In mid June 2004, Goldsmith’s resignation from the Department of Justice was announced. Subsequently, in mid October 2004, the Washington Post wrote an article on Dick Cheney’s top lawyer, David Addington, who, from what the Post said, seems to be a truly evil ideologue who nonetheless appears to stay in the background and is thus little known to the public. (If you want full details on this apparently quite evil character, pull up Dana Milbank’s article in the Post on Monday, October 11th, in Section A, at page 21.) Addington was said by the Post to have been "a principal author of the White House [?] memo justifying torture of terrorism suspects." He also was said to have been "a prime advocate of arguments supporting the holding of terrorism suspects without access to courts," a secrecy nut who "was instrumental in the series of fights with the September 11 Commission and its requests for information," and "a main backer of the nomination of . . . [torture monger Haynes II] for a seat on the US Court of Appeals for the 4th Circuit." The article on Addington further said that Addington’s desire for a more permissive policy on torture had led Goldsmith III to resign as head of the OLC in June: "Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department’s Office of Legal Counsel, led Goldsmith to resign after eight months on the job; Addington had sought to persuade OLC to take a more permissive line on torture."

If all this is correct, one might say that it is at least partly exculpatory of Goldsmith III, since he quit in June rather than go along with "a more permissive line on torture" than was previously taken. That would be to his credit. On the other hand, his hiring was approved by the law faculty in May, he was obviously speaking to Dean Kagan and, one presumes, other members of the Harvard law faculty before that, perhaps a month or two before that, and his resignation from DOJ was announced in June. If he was speaking to Harvard about leaving DOJ, and coming to Cambridge, in May, or even possibly in April or March, and if he was speaking to Harvard because of disputes with Addington over whether to adopt a more permissive line on torture, as reported, and if his resignation from DOJ was then announced in June, then what are the chances that he knew absolutely nothing about the existence of torture in mid March, when he circulated his transfer memo one half year and one and one half years after offices he joined or headed wrote memos justifying the torture that was taking place? The chances that he knew nothing of the torture in March would not seem to me to be high. Rather, it seems more likely by far that he must have known or suspected what was going on, had gone along with it nevertheless in March, but finally wouldn’t go along anymore when Addington wanted even worse to be done. And, at the very least, Jack III has some pretty fancy explaining to do about the old question of what did he know or suspect and when did he know or suspect it.

Despite all this, Goldsmith has been hired and retained by Harvard Law School, just as an author of a torture memo, John Yoo, has been welcomed back and retained by the University of California Law School (Boalt). Why has Harvard done this, and why, indeed, has it done it despite what apparently is serious opposition within the law school, especially from some professors of International Law, Goldsmith’s own specialty. There seem to be four basic reasons, which I shall canvass. But regardless of whatever else might be said for or against each of the four reasons, it strikes me that they all are just rationalizations for doing the immoral - - for immorally hiring and retaining somebody who was willing to support an immoral program of torture, an immoral program that violates both domestic and international law.

One of the reasons given for hiring and retaining Goldsmith is that he presents a different point of view, a conservative point of view, which should be represented in discussions at the Harvard Law School. Well, while I have always been in favor of diversity of viewpoints on a faculty, and our own faculty ranges from very liberal to quite conservative -- although we see no need to hire the right wing kooks who seem to be taking over the world -- I have lately begun to wonder about the intellectual diversity argument. The right wing has taken over the government, radio, part of television, a significant part of the newspaper world, and certain religiously based universities. Having taken over much of the world, is it really necessary that they be given a major voice in universities too? They’ve done pretty well without a major foothold at lots of universities. Why give these nuts still more power?

But that is just an inchoate view and an idiosyncratic one to boot. There is a much more important view in today’s real world. Let faculty diversity of viewpoint be the desideratum: Are we then supposed to think that the only conservative expert on International Law who is worthy of being hired by Harvard is one who appears to have cooperated with torture? Is Harvard unable to find any other excellent conservative expert, unable to find one who has not cooperated with torture? This is not bloody likely if you ask me.

Then there is the argument of Harvard’s highly conservative Charles Fried, who was Solicitor General under Reagan. According to The Globe, Fried told it that the Harvard faculty "would be ‘way out of our depth,’ if it tried to investigate peoples' activities in government." Fried possibly could be a little sensitive on this subject because, if I remember correctly, there were a lot of people at Harvard University who had no use for what he did while in government. But be this as it may, does Fried really mean to suggest that the faculty would be "‘way out of our depth,’" and could not act, when it has become fairly clear what someone has done? Would he say what he has said if, for example, the faculty candidate were John Dean, whose (mis)deeds are known? And what would Fried say about some liberal icon who may have been caught with his hand in the till or caught committing other misdeeds? Why do I find it hard to believe, for example, that if Bill Clinton were a candidate for the Harvard law faculty, the highly conservative Fried would still say the faculty would be beyond its depth if it inquired into what the candidate did in government? And lest the reply be that the faculty doesn’t yet know what Jack III did but it does know at least some of what Clinton did, let me say that enough is known now about Jack III to warrant concern and questions.

Then there is Dean Kagan. She is said to have told the Globe last week that Harvard determined that Goldsmith III is "‘an absolutely superb teacher and scholar,"’ "‘puts issues on the table that everyone focuses on and debates,"’ and is "‘a very agenda-setting scholar, and that’s exactly the kind of exciting scholarship that we want to have here.’" (Nobody could quarrel with her that he has helped put the issue of torture on the table, which I guess contributes to his being an agenda-setting scholar.) Dean Kagan summed up her paean to Jack III by saying "‘I’m as proud of this appointment as I could be."’ Wow! Heady stuff. Dean Kagan is as proud as she can be about appointing an agenda-setting scholar whose agenda appears to have included the furthering of torture. Terrific: I can hardly wait until Heinrich Himmler applies for a professorship at Harvard.

Dean Kagan’s comments seem to implicitly indicate a fourth reason for hiring and retaining Jack III. From her comments one gets the sense that she is hellbent on further building up the Harvard Law School (as if it needs this). She sees hiring guys like Jack III as a way to do this. And -- who knows? -- maybe she also sees a major university presidency for herself down the road if she establishes a reputation for getting guys with the degree of prior reputation possessed by Jack III. Becoming President of a major university would be a logical ambition, because this is a fairly common ultimate destination for deans of major law schools. The current presidents of Columbia and Cornell were each Deans of the Michigan Law school, Derek Bok was the Dean of Harvard, Benno Schmidt of Yale was the Dean of Columbia, Gerhard Casper of Stanford was the Dean of Chicago. And so on through a long list. Regardless of whether she holds such an ambition, however, Dean Kagan, apparently hellbent for whatever reason on further building up the Harvard Law school, is willing to take and keep Goldsmith III even if he was involved in a program of torture and was deceitful in apparently leading her to think that he had nothing to do with it. In other words, morality be damned. If a guy helps build up Harvard Law School’s scholarly reputation, it will take him regardless of what he may have done.

You know, conceivably the hellbent idea might also explain a lot about why we have heard nothing from Dean Kagan about punishments for Professors Tribe and Ogletree. You cannot build up a law school by severely punishing your superstars, can you? I wouldn’t think so. Better to instead make some initial pious, disapproving remark, as Dean Kagan did in the Ogletree case, and then keep silent so that the whole matter will die away, a strategy that one might understandably conclude Dean Kagan is following.

As for Jack III, he seems to be following the same strategy. When his transfer memo came to light in the Washington Post in October 2004, Jack III refused to comment to that paper. When The Globe was preparing its recent article about him and Harvard, he is said to have declined any comment beyond what was quoted above. Jack III obviously is no dummy. He obviously is smart enough to know that here the way of de facto absolution for sin is to make one brief comment denying any wrongdoing, say nothing more, and then, like Kagan and Summers, let the problem die the death of silence because the media has the attention span of a gnat.
You know, when this blog speaks critically of someone, the person is invited to reply if he or she wishes. That, incidentally is how Professor Tribe came to grief, I am almost sorry to say. Remarks he made in The Boston Globe were criticized here, he was invited to respond if he wished, he did respond, and someone unknown read his response, got aggravated, and blew the whistle on his plagiarism. Because it is this blogger’s inveterate practice to invite persons who have been criticized to respond, invitations will be issued, by e-mail transmittal letter, to Dean Kagan, Professor Goldsmith, and President Summers. But because they all seem to be following the code of silence -- isn’t this called omerta or something? -- as a way of trying to have all the matters of dishonesty at Harvard blow over, it’s dollars to doughnuts that they will not respond. Does anyone want to bet his or her doughnuts against my dollars, say a mere two doughnuts -- but they have to be Krispy Kremes -- against ten bucks?*