Last night former State Department official and executive director of the 9/11 Commission Philip Zelikow appeared on the Rachel Maddow Show to discuss the anti-torture memo he wrote while in the administration in dissent of the OLC memos authorizing torture. The administration attempted to destroy all copies of that memo.
MADDOW: So you first saw these Office of Legal Counsel memos in 2005. What was your reaction to the legal reasoning in those memos?
ZELIKOW: Many years earlier when I had been a law student and had been a practicing lawyer, I had worked, actually, on issues of treatment of prisoners and that whole body of constitutional law. So when I saw the memoranda, I was struck by the fact that, even aside from the policy problems, the legal reasoning seemed deeply unsound to me, and I wasn't sure that the president and his advisers understood just how potentially questionable and unreasonable many lawyers and judges would find this reasoning. And so, I thought it was important to just say, hey, there is another view here of this law, and a lot of people would regard the views in these memos as, to say the least, outliers.
MADDOW: So when you say that judges might see it, you suggest judges are one of the audiences that might not be persuaded by the reasoning in these memos, were you thinking ahead to the purpose for which these memos were drafted, which is essentially -- I mean, it's hard for those of us outside of government sometimes to understand what an OLC -- what the purpose of an OLC memo is, but essentially to provide a defense in case people were accused of acting illegally in ways that were described in those memos? Is that what you were thinking of?
ZELIKOW: Yes. Rachel, perhaps just a little bit of background, to put this in context for your viewers. America has fought a number of wars in our history, including against unconventional enemies. This was an interrogation program, however, for which there is no precedent in the history of the United States. We've never done a program like this before. So where the administration is moving into uncharted waters, they are clearly doing things that folks know are legally questionable. That is why these opinions were requested, because there were questions about whether this sort of conduct was lawful, since it was unprecedented.
So here the Justice Department is coming down and saying, look, this is a murky area of the law, but here's what we think you're allowed to do. Now, whether it is a good idea to do it is another question. Whether it is moral is another question. The question before them was, is it lawful to do this? And the Justice Department has the job of giving authoritative guidance for the executive branch on how the U.S. law should be interpreted in the conduct of our actions. (emphasis mine)
(Full transcript of this video snippet is below the fold. The full video is available here, and the full transcript here.)
Zelikow also wrote about his dissent yesterday at Foreign Policy's Web site.
Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:
- the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;
- the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
- the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.
The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.
In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.
It's important to note that there was dissent within the administration, dissent on solid legal grounds that was actively squashed by the administration. It's also important to see that someone in the Bush administration, someone loyal to his country, his boss--Condoleezza Rice--and to our national security, recognized and tried to combat the extreme extralegal arguments of Bybee, Yoo, and Bradbury. It's just as important to know that that dissent was not only ignored, but that the administration tried to destroy all evidence of that dissent.
These lawyers knew that they had stretched all bounds of legality, stretched them to the snapping point and went far beyond them. The administration officials who demanded these memos knew it, too.
Update: Spencer tried to locate a copy of the memo, but the State Dept. couldn't locate one. He's filed a FOIA for it.
And Michael Froomkin makes the point about this memo better than I have, it's hard for the architects of the torture regime to argue that they were ignorant of history or law in crafting the memos in light of Zelikow's memo:
If the White House had truly believed its legal position was secure, it would not have sought to suppress a dissenting voice. It would be interesting to know who saw the Zelikow memo, and who exactly sought to suppress it. This attempt to flush the truth down a memory hole will not look good should the perpetrator ever find himself or herself in front of a Spanish war crimes tribunal.
Transcript of the video snippet:
MADDOW: So you first saw these Office of Legal Counsel memos in 2005. What was your reaction to the legal reasoning in those memos?
ZELIKOW: Many years earlier when I had been a law student and had been a practicing lawyer, I had worked, actually, on issues of treatment of prisoners and that whole body of constitutional law. So when I saw the memoranda, I was struck by the fact that, even aside from the policy problems, the legal reasoning seemed deeply unsound to me, and I wasn't sure that the president and his advisers understood just how potentially questionable and unreasonable many lawyers and judges would find this reasoning. And so, I thought it was important to just say, hey, there is another view here of this law, and a lot of people would regard the views in these memos as, to say the least, outliers.
MADDOW: So when you say that judges might see it, you suggest judges are one of the audiences that might not be persuaded by the reasoning in these memos, were you thinking ahead to the purpose for which these memos were drafted, which is essentially -- I mean, it's hard for those of us outside of government sometimes to understand what an OLC -- what the purpose of an OLC memo is, but essentially to provide a defense in case people were accused of acting illegally in ways that were described in those memos? Is that what you were thinking of?
ZELIKOW: Yes. Rachel, perhaps just a little bit of background, to put this in context for your viewers. America has fought a number of wars in our history, including against unconventional enemies. This was an interrogation program, however, for which there is no precedent in the history of the United States. We've never done a program like this before. So where the administration is moving into uncharted waters, they are clearly doing things that folks know are legally questionable. That is why these opinions were requested, because there were questions about whether this sort of conduct was lawful, since it was unprecedented.
So here the Justice Department is coming down and saying, look, this is a murky area of the law, but here's what we think you're allowed to do. Now, whether it is a good idea to do it is another question. Whether it is moral is another question. The question before them was, is it lawful to do this? And the Justice Department has the job of giving authoritative guidance for the executive branch on how the U.S. law should be interpreted in the conduct of our actions.
MADDOW: And the memo that you wrote, the document that you wrote that you've described today at the Web site of "Foreign Policy" magazine essentially said that they got it wrong when they described what you are allowed to do under U.S. law, that their reasoning was flawed. It didn't take account of the relevant case law, for example, that they should have called on to prove their point. Is that accurate?
ZELIKOW: Yes. That's accurate. Now, look, I'm just one point of view. I looked at their point of view, and it didn't strike me as a mainstream or reasonable way of construing the relevant standards of treatment, of the definition of terms like cruel, inhuman or degrading. They were using an interpretation of how to comply with that standard that I didn't think any judges or lawyers outside of the administration would find plausible, and I wasn't sure other folks realized just how implausible it was.
So -- now, of course, I'm just offering my opinion. Now, I was there as part of a team representing the State Department, acting as an agent of Secretary Rice, who had grave concerns about all of this. But others in the administration were perfectly entitled to say, no, we looked at the law, and we have the Justice Department. They know a lot more about this than you do. But look, they were entitled to hear an alternative point of view and figure out whether or not they wanted to re-evaluate their opinion.
MADDOW: Rather than just disagreeing with you or saying that they thought that you were wrong and the Office of Legal Counsel memos that you were rebutting were correct, why do you think they tried to destroy every copy of the memo that they knew existed? And how did you find out that they did try to destroy copies of the memo?
ZELIKOW: Well, I found out because I was told. I mean, we're trying to collect these and destroy them, and you have a copy, don't you? But I -- the -- I know copies that were retained in my building, and as I mentioned, Secretary Rice understood what I was doing on her behalf. I was her agent in these matters. And the -- so I think copies still exist.
Why would they destroy them? That's a question they'll have to answer. Obviously, if you want to eliminate records because you don't want people to be able to find them.
