This is going to be a really weedy post trying to explore what was going on with just about the only named opinion that Jack Goldsmith wrote at OLC that has gotten focused attention–a March 19, 2004 one cataloging the protected status of different kinds of people captured in Iraq. I will return to the significance of it in a future post. But this post shows that the topic of Goldsmith’s opinion appears to have been debated up until the time he left DOJ–and after he left, another opinion served to authorize the rendition of detainees from Iraq.
Addington objects to Goldsmith’s decision that Iraqi terrorists have protection under Geneva Convention
As Goldsmith wrote in Terror Presidency, this issue is one of the first he dealt with after he became OLC head in October 2003.
“Jack,” Gonzales said after cursory congratulations on my new post, “we need you to decide whether the Fourth Geneva Convention protects terrorists in Iraq. We need the answer as soon as possible, no later than the end of the week,” he added in his deadpan, nasally Texas drawl. (32)
After Goldsmith concluded in October 2003 that Iraqi members of al Qaeda were protected under the Geneva Convention, David Addington went apeshit.
“They’re going to be really mad,” [Patrick] Philbin told me as he and I were driving from the Justice Department to the White House to explain to Gonzales and Addington why the department that Iraqi terrorists were protected. “They’re not going to understand our decision. They’ve never been told ‘no’.”
Philbin was right.
“Jack, I don’t see how terrorists who violate the laws of war can get the protections of the laws of war,” said Gonzales, calmly, from his customary wing chair in his West Wing office.
“The President has already decided that terrorists do not receive Geneva Convention protections,” [Addington] barked. “You cannot question his decision.” (41)
Goldsmith went on to develop his oral advice into a formal opinion. And while he drafted that on March 19, 2004, he never finalized it.
Debate over detainee status between June and October
Now, as I’ll show below, the memo (or what was explained to be the memo) caused a bit of a firestorm in October 2004. But before that happened, the OLC Vaughn index shows, there appear to have been several rounds of discussion on the issue.
While the Vaughn index doesn’t list the March 19 version of this memo, it appears to show what might have been a June 29, 2004 version addressing the same topic.
This is a ten-page draft, from OLC to CIA. It is confirming legal advice, which was initially given orally, on whether a detainee is considered a protected person if involved in counterterrorism acitivies and captured.
Only this June 29, 2004 memo is 10 pages, whereas the March 19 memo is 23 pages.
Then, the following day, there is what may be CIA’s comments on that draft (with one additional page and hand-written notes), though this description doesn’t mention protected status.
This is an eleven-page document with handwriten comments, from the CIA to OLC, commenting on a draft letter regarding terrorism and interrogation of detainees.
On July 2, the same day Scott Muller wrote Jim Comey to tell him what had been approved after he and John Bellinger left a principals meeting discussing the interrogation of one particular detainee, CIA sent a second short memo describing the CIA securing custody of a detainee.
This is a two-page memo with a fax coversheet, providing legal advice regarding the CIA securing custody of a detainee and use of interrogation methods.
On July 14, three days before Goldsmith’s accelerated departure (remember, he originally intended to stay until August 6, but left on July 17 instead), there are nine copies (documents 50-58) of a one-page OLC memo written to the record (that is, not sent to the CIA per se) addressing whether a captured member of “a terrorist network” is legally protected.
This is a one-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.
The number of copies written to the record suggests there may have been a face-to-face meeting on the subject after which the copies of the draft discussion were retained by OLC.
On July 15 (two days before Goldsmith left), there is a 5-page memo on the same subject.
This is a five-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.
On July 21 (four days after Goldsmith’s departure), there is a 10 or 11-page document plus fax cover sheet from the White House to DOJ.
This is a ten-page document with handwritten marginalia and a fax cover sheet, which contains pre-decisional communication regarding detainees, that was sent from the EOP to the DOJ.
This is the only document in this set written by the White House.
After the White House document (which may or may not relate to the protected status of detainees) the dated OLC communication in the Vaughn Index consists exclusively of advice about torture techniques for several months.
Then, on October 4, there are a 4-page and a 5-page OLC memo written to the record “from OLC regarding application of international law, as it relates to detainees.”