Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

April 22, 2009

ZELIKOW SPEAKS.... Philip Zelikow, a top State Department lawyer under Condoleezza Rice and the executive director of the 9/11 Commission, had a rather provocative item for Foreign Policy yesterday, explaining that he saw the OLC's arguments in 2005 justifying abusive interrogation techniques, and provided officials with an "opposing" view of the law.

Zelikow said he "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." His perspective, we now know, was ignored.

It's worth noting, of course, that lawyers, especially high-ranking lawyers in positions of governmental authority, are going to disagree quite a bit about legal interpretations. But in this case, Bush officials not only thought Zelikow was wrong, and not only ignored his sound judgment, they went considerably further: "The White House attempted to collect and destroy all copies of my memo."

Zelikow explored this in some detail last night in a fascinating interview with Rachel Maddow on MSNBC:

For those of you who can't watch video clips from your work computers, I'm including a transcript of the interview, sent in by reader D.F., below.

MADDOW: Mr. Zelikow, thank you so much for taking time to join us tonight.

ZELIKOW: Glad to be here.

MADDOW: First of all, let me give you the opportunity to correct me if I have mischaracterized anything. Is what I have said about your involvement in this issue thus far – have I accurately characterized it?

ZELIKOW: Yes.

MADDOW: OK. 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 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 advisors 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's 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: 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 was essentially—I mean it's hard for those of us outside of government to understand 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: Yeah. 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're clearly doing things that folks know are as legally questionable. That's why these opinions were requested. Because there were questions about whether this sort of conduct was lawful because 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's a good idea to do it is another question. Whether it's moral is another question. The question before them was, "Is it lawful to do this?" And the justifce 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: In the memo that you wrote, the document that you wrote, that you described today on the website 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 or human 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. 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 this. But others in the administration were perfectly entitled to say "No, we looked at the law," [inaudible] Justice Department – they know a lot more about this than you do. But, look, they were entitled to hear an alterative point of view and figure out whether or not they wanted to reevaluate their opinion.

MADDOW: Rather than just disagreeing with you, or saying 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, "We're trying to collect these and destroy them. And you have a copy don't you?" I know that copies were obtained in my building. And as I mentioned, Secretary Rice understood what I was doing on her behalf. I was her agent in these matters. So I think copies still exist. Why would they destroy them? That's a question they'll have to answer. Obviously you want to eliminate records because you don't want people 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's 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: In thinking 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 that 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 adheres to this one fellow to be unsound. 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 about 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 afterward. This is chapter 9 of 32 chapters. And actually, by the end of 2005, and on into 2006, we were achieving major changes. 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 on 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 a process of working this from the inside, while people like Senator McCain were doing really important work on this issue on Capitol Hill. The Supreme Court delivered a very important decision on this, Hamden v. Rumsfeld, during 2006. So we were 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 believe 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 know and from what I know about your actions, there is one thing that 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 is illegal, it's wrongly reasoned, there's them saying this is legal under U.S. law is an inappropriate legal understand, it's 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 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's 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. And frankly that's the same way they should have approached their job, is work within the institutions you've got, 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 all the copies of these memos. Just because they disagree with an alternative view doesn't mean 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 can continue to 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 Principals Committee or Deputy's Committee did say thumbs up to specific techniques like water boarding 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 their being a legal authorization in those memos, do you think those officials committed a crime when they Oked it?

ZELIKOW: I'm going to obey the same advice I would give to President Obama, which is that 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're 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'll 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 try to prejudge or politicize the issue. It's important folks understand that there's another point of view and was another point of view on some of these matters. Now let's 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 thing went from your point of view in the administration. Thank you sir.

ZELIKOW: Thank you.

Steve Benen 9:55 AM Permalink | Trackbacks | Comments (22)

Bookmark and Share
 
Comments

I would disagree with Zelikow on one point: he doesn't believe that deleting his memo was obstruction of justice. It smells just like that to me!

Posted by: kevin on April 22, 2009 at 10:00 AM | PERMALINK

Well the good thing is that there were actually some respectable people in the previous Administration. Yes, they were silenced, but they were there.

Posted by: Franklin on April 22, 2009 at 10:02 AM | PERMALINK

I have two thoughts. First, building on Franklin's insight, we should realize why it is a good thing if somewhere a reasonable, moral Republican is reborn, even though I personally won't agree with its presumably conservative take on thing. If there are no reasonable voices on that side, what damage will they create without internal dissent when they get elected?

Second, though, let's put two reports together. We know that the Bush administration thought it was not only OK but useful to detain persons whose only involvement with "hostile actions" against US interests was that they were in the wrong place at the wrong time. That is, the adminstration did not view it as regrettable collateral fallout if innocent Afghanis et al. were detained, but instead a possible source of useful intelligence since they were at least witnesses.
We also know that the Bush administration believed it acceptable to torture people it detained. It seems inevitable that they realized that they were 1) detaining persons whose only "crime" was their geographic location and 2) torturing them-- and this was OK with our government, since we might accidentally learn something useful.

Surely we have some radical housecleaning to do to get this country clean again.

Posted by: Jake on April 22, 2009 at 10:13 AM | PERMALINK

Fascinating!

I'm not sure I agree with you kevin. I think what Mr. Zeilkow is saying is this was an opinion, not a finding. Trying to destroy it is more of a political operation. Now, saying "There was no dissent from any of the lawyer's we consulted." in a court of law would be a crime, but I don't believe attempting to destroy this memo was a crime unless it violated something like FOIA or laws controlling presidential papers or something like that.

Posted by: MichMan on April 22, 2009 at 10:15 AM | PERMALINK

Good for Zelikow. What he is trying to say is obvious - legal opinions are just that - opinions - unless a Judge rules on it.

So let's take this in sequence: (a) Let Congress and DOJ investigate first (b) Appoint a special prosecutor if there is a case, and likely there is a case. (c) Let a Judge rule on the actions of the Bush administration.

Posted by: Ohioan on April 22, 2009 at 10:17 AM | PERMALINK

Zelikow is a seriously impressive man.

I had him as a professor at UVA - actually, I was taking his class on WWII in the fall of 2001. I didn't agree with him about much politically, but his perspective was always fascinating.

Posted by: Kylie on April 22, 2009 at 11:00 AM | PERMALINK

Well, the next logical step for Mr. Zelikow is to release his memo so that we can see it.

Let's see the memo, Mr. Zelikow. What are you waiting for?

Posted by: terraformer on April 22, 2009 at 11:17 AM | PERMALINK

As Zelikow was working for the State Dept., an agency of the federal government funded by tax dollars, don't taxpayers technically own that memo as an employee work product? Where's the public benefit in destroying it?

It's obvious that the attempt to destroy it was for personal and political reasons. Zelikow knows it was a cover-up, but of course he'll never cop to that.

Posted by: bdop4 on April 22, 2009 at 11:39 AM | PERMALINK

This is the same Zelikow who guided the 911 Commission - the one that seemed to miss the fact that a third tower fell in NY.

Posted by: Danp on April 22, 2009 at 11:39 AM | PERMALINK

I am pleased to hear that while Philip Zelikow was at State, he argued against policies that have done the US great harm, in particular in international relations, which was Zelikow's job area. But I can't help but feel that he might be working to distance himself from the Bushies, in other words, CYA. In a previous GOP administration which operated with contempt for the law, Attorney General Elliott Richardson resigned when Nixon ordered him to fire special prosecutor Archibald Cox. So I am waiting to see the actual memo to which Zelikow refers. Surely he was clever enough to retain a draft somehow.

Posted by: vh on April 22, 2009 at 11:46 AM | PERMALINK
I would disagree with Zelikow on one point: he doesn't believe that deleting his memo was obstruction of justice.

Technically, I think this is correct; destruction of the memos doesn't appear to fall within any of the obstruction-related provisions of federal criminal law.

OTOH, a good case can be made that it was both part of the means by which the crimes of torture and war crimes were commited, and an act in furtherance of a criminal conspiracy to commit those acts. That is, the decision-makers seeking to get people command, procure, and cause to be done torture and war crimes—who, as such, are principals of those crimes, see 18 USC § 2—sought to use cooked up legal opinions justifying the acts as within the law to assure their underlings that the action were, in fact, legal as part of the technique to get those people to commit the acts that the decision-makers knew to be illegal. They sought to destroy the countrary legal opinions because they revealed the hollowness of the carefully crafted justifications the decision-makers were using to direct others to commit torture, and by so doing jeopardized the effort to get those others to act illegally on behalf of the decision-makers.

Posted by: cmdicely on April 22, 2009 at 11:49 AM | PERMALINK
So I am waiting to see the actual memo to which Zelikow refers. Surely he was clever enough to retain a draft somehow.

Since it was no doubt classified and drew on classified material, presumably if he was clever enough to retain it he will also be clever enough not to reveal it without either it being declassified by those with the authority to do so now, or some form of legal immunity or protection, since such a release (and quite possibly him actually still having a copy) would most likely themselves be crimes.

Posted by: cmdicely on April 22, 2009 at 11:53 AM | PERMALINK

Well the significance of all this is that it might be a defense to criminal charges if the accused had a legal opinion from an appropriate government official saying that torture as legal under the circumstances, but only if it was reasonable to believe and rely on that opinion. That's why Zelikow was warning his colleagues that the reasoning in the earlier memos was likely to be regarded by judges as implausible, that's why the administration thought it important to suppress Zelikow's memo, and that's why suppressing the Zelikow memo could be fatal to any attempt to defend against criminal charges on thsi basis..

Posted by: rea on April 22, 2009 at 12:14 PM | PERMALINK

Since it was no doubt classified and drew on classified material, presumably if he was clever enough to retain it he will also be clever enough not to reveal it without either it being declassified by those with the authority to do so now, or some form of legal immunity or protection, since such a release (and quite possibly him actually still having a copy) would most likely themselves be crimes.

He has stated, FWIW, that it was highly classified and that he suspects that there may be a copy or two still floating around State.

Posted by: shortstop on April 22, 2009 at 12:21 PM | PERMALINK
He has stated, FWIW, that it was highly classified and that he suspects that there may be a copy or two still floating around State.

With any luck, they'll pop up, I would suspect that it didn't take very long for the word to go out in State that any existing copies need to be located and brought forward; but testimony without documentary support is still evidence (and evidence of the sort that can be used in a criminal courtroom), particularly if other people who have seen the memo come forward.

Posted by: cmdicely on April 22, 2009 at 12:30 PM | PERMALINK

>>> "I would disagree with Zelikow on one point: he doesn't believe that deleting his memo was obstruction of justice. It smells just like that to me!"

Was there an investigation ongoing at the time his memos were destroyed? I don't think there's any such thing as "anticipatory obstruction of justice."

Posted by: Lynn Dee on April 22, 2009 at 12:53 PM | PERMALINK
Was there an investigation ongoing at the time his memos were destroyed? I don't think there's any such thing as "anticipatory obstruction of justice."

The federal obstruction of justice law would seem to apply to obstructing information from getting to an investigator of the type that might start an investigation as well as after the investigation begins, e.g., 18 USC § 1510(a): “Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.” But it doesn't seem applicable to the specific circumstances here (other laws may be, but obstruction seems to be inapplicable.)

Posted by: cmdicely on April 22, 2009 at 1:36 PM | PERMALINK

Is that the only federal statute governing obstruction of justice? It seems limited to acts involving bribery, which seems an odd limitation for obstruction of justice, unless there are other statutes covering other acts. But, I agree that this statute does not require that there be an ongoing investigation.

Posted by: Lynn Dee on April 22, 2009 at 1:47 PM | PERMALINK

** THANK YOU ** for posting the transcript.

Yes -- many of us _do_ have jobs that prevent us from watching the videos at work. (And, so, we tend to gravitate more towards those blogs that post transcripts).

Thanks!

Posted by: A DC Wonk on April 22, 2009 at 2:16 PM | PERMALINK

Zelikow's demeanor in the interview struck me as strangely passive, as if he were describing how he lost an argument about an abstract point that was of little consequence. The argument, for him, seemed to have no moral or ethical content; he merely argued that the OLC people were interpreting the law incorrectly. For Trekkies, it was a very Spock-like approach; evidently the only thing Yoo and Bybee did wrong was that they were illogical.

Posted by: Joe Buck on April 22, 2009 at 3:17 PM | PERMALINK

The ACLU needs to subpoena Zelikow's memo next, if they haven't already.

Posted by: Joe Buck on April 22, 2009 at 3:18 PM | PERMALINK
Is that the only federal statute governing obstruction of justice?

Not at all; 18 U.S.C. Chapter 73 (§§ 1501 - 1520) addresses the topic generally, I was just pointing to it as an example of the fact that the federal statute on the top does encompass some pre-investigation behavior.

OTOH, reading through the chapter more thoroughly, it seems that I was mistaken—federal obstruction laws would seem to apply here:

18 U.S.C. § 1512(b):

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— [...] (2) cause or induce any person to— [...] (B)alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; [...] shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 1512(c):

Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.

and, the key piece (given that, first, no legal proceeding existed at the time and, second, it would inevitably be argued that the Zelikow memo was protected by attorney-client, executive, state secrets, and/or some other real or imagined privilege rendering it inadmissible, so that its destruction could not be obstruction since it would not be available to any proceeding), 18  U.S.C. § 1512(f):

For the purposes of this section—
(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and
(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

So, perhaps this will demonstrate, again, the coverup, rather than the underlying crime, is where criminals in high office get tripped up.

Posted by: cmdicely on April 22, 2009 at 5:07 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly