Torture Memos - OLC Head Jack Goldsmith's Withdrawal of The Torture Memos

OLC Head Jack Goldsmith's Withdrawal of The Torture Memos

After Bybee resigned from the Department of Justice in March 2003 for a federal judgeship in Nevada, Attorney General Ashcroft vetoed the White House's choice of John Yoo as his successor. Yoo was acting head of OLC for several months.

Jack Goldsmith was appointed to succeed Bybee as head of the Office of Legal Counsel and took office in October 2003. A professor at the University of Chicago Law School before government service, he had previously been legal adviser to William Haynes, the General Counsel of the Department of Defense.

In the spring of 2004, the Abu Ghraib prisoner scandal broke into the news, and in June 2004, the Bybee memo was leaked to the press. Based on his review of the Torture Memos, Goldsmith concluded that they were legally defective and had to be withdrawn. In his book The Terror Presidency (2007), Goldsmith called them "cursory and one-sided legal arguments". Goldsmith says he had decided to revoke what the CIA had been calling its "golden shield" against prosecution six months before the abuses at Abu Ghraib were revealed. He was at work on the problem when the scandal and the leak of the memo precipitated the final decision.

When Goldsmith brought his decision to White House Counsel Alberto Gonzales and Vice Presidential Counsel David Addington, Goldsmith wrote, Gonzales seemed "puzzled and slightly worried", while Addington "was just plain mad". Goldsmith submitted his resignation at the same time.

Reflecting afterward on the Torture Memos as a cautionary tale, Goldsmith wrote in his 2007 memoir:

How could this have happened? How could OLC have written opinions that, when revealed to the world weeks after the Abu Ghraib scandal broke, made it seem as though the administration was giving official sanction to torture, and brought such dishonor on the United States, the Bush administration, the Department of Justice, and the CIA? How could its opinions reflect such bad judgement, be so poorly reasoned, and have such terrible tone?... The main explanation is fear . Fear explains why OLC pushed the envelope. And in pushing the envelope, OLC took shortcuts in its opinion-writing procedures.

Goldsmith's tenure at OLC was ten months. He resigned he said, for several reasons but the main one was that, as a result of withdrawing the Torture Memos, "important people inside the administration had come to question my ... reliability." He had been unable to finish replacement legal opinions, so that task fell to his successors. But, later that year, an opinion was issued by his successor at the OLC, that changed the very narrow definition of torture from the original legal opinions of the Bush administration on this topic.