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Harvard hire's detainee memo stirs debate

A new Harvard Law School professor who wrote a controversial memo for the Bush administration on the handling of prisoners in Iraq has triggered angry debate among his colleagues, some of whom charge that the school faculty did not check his record thoroughly enough before hiring him last spring.

Jack L. Goldsmith III, a specialist on international law who worked in the Pentagon and the Department of Justice, was approved by the faculty at a meeting in May. At the time, the US government was embroiled in the scandal over abuse of Iraqi prisoners in Abu Ghraib, and secret memos from the Pentagon and the Department of Justice establishing a permissive US policy on torture were being reported in the media. Goldsmith had worked in two of the departments that produced the memos, and while his appointment was pending, several Harvard law professors questioned whether he might have helped write them.

Law school dean Elena Kagan responded that Goldsmith had assured her he did not help draft any ''torture memos," according to professors who were at the meeting where he was approved, and more than 80 percent of the voting faculty supported his hiring.

In an interview this week, Goldsmith said he had nothing to do with the torture memos, and no evidence has appeared suggesting otherwise.

Yet Goldsmith has been dogged by opponents at the law school, who have continued to argue among themselves over his conservative interpretation of international law and criticized their Harvard colleagues for failing to demand a full investigation of his government work.

''I believe that the faculty was seriously at fault for not inquiring more deeply, prior to making this appointment, into any role Jack Goldsmith may have played in providing legal advice facilitating and justifying torture," said professor Elizabeth Bartholet, who voted against his hiring.

Their opposition gained steam after a new Department of Justice memo appeared in The Washington Post in October, long after Goldsmith had accepted the Harvard job. Dated March 19, 2004, and bearing Goldsmith's name, this draft memo advised the CIA that it was legally acceptable to transfer prisoners out of Iraq to other countries -- a practice less controversial than torture, but still troubling to many specialists on international law, who consider such transfers a violation of the Geneva Conventions. News of the memo also triggered some complaints from alumni to Kagan and professors.

Several law professors interviewed for this story said Goldsmith is a highly respected scholar known for his position that international law should not always be binding on the United States.

The ongoing opposition to Goldsmith by a small group of opponents at the law school is a sign of an increasingly intense division within the field of international law, pitting scholars who support the authority of international agreements against skeptics like Goldsmith. The debate has gained urgency as government attorneys play a role in determining how detainees are treated in Iraq, in Afghanistan, and at the US naval prison at Guantanamo Bay, Cuba.

Goldsmith, 42, formerly a law professor at the University of Chicago and the University of Virginia, became special counsel to Defense Department general counsel William J. Haynes II in September 2002. In October 2003 he became an assistant attorney general, heading the Justice Department's Office of Legal Counsel, or OLC, which writes legal opinions for the White House and other parts of the executive branch.

Two of the most controversial memos on torture came from those offices. In one, the OLC argued in August 2002 -- a year before Goldsmith arrived in that office -- that torturing suspected Al Qaeda members abroad as an interrogation tool ''may be justified" and that international laws against torture ''may be unconstitutional."

The second memo, from March 2003, came from a Defense Department working group established by Haynes. It made similar arguments, saying legal prohibitions against torture are ''inapplicable to interrogations undertaken pursuant to [the president's] commander-in-chief authority."

The text of the two memos had not become public when the Harvard law professors voted on Goldsmith, but news accounts had reported that ''secret legal opinions" from both departments had backed harsh interrogation techniques.

Goldsmith said in an interview this week that he was not connected with either memo. ''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," he said. He declined further comment.

The Washington Post quoted unnamed officials in October saying Goldsmith, who left the OLC in July, resigned from that office because a lawyer working for Vice President Dick Cheney ''sought to persuade OLC to take a more permissive line on torture."

Goldsmith, author of noted books and articles on international law, has moved into his office at Harvard and is scheduled to begin teaching in January. Kagan said Tuesday that ''I'm as proud of this appointment as I could be."

Goldsmith's ''work was lauded by a great many people, and we determined that he was an absolutely superb teacher and scholar," she said. ''He puts issues on the table that everyone focuses on and debates, and he's done that in a very short career. He's a very agenda-setting scholar, and that's exactly the kind of exciting scholarship that we want to have here."

Three of the five international-law specialists on the school's faculty opposed Goldsmith during the hiring process -- Detlev Vagts, David W. Kennedy, and Henry J. Steiner, according to faculty sources. All three are considered liberals, and some view Goldsmith's hiring as an effort for ideological balance.

Steiner declined to comment for this story. Kennedy said the question of Goldsmith's direct involvement in torture memos was less important than his general position on international law. The memos, he said, ''reflected ideas developed by a group of academic lawyers in and out of government in which Jack has played an active role."

The memo that surfaced in October, initialed by Goldsmith, offered an unusual interpretation of the Geneva Conventions that allowed the CIA to take detainees out of Iraq for interrogations, although it noted that prisoners still would retain rights to humane treatment. The memo was sent from Goldsmith to White House counsel Alberto Gonzales. The CIA has since come under fire for holding ''ghost detainees" -- people who were captured in Iraq and taken elsewhere, and others whose status was not disclosed to the Red Cross as required under the Geneva Conventions.

Vagts, one of the most vocal opponents of Goldsmith's hiring, found the memo ''heartless in tone as well as ahistorical in content," he wrote in an e-mail to a colleague.

In an interview, Vagts said the Fourth Geneva Convention was written with Nazi deportation practices in mind and was meant to prevent the kind of transfers that Goldsmith's memo authorized.

The only reasons to take prisoners out of Iraq, he said, would be ''to put pressure on them" without the Red Cross around to protest, or ''turn them over to somebody else that would be even more ruthless." He also noted that Goldsmith ''may have been hoodwinked by the CIA."

Others see it quite differently. Professor Charles Fried, who served as President Reagan's solicitor general, said that Goldsmith has done outstanding work and that the faculty would be ''way out of our depth" if it tried to investigate people's activities in government.

William P. Alford, a vice dean who heads Harvard's program in international legal studies and led the subcommittee that identified Goldsmith for the job, said many top scholars in the field recommended him.

''I so much like the idea of somebody who thinks differently than I do, who is smart and open-minded," Alford said of Goldsmith.

''You can have debates about ideas, and that's what this place is supposed to be about."

Marcella Bombardieri can be reached at bombardieri

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