Zelikow’s Destroyed Memos

Last night, as I was beginning my catalog of the interrogation reports used in the 9/11 Report, the former Executive Director of the 9/11 Commission was on Rachel Maddow, elaborating on his Foreign Policy article where he revealed how the Bush Administration destroyed his objections to the May 2005 Bradbury Memos.

Anonymous Liberal had a very good take on Zelikow’s story (which basically matches what bmaz said to me via email). The destruction of Zelikow’s memos is clear evidence of criminality.

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.

Zelikow doesn’t make AL’s point as explicitly as AL does: he says only that they’ll have to explain why they destroyed those memos and doesn’t think about the maintenance of plausible deniability for the torturers. But it’s a good question.

So who’s going to ask that question?

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Emptywheel Twitterverse
emptywheel @TimothyS Agree sit was arranged and propaganda, but did you see 2nd Q that got cut?
1mreplyretweetfavorite
emptywheel @BradMossEsq Or ask why when NSA caught illegally watchlisting 3000 USPs, they just moved it under 12333? @Ali_Gharib
2mreplyretweetfavorite
emptywheel @BradMossEsq Or ask how NSA can comply w/foreignness determination on 702upstream w/selectors that can't be foreign determined? @Ali_Gharib
3mreplyretweetfavorite
bmaz Hope was a good day in the 10th while I was out protecting the world from wrongful interjection of qualified immunity in municipal liability
3mreplyretweetfavorite
emptywheel @BradMossEsq Like when John Miller w/chance to ask why NSA destroyed 3000 files of raw USP in wrong place, spun Captains Chair? @Ali_Gharib
4mreplyretweetfavorite
bmaz RT @nancyleong: Other J. Lucero line of the day. "Why is gay people getting married a poison pill for heterosexual marriage?" #samesexmarri
6mreplyretweetfavorite
bmaz RT @nancyleong: Line of the day. Lucero asks OK govt atty about his brief. Says "I read ALL the words. I just didn't understand them." #sam
6mreplyretweetfavorite
emptywheel @BradMossEsq If the sign of corrupt govt is the softball questions, we're in trouble. @Ali_Gharib
44mreplyretweetfavorite
emptywheel @BradMossEsq Softballs happen in both places. All are not good. But it'd be nice to have some attention paid, as well, to OURS. @Ali_Gharib
44mreplyretweetfavorite
emptywheel @Ali_Gharib When I get invited to do a long profile of ADM Mike ROgers, hold me to account, please. @BradMossEsq
51mreplyretweetfavorite
emptywheel @BradMossEsq Right. The things that NSA's docs and sworn statements to courts are by def less accurate. @Ali_Gharib
55mreplyretweetfavorite
emptywheel @BradMossEsq So far all softballs in the US are actually hardballs, and only softballs under greater coercion are soft? @Ali_Gharib
56mreplyretweetfavorite