The OLC "torture memos": thoughts from a dissenter

Tue, 04/21/2009 - 9:17am

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...

The legal opinions have grave weaknesses.

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.

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..."

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Full article link in my name. No "lib'rul weenie" here. Zelikow was Condi Rice's Policy Counsel.

Pass the popcorn.

School textbooks nationally will be a principal beneficiary.

"Reu'ublicists"

Chances are it'll be good. Jamie Foxx is the shit, man. And, I've always dug Robert Downey Jr. Heard a good interview with the director on NPR today.

at a Magic Johnson all-star basketball event in L.A.

It was fuckin' CREEPY. He and his phalanx of steroidal security peeps just oozed "menace."

I thought that ANY release of ANYTHING related to Cheney's War on Terrah posed a Grave Threat To National Security. But, now, in order to try to save his own yellow, draft-dodging skin, he wants selective release of certain "exculpatory" material relating to his torture campaign.

Try to imagine my utter surprise.

Y'see, we gotta release information on Cheney's torture "successes," in order that our terrorist enemies might learn from them as well.

Of course, we KNOW that every single WoT detainee is guilty a priori.

You clowns can keep lamely trying to spin the banal assertion that everyone we've captured is a "terrorist," every one of whom has vital intel info that can save thousands of lives.

LOL. Charming.

Yep.

LOL!

Ding, ding, ding, we have a winner.

Our abject "terrorification" made us do it. Just ask Condi Rice.

http://open.salon.com/blog/bobbyg/2009/05/06/mission_truly_accomplished

(also in my name link)