Zelikow’s Dissent and Rockefeller’s Question

Dalybean made an important point in EPU-land of the Gestation of Bradbury’s Torture Memos thread. As I pointed out in that thread, the May 30 Bradbury memo was a response–at least in part–to Congress’ demand that the Administration assess whether their torture program complied with the Fifth, Eighth, and Fourteenth Amendments as they fulfilled the US obligation under the Convention Against Torture.

Well, that was one of the biggest points Phillip Zelikow made in his dissent to the May 30, 2005 torture 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. 

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. [my emphasis]

Zelikow, with a background in this area of law, wrote a dissent to the torture memo ripping its legal analysis. Significantly, Zelikow hit on one point that Congress was hitting on too: the importance of the Eighth Amendment in our compliance with the Convention Against Torture. As Zelikow apparently pointed out, the case law surrounding the Eighth Amendment said that even these detainees were entitled to protection from cruel and unusual punishment.

As a reminder, here’s all that Bradbury had to say about the Eighth Amendment in his memo:

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program. 

Zelikow describes the logic of Bradbury’s stance this way:

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. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Now, scribe hit on just these issues in a long comment in the thread, which helped me, at least, see the absurdity of Bradbury’s position.

But put in the context of Jello Jay’s ten month quest to force the Administration to assess whether or not its torture program violated (among other things) the prohibition on cruel and unusual punishment, the behavior of the Administration makes much more sense.

Jello Jay demanded they review whether we were complying with CAT–and he insisted that they deal with not just the Fifth, but also the Eighth and Fourteenth Amendments. Bradbury came up with a very clever response, if you don’t mind the idea of US citizens in a county jail hanging "from the ceiling naked, sleep deprived, water-boarded, and all the rest." And then Zelikow called him on it.

Zelikow demonstrated to the Administration that they had not solved the problem Jello Jay had given them ten months earlier. 

So David Addington or some other enforcer did the only thing he could do to do to maintain the fiction that the Administration had answered Congress’ questions: rip up Zelikow’s dissent. 

Remember how we said that destroying the memo was evidence of criminal intent–an attempt to preserve the appearance of good faith reliance on Steven Bradbury’s memos? All the more so when Zelikow was making the same point Congress was making. 

74 replies
  1. alabama says:

    Emptywheel, you never sleep! This lovely post prompts me to ask a question: who, of the bush tribe, lawyers included, could identify the amendments comprising the Bill of Rights?

    • Leen says:

      The Dept. of Justice should pay EW’s bills. This woman along with so many others here at FDL are doing the work of the Dept of Justice.

  2. Hmmm says:

    This makes Condi’s little hissy-spill at The Farm the other day (John Dean thinks she’s admitted criminal conspiracy with W, though most other folks seem to think she’s given up W, or at least is now telegraphing in that direction) all the more interesting. Z-man being Condi’s knight and all. (Whereas I had postulated W+Condi = Luv 4 Evr.)

    • lllphd says:

      condi admitted to being the conduit, which does suggest conspiracy and sure implicates her knowledge and complicity.

  3. bobschacht says:

    If I remember correctly, Zelikow was a little vague on the question of exactly who it was who had issued the order to destroy copies of his memo. And apart from making sure that he retained a copy for his own records, Zelikow did not protest very much.

    It might be interesting to find an actual copy of the ”Destroy the Zelikow memo!” order– like who ordered it, and who signed off on it. Was it really Addington, or is that merely a (probably accurate) supposition?

    Bob in HI

  4. bmaz says:

    Remember how we said that destroying the memo was evidence of criminal intent–an attempt to preserve the appearance of good faith reliance on Steven Bradbury’s memos? All the more so when Zelikow was making the same point Congress was making.

    Exactly right. And Scribe’s detail was excellent explanation on the applicability of the 8th. I would also like to recommend William Ockham’s comment on that thread about the Ruiz v. Estelle case and my followup comment to that on the Hart Litigation, which taken together clearly demonstrate the patently obvious applicability of the very concerns Zelikow warned of.

    I’m telling you, the hole in their “good faith” BS is big enough to drive a Mack truck through. Where are the drivers? It cannot be only those here at this blog and the Zelikow show. Obama and Holder are consciously avoiding this issue with a passion; it is too obvious for them not to see and understand. The problem is that they are both doing their absolute best Sgt. Schultz routine.

    • perris says:

      I’m telling you, the hole in their “good faith” BS is big enough to drive a Mack truck through. Where are the drivers?

      here are the drivers

      But it turns out neither Mitchell nor Jessen had any experience in conducting actual interrogations before the CIA hired them.

      “They went to two individuals who had no interrogation experience,” said Col. Kleinman. “They are not interrogators.”

      these “experts” were hired at 1000 dollars a day to create cheney’s house of hell

    • portorcliff says:

      Well, bmaz, emptywheel and all….Thank you for this and all of the analysis threads. Your efforts have given me a crystal clear understanding of their capricious and callous disregard for the Constitution and rule of law.

      Bmaz, can Sheldon Whitehouse be the driver of the Mack truck?

      Where is our special prosecutor. Where are our outraged legislators who swore an oath to uphold the Constitution?

      • bmaz says:

        Yes, Whitehouse has the chops to do it, no question. Whether he really has the political will to go where it all leads, I am not as convinced on as of yet. He seems to be getting stronger though, so we shall see.

    • lllphd says:

      bmaz, i suspect we’ll remain at this same impasse on this topic as well, but i’m more interested in success than in making the principled stand only to be shot down. i think obama knows this; so far, the public is not yet prepared for prosecutions. fine, so be it, but neither was the public ready for prosecutions before the watergate hearings. i suspect obama knows that, too. congressional hearings educated the public, and that tide turned. that will be needed here, as well.

      watching obama, he has clearly learned mandella’s model (which he in turn learned from his father, a tribal chieftan): to lead, you must follow your people. if obama pushed too hard on this now, the resistance would destroy more than the efforts to punish the war criminals; he could risk his entire agenda. this is what makes such leadership so hard that it drove W nuts; he had all the answers and just wanted to be a dictator. obama, on the other hand, is exquisitely nuanced and recognizes powerfully the importance of timing. and patience.

      did you happen to see brian helm on bill moyers last night? he is suggesting obama pardon the top players – bush, cheney, condi, etc. – and then hold hearings. his reasoning is that this would eliminate the cries of witchhunt. the only problem is that i cannot even begin to imagine dick cheney admitting to any of this as a crime, which would be required. still, if a pardon were offered and there were those who could not comply with the requirements, at least obama extended this offering and we could ‘move forward’ to the business at hand, namely criminal proceedings.

      • bobschacht says:

        did you happen to see brian helm on bill moyers last night? he is suggesting obama pardon the top players – bush, cheney, condi, etc. – and then hold hearings. his reasoning is that this would eliminate the cries of witchhunt.

        Brian Helm? I thought it was Bruce Fein who was making that argument last night on Moyers’ Journal.

        Bob in HI

      • bmaz says:

        Pardoning the top people in some moronic attempt to remove the “witchhunt cry” is literally one of the stupidest things I have ever heard. This cluck was serious with that tripe?? Jeebus. You know, upholding the rule of law isn’t always popular, and it isn’t necessarily politically convenient; but it is their damn job. It is the right thing to do. Lastly your assertion that “the public isn’t ready for it” is baloney. Polls quite consistently show a majority are ready. I am sorry if you find it so unsavory, but in the country I want to live in, you do the hard work to uphold the Constitution and the rule of law because it is the right thing to do. It is really that simple.

        • wavpeac says:

          stupid and completely intolerable. That would have been like if we had caught Hitler and pardoned him and his two advisors in hopes of getting the “truth” an capturing the “rest”. Totally unsatisfying to justice.

        • lllphd says:

          bmaz, i don’t find prosecution unsavory at all; if i had my way, they’d all be given a dose of their own methods, for as long as those methods were in place.

          however, i’m not in charge, thankfully. all i’m suggesting is that obama and holder are wise to move cautiously, which may be too slow to you. however, i’ll remind you that obama has only been in office a little over three months. stop and think how quickly you would have predicted we’d get this far had you been asked in say december of last year. for me, i would have thought we would not see so many docs or exposures as this within a full year. in just the month i was gone, i am stunned with how much is now out there.

          the glass is more than half full, bmaz; respect patience.

  5. perris says:

    RUT RO, gorilla in the room, everone missed it?;

    In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.


    this is a CLEAR discription of what was being done to the detainees!

    this says CLEARLY, these detainees were NOT “only being water tortured, NOT “only” suffered sleep deprivation BUT THEY WERE HUNG FROM THE CEILING NAKED!

    “and all the rest” means there were OTHER forms of torture as well but there is the gorilla, these INOCENT people were being hung from the ceiling but naked

    • perris says:

      let’s take that even further

      suppose they were first drowned and brought back to life a number of times, (which is what can happen while under the stress of this kind of water torture), so killed, revived, then sleep deprived, then hung from the ceiling butt naked

      what KIND of hell was viisited on these people?

      what KIND of sadists!

      we KNOW these experts in torther had NO experience with interrogation, they were there to SPECIFICALLY create this house of pain

      • behindthefall says:

        … and my particular hobby-horse (sorry to say it again): they were to videotape the action and make two copies for D.C., because one of the guys likes to watch, and other guy doesn’t like to read.

      • WilliamOckham says:

        Don’t forget splashed with cold water while shackled naked in a stress position in a cold cell. Or forced onto a plastic sheet that was raised at the edges and then filled with cold water to immerse the prisoner up to his head. God, these people were sick.

        • klynn says:

          Actually read that induced hypothermia can be as difficult for a doctor to reverse it’s negative impact on the body as waterboarding. However, since waterboarding can cause cardiac arrest, I often wondered if some of the induced hypothermia was part of cardiac treatment to reduce brain damage?

        • emptywheel says:

          You know, of the four recently released opinions it’s the “Combined” one that seems least appalling to me. But that’s the one Comey was reported to have said would make us ashamed (though I suspect the reporting on it might be wrong).

          But Comey of course knew how hte techniques used in combination could be deadly.

          The opinion seems to designed to justify sleep deprivation–which everyone seems to agree was actually the worst of all of these–to be used with waterboarding. Now THAT might cause you a heart attack.

          I keep remembering that KSM says he was “walled” so many times his head was bleeding, then moved from there directly to the waterboard.

        • klynn says:

          So we have in combo: sleep deprivation + waterboarding = heart attack, followed by the use of induced hypothermia to reduce brain damage and revive the victim.

          Sounds systematic…and deeply disturbing.

          (Note: And that “curious” link I sent you about thermal physiology becomes more curious in terms of authors and contributors with the same names. It addresses such physiological impacts on the body.)

        • klynn says:

          Post traumatic induced hypothermia can be use to reduce the impact of many injuries from just about any trauma to the body. Even epidural induced hypothermia. Contusion and muscle compression physiology studies will result in the same names appearing EW.

          What are the odds?

        • klynn says:

          You know, of the four recently released opinions it’s the “Combined” one that seems least appalling to me. But that’s the one Comey was reported to have said would make us ashamed (though I suspect the reporting on it might be wrong).

          But Comey of course knew how the techniques used in combination could be deadly.

          It has been these thoughts on torture which have been haunting me and why I have been pushing wanting to hear more from Comey and wondering what he tried to do in the year he stayed after Goldsmith left.

          He had to have been smart enough to leave a legal trail of bread crumbs.

        • Mary says:

          IIRC (I need to go back and re-read them) the “combined” one is where they bury the part about abandoning even the pretense that they are doing these things to high value al-Qaeda members and say that it is ok for any detainee. They also abandon even the pretense that this is what we do to SERE trainees (which was destroyed internally in even the August memo, but still)

          The “any detainee” part, to me, was shocking. No ticking time bomb, not even a “hey, we’ll find out whether Bin Laden likes mint chocolate chip better than butter pecan truffle” but here’s stuff you can do to anyone, aywhere. At that point it’s clear that you’re drafting around an IG report that indicates you had “mistakes” in your renditions, deaths, people who were never “high value,” serious physical injuries, lots of mis and dis information from the torture leading to other torture or acceleration of torture events to try to justify the prior torture with some kind of information, etc.

          Even without combination, they could be deadly. And even as disgusting as it was, the slide show leaves out so many things that appear over and over in reports as happening. Threats to family (some of which may have been carried out); drugging, anal assaults, “disappearing” (in and of itself about the worst imo); long term isolation; being kept in complete darkness for months, etc.

          Binyam Mohamed (per Grey’s book) indicates that the music played non-stop at the Dark Prison caused one “detainee” to end up with perforated eardrums and it went on, nonstop, while detainees were kept in total darkness, for months – naked and chained to the ground in stress positions or hung in stress positions. El-Masri describes a Tanzanian whose hand was broken in beatings and who was then locked in a “small suitcase” where he panicked and vomited repeatedly and a detainee whose legs swelled from his stress position hanging to the point that he had to be taken off for injections. And these weren’t the “KSMs. Who were they? There’s a lot for whom there is no accounting, including at least one in an unmarked grave in Afghanistan, frozen in his torture death. If he is still there – while Dostum was digging up his evidence of war crimes for further destruction, the CIA may have done the same.

  6. acquarius74 says:

    Do we have any hard evidence of the specific questions these interrogators rorturers were allegedly ‘asking’ the detainees? Were the answers wanted implanted in the questions?

    CIA brags that Zubaydah “broke” after 30 seconds of waterboarding. So….why was it necessary to waterboard him 82 more times?

    • perris says:

      that was cheney and his team b, it was the haliburton contractors, I do not believe the professionals said he broke or gave information from torture, to the contrary, I’ve read the professionals say they got all their information UNTIL they began the torture

      • acquarius74 says:

        perris, my understanding is that the FBI interrogators [Soufan aka “Thomas” and another named Gordon(?)] treated Zubaydah humanely and he told them that KSM was bin Laden’s man. Tenet found out that FBI had gotten info from Zubaydah and hit the ceiling (jealousy) and convinced Bush/Cheney to turn the interrogation over to CIA. The torturer the CIA brought in was reportedly James Mitchell (of Mitchell-Jessen), the SERE school quacks.

        Soufan had a big heated quarrel with the torturer (Mitchell ?) right there in the interrogation room. This event led to FBI’s pulling out of the interrogations.

        Have the names of Cheney’s ‘team B’ ever been revealed?

        • cinnamonape says:

          Were the FBI compartmentalizing this information so they could use it in trial…and Cheney wanted it for other purposes? Why should Cheney be upset with the info. received by the FBI…unless it appeared truthful…and he wanted false confessions.

        • acquarius74 says:

          I agree with both your comments (@52 and 53). hmmmm, maybe those tapes would reveal that those tortured did not say what BushCo claim they said; or would show how those torture-produced statements were parsed, twisted, rearranged to fit what Bush/Cheney wanted to hear to justify preemtive war on Iraq.

    • cinnamonape says:

      They were supposedly getting permission by cable for everything they did, in real time. I think that they, themselves, would not have the appropriate intel, nor be able to understand how to proceed with it. So they were getting the questions from Langley, then applying whatever technique was asked for, then they would send back the information and request for further orders. This seems terribly inefficient unless there are direct transcribers, a translator, and other assistants available. I don’t think it was simply Jessen and Mitchell there. Plus there were the videographers.

  7. TheraP says:

    I find it troubling that even the man who could rip up the OLC logic based on the Constitutional protections and an awareness that:

    the program developed “interrogation plans” to disorient, abuse, dehumanize, and torment individuals over time

    seemed on the video so devoid of emotion or compassion for the victims, but simply talked about all of it as if it was just an intellectual argument he was having in 32 episodes… or whatever number he termed it.

    To think this was the man who disagreed, and he’s so cool and calm, as if this is just one of those things that “lawyers disagree all the time” over: Well, honestly, it shocks the conscience!

    If this was one of the “good guys” (so to speak)…. Well, I am stupified! I am dumbfounded! This is exactly the kind of thing that gives lawyers a bad name! Just an intellectual exercise…. (And forgive me bmaz and Mary and other lawyers here. Of course I’m not referring to you. But just as the psychologists who perpetrated these abuses have harmed psychology, so have these lawyers, even including him, harmed their profession!)

    • bobschacht says:

      You are talking about Zelikow here, aren’t you? I kinda had that same perception. It was almost like he was channeling Dr. Spock (The Star Trek guy, not the baby doctor).

      Bob in HI

      • TheraP says:

        Sorry if I was not clear. You are correct. It was just so strange. Reading his stuff makes you want to tear your hair out. But hearing him speak… very weird!

        • TheraP says:

          None of them seem to have cared about the victims they ordered tortured. Huge contrast in Obama making it clear he wants lawyers who have compassion. He said it about the Supreme Court, but I presume he means it across the board. At any rate we need a huge contrast!

  8. scribe says:


    I’ve just scratched the surface of the law on the conditions of confinement issues. What we all have to remember is really quite simple:

    All the egregious conditions which these detainees were subjected to violated one or another of the basic principles of law which govern prisons in the United States and have for the better part of a half-century. Every one of those lawsuits which prisoners or prison rights activists have brought against jailers – to prohibit horsewhipping prisoners, to compel clean food uncontaminated by the cooks jerking off into the soup, to forbid the guards from turning the dogs loose on them for sport, to bar gladiator matches, to ensure adequate air, light, recreation and space, to make sure the temperature is not too hot or too cold, to make sure they can get and read a newspaper or magazine, to make sure they can practice their religion without interference – literally thousands of lawsuits dating back to the Fifties, went into building the body of law which is under the shorthand of “Conditions of confinement”.

    Those sorts of lawsuits were a real bete noire of Republicans for many years. They worked assiduously to change the law so things which were once illegal are now legal – this was the work of their judges. They worked as hard to make it difficult for prisoners to file cases in the first place – changing in forma pauperis law to deprive prisoners of the right to file cases without coming up with the (now) several hundreds of dollars it takes to file in federal court. And they worked assiduously to add new immunities never before imagined.

    FWIW, one of the states which has, perennially, been one of the worst offenders against basic human decency when it comes to conditions of confinement is, unsurprisingly, Texas.

    When the Republicans got a whole new prison (system) where they could set it up the way they wanted, well, you see what you get. They took an axe to that body of law.

    • acquarius74 says:

      Thank you scribe for all your work. You and bmaz interpret the law for us in ways we can understand. Mostly I just lurk and try to learn.

    • bmaz says:

      Don’t know if you read the pleading I linked I linked both on the Bradbury Gestation thread, and again @4 above for the Hart Litigation, but the discussion on all this is very good in it. Starting on page 6 of the opinion is a great dissection of the law which goes through page 10, then followed by a point by point application to specific conditions, medical treatment, dental treatment, food, etc. It lays out the everything.

      • scribe says:

        Read it after your responding comment; I only pulled the book yesterday to get the exact language. I litigated a bunch of these cases and, though it was a few years ago, you know how you don’t forget.

        When I saw what governments could be getting away with, it made me sick at heart and I had to give up those cases.

        • bmaz says:

          Yep, I know. I have friends that have worked on Hart at different stages. They keep kicking the Sheriff’s ass, and through three or four different sheriffs, many judges many federal court injunctions against it etc., the same shit just keeps going on. It is sickening.

  9. behindthefall says:

    seemed on the video so devoid of emotion or compassion for the victims, but simply talked about all of it as if it was just an intellectual argument

    Yes; that’s it, isn’t it? And I think that it extended through that whole Administration. And that it was no accident. But Addington seems to be particularly disconnected, as though something is really missing.

  10. JohnLopresti says:

    April 29 2009 renewed complaint:…”Hamed Abderraman Ahmed, Spanish citizen, during said military action, fled Afghanistan together with others, being captured in November 2001 in Pakistan by its military, where he was kept 2 months. From Peshawar he was transferred by North American military personnel to a prison camp in Kandahar Afghanistan, where he remained approximately one month until his final transfer in January 2002 to the US military detention base in Guantanamo Cuba.
    “1) the cell in which he was placed in the so-called Camp X-Ray at Guantanamo afforded him little more than a half yard of room to move;
    “2) During almost 1 year he, and the other interns, which at that time numbered several hundred, was/were permitted to go out only twice weekly for 15 minutes.
    “3) He endured constant interrogations without legal assistance during the time of his internment.
    “4) The cells were made of iron in so-called Camp Delta, and wiremesh in X-Ray, which augmented the effect of heat upon the detainees.
    “5) The cells had electric light on permanently day and night, which produced changes in vision and sleep.
    “6) The (jailers) continuously played North American patriotic songs over loud speakers at high volume.”

    “Lhacen Ikassrien, Moroccan citizen who resided in Spain 13 years was detained in November 2001 in Afghanistan and transferred from Kandahar to Guantanamo Cuba June 2 2002 by US military personnel. According to statements in his court declarations in Spain, he was never told why he was deprived of his liberty. During his stay in the North American military base in Guantanamo, allegedly:…
    “2) He was subjected to interrogations without a lawyer’s being present.
    “3) He was in an isolated cell during much of the time.
    “4 He was punched in the testicles.
    “5) He was administered an injection of what was called “canine cysts”.
    “6) The cell in which he stayed was very white with constant light which impeded obtaining enough sleep, and affected his vision.
    “7) They introduced very cold air into the cell, and using that air introduced chemical substances which affected his breathing and his joints.”

    “Jamiel Abdelatif al Banna
    “1) He was submitted to approximately 1,000 interrogations in sessions lasting 2-10 hours daily, including 2 times a day, at any time of the day or night, in conditions of extreme heat or cold, placed in ankle shackles and wrist manacles in forced positions, seated on the floor with the body bent forward and with the interrogators placing weight on his back to increase pain sufficient to cause him to scream from the effects, and it was impossible to stand up on his feet afterward.
    “2) During months, during continuous interrogations he only received punishments without any questions.
    “3) He was threatened with death by poisoning or drowning in the ocean.”

  11. SparklestheIguana says:

    No, we are misconstruing/taking out of context what Fein said, and why he said it.

    This is what Fein said. Moyer asks him what he would have asked Obama at the last presser.

    BRUCE FEIN: I would have asked him, since he’s agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there’s no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.

    Or in the alternative, if he thinks that there are mitigating circumstances, and there’s body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn’t illegal.


    BRUCE FEIN: But you cannot separate the political from the legal, the constitutional.

    MARK DANNER: Oh, I agree with that.

    BRUCE FEIN: The President of the United States, the Attorney General, when I was in office, I took an oath to uphold and defend the Constitution of the United States. Meaning, to enforce it. And there’s a way out of that. You can issue pardons. You don’t have a right to consult the political forces, say, “I’ll just ignore the law.”

    And in fact, in 2004, we confronted the same problem we had with Nixon. He wasn’t going investigate Watergate and the obstruction of himself. That’s why I had a special prosecutor, and ultimately an independent counsel. That hasn’t been done in this case. But now, the President and the Vice President who authorized this are gone. So, there’s no obstacle. If President Obama didn’t want to be President and faithfully enforce the laws, he shouldn’t be there.

    MARK DANNER: You know, let’s–

    BRUCE FEIN: He should issue a pardon.

    But I want to go to the more important issue. This is the whole idea of who we are as a country. If you think the law is handcuffing you, you change the law. The President can’t say, “I just flout the law.” That’s what banana republics and tyrannies do.


    BILL MOYERS: So, what do you want Obama to do, Bruce?

    BRUCE FEIN: If Obama thinks that these people, and he’s said, have committed torture, and he doesn’t believe it should go forward for political reasons, he needs to pardon them.

    BILL MOYERS: Before they’re convicted of anything?

    BRUCE FEIN: Yes, that’s what happened with President Nixon. He wasn’t accused of anything. He wasn’t indicted. You can issue pardons before there’s a formal accusation.

    BILL MOYERS: So, therefore– then what?

    BRUCE FEIN: Then at least we do not have a situation where we have set a precedent that lies around like a weapon, that you can violate the law with impunity. Then, at least, at that point, we can have a full investigation. There’s no criminal culpability.

    BILL MOYERS: You would follow the pardon with an investigation?

    BRUCE FEIN: And try to–

    BILL MOYERS: Congressional investigation?

    BRUCE FEIN: Yes.

    BILL MOYERS: Special prosecutor?

    BRUCE FEIN: We need Congress to get back and do its work, Bill.

    It’s worth reading the whole transcript.


    • klynn says:

      There’s no criminal culpability.

      Except for Obama at that point.

      Watergate did not violate international law.

    • bmaz says:

      Well the problem with that is that there really is not necessarily any affirmative acceptance of guilt or wrongdoing with a pardon, contrary to what Fein says. There can be depending on whether or not the pardon has to be affirmatively alleged to stop prosecution, but to use Fein’s own example, Nixon never admitted diddly squat.

      I do understand the point Fein is making, which is that Obama cannot simply refuse to uphold the law; crappy way to make the point though.

      • stryder says:

        Brian Tamanaha has a great explanation of the use of the OLC as a means to an end.
        If I’m reading it right the only way you can stop this from happening again is with an amendment to the constitution


    • skdadl says:

      From Fein’s arguments:

      But I want to go to the more important issue. This is the whole idea of who we are as a country. If you think the law is handcuffing you, you change the law. The President can’t say, “I just flout the law.” That’s what banana republics and tyrannies do.

      Early on in the discussion, Fein made this point repeatedly and emphatically, with no qualification, and it started to bother me because it seems to me that some laws are so fundamental to democratic structure and principle, not to mention international covenant, that “changing” them in the way he meant should be unthinkable.

      Later on, he did pursue the scenario that “changing the law” would lead to — Congress and the people are presented with the choice: do we decide that we are a nation that tortures? — in a way that reassured me, but he had made his point about “the law” so narrowly and abstractly for so long that it felt more like a hobby-horse than a principle of democracy. Laws, and especially documents like the Bill of Rights, don’t come out of nowhere.

        • bobschacht says:

          This is a distortion of Fein’s position. He’s not advocating pardons; what he’s trying to do is to get Obama off the dime, and either prosecute or pardon– meaning the latter only if Obama wants to “look forward” and not punish President Bush.

          Bob in HI

  12. SparklestheIguana says:

    What Fein is saying is we as a country, Obama as president, need to uphold the law. We are a nation of laws. Fein is saying – a crime or crimes WERE committed here. Either there were mitigating circumstances, or there were not. Either way, there needs to be an investigation. Fein thinks Obama thinks there were mitigating circumstances; therefore, Fein says, Obama should go the pardon route. Fein is saying Obama should go the pardon route only because Obama thinks there were mitigating circumstances. In no way is Fein saying “torture is okay, let’s start handing out the pardons.”

  13. SparklestheIguana says:

    And one further exchange:

    MARK DANNER: We’re talking about Watergate again, of course, because this was in the aftermath of Watergate. They uncovered all kinds of assassination attempts, C.I.A. wrongdoing. And, in fact, from that point on the President, who before would have basically said, “I didn’t know about that.” Henceforth, as a result of those hearings, the President had to sign a finding and say, “You know what? Do this. I order you to do this. I’m the President. This is legal.”

    We have that in this case. And the result is, of course, the C.I.A. was very concerned to get their legal golden shield. That’s why we have these documents. The result is that the entire government is implicated. I admire Bruce, because he has the courage of his convictions. He’s saying, “Prosecute the President. Prosecute the Vice President.”

    BRUCE FEIN: Or pardon. No, and I’m not saying that. I’m saying you can pardon him. You can pardon him.

    BILL MOYERS: Isn’t there the assumption of guilt, if you pardon them?

    BRUCE FEIN: Of course, there is. And that prevents it from being a precedent that you can violate the law with impunity. That’s why it’s important to have a pardon rather than non-prosecution.

    Seems pretty clear to me he’s saying prosecute, or pardon. Gotta pick one. It does sound like he’s agnostic as to which one.

  14. Loo Hoo. says:

    Has this been covered yet?

    Sen. Sheldon Whitehouse, a top backer of a “truth commission” on torture, is taking matters into his own hands, starting with a May 13 hearing of a judiciary subcommittee he chairs. Along with Soufan, he also plans to call former State Department official Philip Zelikow, another internal critic. According to a Senate Democratic aide, who also asked for anonymity, Whitehouse wants to keep a public spotlight on the issue until the next bombshell: an internal Justice Department ethics report on the lawyers who wrote the interrogation memos, which could be released within the next month.

    • portorcliff says:

      Hmmm…this development starts to corroborate Bmaz’s assertion that Whitehosue is taking a stronger role. I’m for that.

    • LabDancer says:

      The Isikoff/Hossenball piece is has at least a couple of teases to the effect that Durham’s investigation may have come to range wider than simply obstruction–like maybe might be attributable to events intervening since the Mukasey instructions–like maybe inauguration of a new president and swearing in of a new AG. But really: aren’t the things being pointed out precisely within the ambit of an investigation into destruction of the tapes? Plus a part of the effect comes with conjoining the leaks on the ambit of Durham investigation to the Whitehouse initiative–except since we wouldn’t expect to see material witnesses [material to torture lawyering and ordering] like Soufan and Zelikow coming out so openly publicly, and being scheduled for a hearing by a senator sitting on both the intel and judicial committees, which kind of implies just the opposite of the tease …unless…

      Unless of course they’ve already testified–noting that while the tip on Senator Whitehouse’ intentions are attributed to a “Senate Democratic aide”, the bumpf on Durham’s progress is attributed to “three legal sources familiar with the case”–implying [but not necessarily necessitating] lawyers.

      But lawyers aren’t supposed to do that [really! okay, the Plame pleak inquiry might have been the exception that proves the law], and sure as hell wouldn’t appreciate being pointed to; what in hell point is there in describing one’s sources “familiar with the case” as code for lawyers–unless what you really want to achieve is misdirection from the fact that one or more are not lawyers? [at least not acting as such on the case]

      So who else “familiar with the case” might be accurately described as “legal”? Witnesses. Uhn–I’m just no good at Isikoff-speak. Know anyone who is?

  15. Mary says:

    OT and not appropos of much, but wanted to dump it while it was on my mind.

    EW – while you are connecting dots, in Nashiri’s initial hearing with the military commission, his transcript says that one of the things he “confessed” to (and claims was the result of torture) was the Bin Laden had a nuclear weapon


    More on topic – one of the points of the OLC memos is that they are making their points not only under the Constitution (5th/8th) but also domestic statutes (like the torture act and war crimes act) and so they are domestic precedent (one reason I keep mentioning the pending torture-revisted Burdge case in Chitown, where they are actually going after them for lies bc of the statute on the torture) I’m waiting for Obama to ante up with, “hey, when Chicago police tortured black men, it was a policy decision; we shouldn’t look back, they were under a lot of pressure, there was a cop killer, they aren’t going to do it in the future but we shouldn’t criminalize their policy decision to torture black suspects okthnxbai”

    Or not.

    BTW – Miliband is AGAIN sayiing that the Obama admin is threatening a problem with relationships if the Binyam Mohamed info is leaked.

    • SparklestheIguana says:

      No, if only because Congress benefits hugely, I think, from having former federal prosecutors (or I guess any kind of prosecutor) there to grill the dirty stinking bastards who come before them.

  16. cinnamonape says:

    Zach Roth at TPM says that he emailed Zelikow who replied : “The memo I mentioned was highly classified at the time. So any extant copies, or drafts, would only be in an appropriate government safe. Any extant copies at State would be in their archival facilities for top secret papers from my files, or possibly Bellinger’s files, or Secretary Rice’s files.”

    Sounds like there were at least three copies that Zelikow didn’t personally retrieve and destroy.

    My bet is that Rice herself ordered the memo vaporized. She was Zelikow’s immediate superior, and the one that he would have had to “obey”, short of the President.

    The question is whether his personal files were purged after he left. Did Condi go and get it herself?

  17. MrWhy says:

    Zelikow says:

    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.

    Was the effort to obliterate Zelikow’s memo an obstruction of justice, even if it didn’t succeed? Has anyone (e.g. Whitehouse) asked for a copy of Zelikow’s memo? Note also that Zelikow says memos. Is he suggesting that there was back and forth about his interpretation vs Bybee/Yoo, which might also exist in the form of memos?

    People also say that Zelikow is unemotional about the issues. I’d say he’s very quiet emotionally, but he does in his own way become animated.

  18. lllphd says:

    wow, catching up with the exchanges here, glad to see the FEIN (thanks again, bob) points have been considered. having watched the exchange friday night, i honestly felt he was making the points that (a) we have to take legal action, (b) it’s a political hot potato for obama, and (c) one way to resolve that dilemma for obama would be to issue pardons and then pursue investigations. his emphasis was on the fact that the pardon requires presumption of guilt, but bmaz is right when he destroys the watergate analogy by noting that nixon never admitted didley (hence the infamous line that condi has now borrowed). what disturbed me, tho, was that he seemed to forget the real emphasis of the concept of a pardon; namely, this is an act of forgiveness.

    i honestly feel, once all the truth is out and the american people see it for what it was – and is – there will be very very few citizens in a forgiving mood. i mean, this is SO not watergate.

  19. klynn says:


    One last thought about Comey. I am very close to someone in my family who has combined degrees in Chemistry, Religion and international relations (with an emphasis in international law). This is almost Comey’s educational background, minus a law degree. I have noticed lots of similarities between this family member and Comey in terms of thinking process. Comey has also read a great deal of Reinhold Niebuhr. Niebuhr was pretty clear on his perspective on Justified War Theory. Thus, I carry the import of Comey’s views on the “combined” with great weight. Perhaps as big a weight as your 186 in one month discovery.

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