Part 1 Rachel Maddow talks to former State Department lawyer under Condoleeza Rice, Philip Zelikow who says that the Bush administration attempted to
April 21, 2009

Part 1

Rachel Maddow talks to former State Department lawyer under Condoleeza Rice, Philip Zelikow who says that the Bush administration attempted to destroy all copies of an alternative memo on interrogation techniques he wrote in 2005.

From Philip Zelikow's blog at Foreign Policy magazine The OLC "torture memos": thoughts from a dissenter:

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.

Part two below the fold.

Part 2

Full transcript:

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.

MADDOW: Am I right in thinking that they would want to erase any evidence of the existence of a dissenting view within the administration because it would undercut the legal authority of the advice in those memos, the advice that those techniques would be legal?

ZELIKOW: That is what I thought at the time. I had the same reaction you did. But I don't know why they wanted to do it.

MADDOW: And speaking about accountability for official actions here, it seems to me that the authors of the OLC memos may find themselves in some trouble, either professionally or I guess potentially criminally, if they wrote opinions to order, if they came up with legal reasoning to support a preordained conclusion. It also seems the government officials could find themselves in trouble if they knowingly used these memos as a tool to get a policy implemented, to do things that they knew to be illegal.

Could the existence of your dissenting memo be evidence that government officials did know that these things that they were authorizing really were at least possibly illegal?

ZELIKOW: All it shows is that they were presented with an argument that says your interpretation of the law appears to this one fellow to be unsound. Now, of course, lawyers disagree all the time about how to interpret the law, and it's now up to our institutions and the Justice Department to sort out whether or not their rejection of these views was just another disagreement among people interpreting tough law, or was something more than that. The Justice Department is already looking into how these lawyers did their job. I'm happy to wait and read their report and find out what they've learned.

MADDOW: I have to ask, given your description of how you felt about these memos and the actions that you took, some of the other reporting that other people have said about you, in terms of your role in the administration at this time, I have to ask if you ever contemplated resigning over this issue if you felt quite strongly about it?

ZELIKOW: No. You have to understand, this is a battle that had been going on for months beforehand and went on for months afterwards.

This is chapter nine of 32 chapters.

And, actually, by the end of 2005 and on into 2006, we were achieving major changes. And we were achieving major changes in what the standards would be that would govern what we were doing, major changes in what the CIA was actually doing in the sites, and important changes in the way we were beginning to talk to our allies about these problems, and move towards bringing these people out of the black sites and into the light, where they would see lawyers, the Red Cross, all of that. That's a decision that we achieved in 2006, that was made by President Bush in 2006.

So we were in the process of working this from the inside while people like Senator McCain were doing really important work on this issue on Capitol Hill. Supreme Court delivered a very important opinion on this, Hamdan versus Rumsfeld, during 2006. So we were a part of a combination of forces that was trying to move our government in a different direction, to turn the page and get this moving in a healthier direction. And I think we began turning that corner in 2006.

MADDOW: I feel like I'm starting to understand your reasoning and the way that you approached this, just from talking to you now, from what I know about your actions. But there is still one thing that still doesn't -- just doesn't resonate for me. And that is in 2005, when you found out that this memo that you wrote, which said this Office of Legal Counsel attempt to say that things like hanging people from ceilings and sleep deprivation and these other things is illegal, it's wrongly reasoned, there's them saying this is legal under U.S. law is an inappropriate legal understanding. It is an inappropriate understanding of U.S. law.

When you found out that they were collecting your memo with that criticism in it and destroying it so there would be no evidence of it, at a time when you knew that they were going to carry out those techniques, which you must have believed were not legal, since you had seen the legal rationalization for it, it is hard for me to believe that you would not think about resigning or blowing the whistle or saying publicly what was going on at that time?

ZELIKOW: It was my job to fight this with every ounce of energy at my disposal, using the legal means in front of me. Frankly, that's the same way they should have approached their job, is work within the institutions you've got, the institutions our country gives you.

They weren't committing an act of obstruction of justice by trying to destroy copies of the memos, and they did not succeed in destroying copies -- all the copies of these memos. Just because they disagree with an alternative view doesn't mean that my view was right, but it was important to register the fact that, hey, folks need to understand, if they didn't already, a lot of lawyers might believe that this is a radical, indefensible, unreasonable interpretation of the relevant law.

They heard that argument. They chose to move on. We continued the fight to change the policy. And ultimately did change the policy, with help from Congress and the courts.

MADDOW: One last question for you. If members of the National Security Council principles committee or deputies committee did say thumbs up to specific techniques like waterboarding or like hanging people from the ceiling that were mentioned in those Office of Legal Counsel memos, and they said thumbs up to that on the basis of there being legal authorization in those memos, do you think those officials committed a crime when they OK'ed it?

ZELIKOW: I'm going to obey the same advice I would give to President Obama, which is when people argue that crimes have been committed, our country has institutions to sort this out. One of those institutions is the Department of Justice and the attorney general.

President Obama ran on the platform that we are going to depoliticize the Department of Justice. Well, let's do that. Let's refer all those questions to the Department of Justice. If you have a question about whether these people will be prosecuted, the Department of Justice is looking into the matter. The attorney general is looking into the matter. They will sort this out the way they sort out other allegations of crime. And let's just see where it goes. And that's my approach, too, is I'm not going to rush to judgment, I'm not going to prejudge or politicize the issue. It's important folks understand there is another point of view and was another point of view on some of these matters. Now let our institutions do their job.

MADDOW: Philip Zelikow, former State Department counselor, deputy for Secretary of State Condoleezza Rice, thank you so much for coming on the show. It's invaluable to have your perspective and to hear how things went from your point of view in the administration. Thank you, sir.

ZELIKOW: Thank you.

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