Goldsmith argues against prosecution for torturers.

There's an astonishing article by Jack Goldsmith in the Washington Post putting forward the argument that the new Obama administration should do nothing to investigate allegations that the Bush regime engaged in torture.

He tells us:

Second-guessing lawyers' wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgement.

In other words, it would be more dangerous if someone were actually to demand that lawyers advising the government should tell them what is legal rather than what they want to hear.

After all, there is no-one in their right mind who believes that John Yoo's definition of torture would hold up in any court of law, and there are many who suspect that even John Yoo doesn't believe that but, anxious to please the Bush administration, he told them that what they wanted to do was legal.

Most of us would regard Yoo's behaviour - substituting what the administration wants to hear in place of what the law actually states - as abhorrently dangerous, but Goldsmith says that the Obama administration should avoid any investigation lest lawyers become "excessively cautious".

Goldsmith then quotes Ben Graham stating, "We are not living in times in which lawyers can say no to an operation just to play it safe."

Telling President Bush that waterboarding was illegal would be, to both Goldsmith and Graham, "playing it safe" which they regard as a dangerous thing in the present climate.

It's quite astonishing to see how little this mindset has actually changed. They say that what happened was regrettable, but immediately caution against prosecution in case it ever needs to be done again.

When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department. But these safeguards failed, and the CIA is once again mired in investigation and controversy.

And, of course, he pretends that his concern is for individual officers at the CIA, who sought legal assurances and were given them.

I think he's rather missing the point here. The people who should be prosecuted are the people who gave the orders for torture to be carried out, not the individual grunts who did the dirty work.

And the people who gave those orders are high in the Bush administration.

And, as President Carter has pointed out, Bush could only state that he was not engaging in torture because he was inventing his own definition of what torture was:

But Mr Carter, 84, said: "You can make your own definition of human rights and say, 'we don't violate them'. And you can make your own definition of torture and say 'we don't violate it'.

"The president is self-defining what we have done and authorised in the torture of prisoners."

Goldsmith is arguing that Bush - and any future US president - should be allowed to do this as the times we live in are "too dangerous" for presidents to be straight jacketed by the law.

That's the exact mindset which led to the US engaging in torture in the first place.

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Tags: Goldsmith, Bush, torture, Obama, prosecutions