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 â€“ have I accurately characterized it?
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 essentiallyâ€”I mean it’s hard for those of us outside of government to understand what the purpose of an OLC memo isâ€”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 â€“ 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. lawâ€”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.