1 Boring Old Man

Zelikow’s Destroyed Memos
By emptywheel on Philip Zelikow

Last night, as I was beginning my catalog of the interrogation reports used in the 9/11 Report, the former Executive Director of the 9/11 Commission was on Rachel Maddow, elaborating on his Foreign Policy article where he revealed how the Bush Administration destroyed his objections to the May 2005 Bradbury Memos.

Anonymous Liberal had a very good take on Zelikow’s story (which basically matches what bmaz said to me via email). The destruction of Zelikow’s memos is clear evidence of criminality.

That’s an incredibly damning allegation. The only reason to collect and destroy all copies of this memo would be in order to preserve, for as many Bush administration officials as possible, a potential defense against later prosecution. If the extent of these activities ever became public and investigations were commenced, the White House wanted to be able to argue that everyone involved relied in good faith on the advice of counsel. That defense would be severely undermined if it could be shown that these officials were warned, by a lawyer of Zelikow’s caliber and rank within the administration, that the legal arguments they were relying on were poorly reasoned and unlikely to be sustained by a court.

This was pure CYA. And it was being done for reasons beyond the potential for political fallout. It was done in order to preserve the illusion of good faith reliance on OLC advice in the event of future criminal prosecutions. This is yet another reason why a special prosecutor needs to be appointed. While I agree with the decision by Eric Holder not to pursue prosecutions against CIA officials who relied in good faith on OLC advice (and did not exceed the scope of that advice), it is becoming increasingly clear that there were people (likely high ranking intelligence officials and people in the White House) who were explicitly warned (likely repeatedly) of the shoddy and highly dubious nature of the OLC’s advice. These folks should not be entitled to any presumption of good faith reliance. They need to be investigated. The attempt to scrub Zelikow’s memo from the record looks to me like an act of criminal conspiracy intended to preserve plausible deniability about the illegal nature of various government activities.

UPDATE: The expunging of Zelikow’s memo from the record is not the only thing the Bush administration has done to hinder the possibility of prosecution. Remember that all the tapes of these interrogations were destroyed or went missing at around the same time. I doubt that’s a coincidence.

Zelikow doesn’t make AL’s point as explicitly as AL does: he says only that they’ll have to explain why they destroyed those memos and doesn’t think about the maintenance of plausible deniability for the torturers. But it’s a good question. So who’s going to ask that question?

The OLC "torture memos": thoughts from a dissenter
4/21/2009
By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA’s program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice’s policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I’m aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most – if not all – of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

…

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives. 

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.  

The story is finally fleshing out. The Bushies came into office dead set on attacking Iraq. Motives? Probably a combination of the "tough on Communism" mentality, the "military-industrial complex," and access to Middle Eastern oil fields [with a dash of Israeli-backed fervor]. They saw 9/11 as a chance to go start their war and developed the WMD/al Qaeda story as a cover. When there were no WMD’s nor al Qaeda ties, they did everything possible to keep the myth alive – outing a C.I.A. Agent, lying, reframing the War, destroying tapes and memos, secrecy, trying to torture a confirming story out of prisoners – all the while being mindful to develop as many C.Y.A. strategies as they could muster.

For me, it was the third grade [Mrs. D.]. I told so many whoppers about the fate of my homework or having completed the boring worksheets from her "ditto" machine, that I lost track of yesterday’s version. Like many, I figured out that it was not the right way to go with life. Lying was just too hard, and it just didn’t work – at least not in the long run. I could tell Mrs. D. was onto my stories and I backed off. As fate would have it, several years later, I moved and Mrs. D. lived around the corner. in my new neighborhood. I tried to avoid her, but sooner or later I found myself sitting on her front porch. To my surprise, instead of it being a Judgement at Nuremberg moment, when I tried to broach the subject of my failed attempt at becoming a sociopath in her third grade class, she laughed a good laugh and said, "You learned a whole lot that year." And she was right. I did learn a lot.