Preserving the Illusion of Good Faith
(updated below)
Former State Department Legal Advisor Philip Zelikow has written an interesting post about the OLC torture memos that were released last week. Zelikow writes that when he first read the memos in 2005, he was shocked by their "grave weaknesses." Indeed, he was so shocked that he actually went to the trouble of drafting a counter-memo:
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.
Former State Department Legal Advisor Philip Zelikow has written an interesting post about the OLC torture memos that were released last week. Zelikow writes that when he first read the memos in 2005, he was shocked by their "grave weaknesses." Indeed, he was so shocked that he actually went to the trouble of drafting a counter-memo:
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.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.
posted by A.L. at 12:16 PM
9 Comments:
I love your legal reasoning ninety nine times out of one hundred, however, there is no word "shotty" in the English language.
One might try "shoddy" instead.
Thanks, John. It's been corrected.
I don't have an alternative theory as to why the White House would hoover up the Zelikow memo (Psych - one occurred to me as I typed) but do consider this:
" The Justice Department had been deliberating whether to release three legal memos from May 2005 that, in effect, reaffirmed Bush’s right to authorize the harsh interrogations, after the earlier memos had been withdrawn in 2003 and 2004 by Deputy Attorney General Jack Goldsmith.
But Goldsmith resigned in 2004 under White House pressure and his replacement as head of the powerful Office of Legal Counsel, Steven Bradbury, reasserted Bush’s sweeping powers in May 2005. Bradbury reissued some of the OLC’s opinions from 2002 and 2003 that argued that Bush’s Commander-in-Chief authority permitted him to override laws in the name of national security."
I would have thought that once Goldsmith, as head of OLC, withdrew the memos, any future defense that rested on the notion that these opinions were not controversial was absurd.
So why hide the Zelikow memos? Cheney, Addington and others have been famously associated with the phrase "Stay in your lane" (Not famous enough for me to find a cite just not, but still). The White House might just as well have objected to Zelikow writing his own CYA memo about a topic quite distant from his actual responsibilities, as he notes himself.
One can imagine the late innings of the Bush Administration, or any other, as folks flood the email system with their own CYA thoughts that will double as their first draft of their memoirs.
Tom Maguire
Tom,
My guess is that it's the explicit written analysis in the Zelikow memo that bothered the White House. Yes, Goldsmith had earlier instructed agencies to stop relying on several of the Yoo/Bybee memos, but I don't believe he had written anything attacking the reasoning contained in them. Thus, someone like Bradbury can come along and reissue the opinions with some cosmetic changes and claim that the problems that had caused them to be withdrawn had been fixed.
Goldsmith had major issues with the opinions, but he appears to have only shared his concerns within a limit circle of people and not in a written memo form. Thus, his actions weren't fatal to the "good faith" defense, so long as the opinions were eventually reissued. Zelikow on the other hand appears to have widely circulated a written memo attacking the torture opinions. That's much more problematic for the administration.
What seems to be overlooked here is that the individuals who did the torturing must have known they were torturing and that torture is wrong, abhorrent and illegal.
All the memos in the world won't change that, you know.
(btw, I know you don't feel the actual torturers should be prosecuted. I disagree but respect your opinion on the matter. In the end though, I cannot imagine that these people did not know they were doing a terrible wrong and (to me at least) points to a certain culpability. Everything else is ass covering. And it's reprehensible.)
Anonymous,
I concur. IANAL, but torture, at the delivery end, is and has been illegal for so long that this should not have been a question. The actions lead one to believe that the justification occurred, at least in part, after the fact--it's almost as if they were papering over the cracks they kept finding in the facade as opposed to designing a process from the start.
I can imagine a scenario where some ground level (intelligence or armed forces) first did it, and with the false bravura they are famous for, the administration couldn't find a way to stop it without appearing weak to themselves, so they kept doubling down as they ran down the rabbit hole.
We need to excise those who did this from the intelligence community, the legal community, and the body politic. Those who tortured prior to and in excess of the memos should be prosecuted, as well as those who championed, wrote, or promulgated them. The rest should be pensioned off and advised that they are no longer wanted in the government.
"Shotty" should be in the language, to denote work that is worse than "shoddy" and borders on "shitty."
Shotty indeed, Anonymous. Shotty indeed.
"We need to excise those who did this from the intelligence community, the legal community, and the body politic. Those who tortured prior to and in excess of the memos should be prosecuted, as well as those who championed, wrote, or promulgated them. The rest should be pensioned off and advised that they are no longer wanted in the government."
I once again direct those interested in the lack of regard for what is 'legal' regardless of 'good faith' or its lack within the CIA ranks to the work of author and former CIA officer John Stockwell, particularly 'In Search of Enemies.' Even if one disagrees with Stockwell's belief that the CIA is entirely useless, the insider's view is worth the read. Torture is not new in the CIA and its increasing limitation has been aggressively fought all the way. Many in the national security community have been trying to deregulate the CIA back to its 1957 muscularity for years.
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