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Harvard "Witch-hunt" By: Daniel J. Hemel
The Harvard Crimson | Tuesday, December 14, 2004


In the first month since he arrived in Cambridge to assume a tenured post at the Law School, Professor Jack L. Goldsmith has received a frosty welcome from a small faction of faculty who have questioned his scholarship and called for an investigation into his work as a Bush administration official.

More than 80 percent of the school’s faculty voted by secret ballot to confirm Goldsmith’s tenure appointment in the spring, and longtime Harvard Law professors have rallied to defend their new colleague as well as to praise his academic credentials.

But a small group of senior faculty members who voted against Goldsmith’s appointment have chosen to go public with their criticism of the professor.

Before he stepped down from his post as a U.S. assistant attorney general this summer, Goldsmith penned a March draft memo arguing that Central Intelligence Agency officials could transfer Iraqi detainees out of their native country for interrogation without violating the Geneva Convention.

The memo said that detainees would still have to be treated in accordance with international humanitarian norms. But Goldsmith’s position has drawn fire from human rights activists and some scholars who argue that the memo marks a dramatic reinterpretation of the 1949 treaty, which safeguards the rights of prisoners of war.

Goldsmith previously worked as a special counsel at the Defense Department when Pentagon lawyers drafted one of the two so-called “torture memos” that offered a legal justification for the severe treatment of detainees.

But Goldsmith said in an interview yesterday that he was still a professor at the University of Chicago when the first of the “torture memos” was drafted, and he said he had no role in the writing of the second.

Elizabeth Bartholet ’62, the Wasserstein professor of public interest law, was quoted yesterday in The Boston Globe saying 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.”

Goldsmith said that he is legally barred from commenting about the third memo, the March draft on removing detainees from Iraqi soil. “I can talk about the legal arguments, but I can’t talk about the memo itself or its context,” Goldsmith said.

Though Goldsmith has yet to unpack the cardboard boxes piled halfway to the ceiling of his Griswold Hall office, he already raves about his new academic home. “This is the best place in the world—both in terms of faculty and students—to study international law,” he said.

Only one professor of about 30 contacted by The Crimson for comment would speak on-the-record against the school’s decision to hire Goldsmith. Detlev F. Vagts ’48, who is the Bemis professor of international law, said in an interview yesterday that he voted against the appointment because of “basic differences” with Goldsmith’s scholarly method.

The Globe reported that Henry J. Steiner ’51, director of the Law School’s Human Rights Program, opposed Goldsmith’s appointment. But Steiner told The Crimson yesterday that he would not divulge his vote on the appointment. “I view the faculty meetings as confidential,” Steiner said.

Bartholet told The Crimson yesterday that she would not comment for an article on Goldsmith, nor would she confirm the quotes attributed to her in The Globe.

Several professors said they were appalled by the ad hominem attacks on their colleague in the press.

“We should oppose one another’s arguments with arguments of our own, rather than with smears,” said Richard D. Parker, who is the Williams professor of criminal justice

The small faction of faculty members who blasted Goldsmith in the Globe article “are going way over the top,” said Charles Fried, the Beneficial professor of law. “It does not hurt Goldsmith, but it hurts them.”

Faculty welcomed Fried back to Harvard after his stint as solicitor general in the Reagan administration—even though many professors disagreed with the views Fried expressed as a government official.

Fried said the criticism of Goldsmith marked a break from that precedent of collegiality. “The idea that we should pass political judgment on what people did as lawyers to the government is very dangerous and quite wrong,” Fried said. “We’re not the Senate Judiciary Committee.”

In fact, the Senate Judiciary Committee has passed judgment on Goldsmith—confirming his appointment as assistant attorney general in 2003.

Luminaries in the field of international law lavished praise on Goldsmith in letters to the Senate panel as it vetted his nomination. “Even when I disagree, I admire the personal and professional integrity that characterizes all his work,” wrote Anne-Marie Slaughter, dean of Princeton’s Woodrow Wilson School.

As Goldsmith waited for his appointment to be confirmed, the University of Virginia offered him a tenured post—which he took for three months before rejoining the Bush administration.

Other law schools vied for Goldsmith’s highly-prized services. “It was a great coup that Harvard Law School was able to attract him to our faculty,” said Story Professor of Law Daniel J. Meltzer ’72. “Jack Goldsmith is an extraordinarily distinguished and influential scholar.”

And the bulk of faculty members who spoke to The Crimson yesterday appear to be equally enthusiastic about the Law School’s success in luring Goldsmith to Cambridge.

“He is a great scholar of international law and a great teacher,” Dean Elena Kagan said in an interview yesterday. “I’m as proud of the Goldsmith appointment as of anything I’ve done as dean.”


Daniel J. Hemel is a Harvard Crimson Staff Writer.


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