Philip Zelikow Saves Condi Rice’s Hiney (Again)

Back in April 2009, former State Department Counselor and all-around Condi Rice fixer Philip Zelikow revealed that “in 2005,” he had written a dissent to Steven Bradbury’s 2005 Memo finding the torture program complied with the Convention against Torture, but that most copies of it had been destroyed by the Administration.

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.

It turns out that David Addington didn’t succeed in destroying all the copies. The National Security Archive just liberated a copy.

Now, the memo (which was actually dated February 15, 2006) reveals Zelikow’s very sane legal argument that our torture program had to comply with the 8th Amendment. But it also reveals some subtleties about the bureaucratic maneuvering around torture. Notably, that Zelikow was trying to save Condi Rice’s arse again.

To understand why, go back to this post (see also this post), explaining what Bradbury was trying to do with his 2005 CAT Memo: respond to explicit concerns raised by Congress (probably Jay Rockefeller) about whether our torture program complied with the CAT. It shows how (as documented in the narrative on the process that Rockefeller released), the Senate Intelligence Committee had forced the Bush Administration to agree to consider whether our torture program violated CAT. The Administration agreed to do so only after the National Security Council–then chaired by Condi Rice–agreed.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

DOJ stalled for 10 months. Daniel Levin, as acting head of OLC, approved more individual torture techniques. Levin wrote an unclassified memo ignoring CAT. Congress continued to pressure. The Administration laterally transferred Levin because he wasn’t writing the memos they wanted, authorizing combined techniques and waterboarding and, somehow, finding that torture program complied with CAT. Bradbury got the job to write those memos. And then, finally, 10 months after SSCI demanded that DOJ consider CAT, Bradbury wrote his memo finding that the torture program did not violate CAT’s prohibition against cruel, inhuman, or degrading treatment.

I lay out in the post the specious tricks Bradbury pulled to make that claim, and scribe laid out the legal reasons the arguments were so specious. But in specific regard to SSCI’s demand that OLC review whether the program complied with the Fifth, Eighth, and Fourteenth Amendment, Bradbury punted by saying it didn’t have to, and certainly didn’t have to comply with the Eighth.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.


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.

After reading drafts of such bullshit, Jim Comey tried to convince Bradbury to fix it–to no avail.

Of note, however, here’s what then Attorney General Alberto Gonzales said Condi–who had become Secretary of State in the interim–had to say about the importance of complying with our treaty obligations.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

And so, with the Secretary of State dismissing treaty obligations by saying “that ended it,” torture got approved for use by the Executive Branch again.

Zelikow’s memo admits that State didn’t object to Bradbury’s memo.

The State Department agreed with the Justice Department May 2005 conclusion that [Article 16] did not apply to CIA interrogations in foreign countries.

Now, Zelikow claims that passage of the McCain amendment–which was signed on December 30, 2005–is what changed the State Department’s interpretation. But in his statement to SJC from 2009, he says they started addressing these issues in June 2005–almost immediately after the memo was approved.

In 2005, I became Counselor of the Department of State. This should not be confused with the duties of the State Department’s Legal Adviser. The “Counselor” is an old office at State, a place where the Secretary puts someone who serves as a kind of deputy on miscellaneous issues. Among my duties, I was to be the subcabinet “deputy” for the Department on issues of intelligence policy or counterterrorism. By June 2005, President Bush wanted to reconsider the current approach. He asked his advisers to develop real options for the future of the Guantanamo facility, for the eventual disposition of detainees held by CIA, and to look at the standards governing the treatment of enemy captives.

Secretary of State Condoleezza Rice was in favor of change.


Subcabinet deputies began meeting regularly in highly sensitive meetings to consider these issues. I represented the Department at these meetings, along with Mr. Bellinger. I was thus ‘read in’ to the details of this particular CIA program for the first time.

And while Zelikow signed memos in 2005 that sustained OLC’s claim that the detainees were outside the jurisdiction of CAT, his 2006 memo amounts to a sustained critique of Bradbury’s CAT memo, in particularly its dismissal of the Eighth Amendment.

OLC did not cite Eighth Amendment precedents in its 2005 opinion because the Eighth Amendment would not apply to people who had not been judged guilty of a crime. (1) This argument confuses two kinds of references. The Senate commanded that the “cruel and unusual” standard be used for substantive definition of conduct prevented by the treaty, not for a definition of the categories of people who could claim the treaty’s protections. (2) The distinction is also substantively immaterial. No constitutional protections formally apply to these prisoners. The protections, including the Fifth Amendment ones that OLC acknowledges, are all being artificially imported to them by the operation of CAT and the Senate reservation. The Eighth Amendment carries over just as well, both directly and through its inclusion as an aspect of the substantive due process protected under the Fifth and Fourteenth. (3) The Eighth Amendment is a minimum standard. If we reject this standard because the people have not been convicted of a crime the government must find a standard of treatment even higher, and more restrictive, that would apply in situations like pretrial detention or civil commitment.

(Note, kudos to scribe, whose comment on these issues hits on the same issues Zelikow’s memo did, including its applicability to all of us in county jails.)

There are several other long passages that make it clear that Zelikow’s memo is a rebuttal to the weakest parts of Bradbury’s memo–which Condi, as Secretary of State, reportedly approved by saying, “if DOJ said it was legal and CIA said it was effective, then that ended it,” but which Zelikow appears to have started fighting within weeks after she gave that approval.

All of which brings me to one of the most interesting revelations with the publication of this memo. When Zelikow revealed its existence, he downplayed his bureaucratic authority for objecting to OLC’s analysis.

My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion.

When Zelikow testified to the Senate, he affirmed OLC’s unquestioned authority on matters of legal analysis (even while explicitly criticizing the OLC language addressed with his memo).

The Justice Department’s view was authoritative for the
executive branch and was immovable.


Therefore, to challenge OLC’s interpretation, it was necessary to challenge the Justice Department’s interpretation of U.S. constitutional law. This was not easy, since OLC is the authoritative interpreter of such law for the executive branch of the government.

But in the memo itself, he made a bid for greater authority than that.

The prohibitions of Article 16 of the CAT now do apply to the enhanced interrogation techniques authorized for employment by CIA. In this case, given the relationship of domestic law to the question of treaty interpretation, the responsibility of advising on interpretation is shared by both the Department of State and the Department of Justice.

Philip Zelikow asserted, in writing, that the State Department shared authority with OLC on how to interpret our treaty obligations. He stated, in writing, that the State Department held that detainee treatment had to comply with the Eighth Amendment. As soon as he did so, the torturers tried (but failed) to disappear that memo.

I don’t want to minimize Zelikow’s efforts here. His legal analysis certainly puts Bradbury’s to shame. He clearly fought, for over a year, to force the Bush Administration to adopt humane treatment, and he was clearly a key player in having won that fight. I hope–but doubt–there are people within the Obama Administration waging similar fights.

But at least according to Gonzales’ admittedly biased interpretation, Condi Rice bought off on Bradbury’s shitty analysis back in May 2005, when she had some opportunity to back Comey’s efforts to defeat it. Almost immediately, Zelikow started trying to reverse that damage (note, his July 2005 memo on these issues at least appears to suggest he had not yet read the CAT memo yet). But it took Zelikow 7 months until–with Condi’s announcement in December 2005 that the government would adopt the “Cruel, inhuman, and degrading treatment”–State began to make headway on these issues, and it is clear he was still fighitng a losing battle in February 2006.

Philip Zelikow did really important work fighting the Bush Administration’s efforts to defy international obligations on torture. But the written record, at least, shows that he was fighting, in part, against the negligence of his boss, Condi Rice.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

34 replies
  1. klynn says:

    We knew EW was ahead of the times.

    So, how did this get released/found now? Interesting timing after the release of the JPRA/PREAL doc.

    Wonder if PZ has a good friend at National Security Archive?

  2. pdaly says:

    “[Condoleeza Rice’s] attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.”

    Sounds like Condi let other people do her homework. It’s a good thing Zelikow was there to redo her homework–although no one has made it to the Hague yet for torture and crimes against humanity, so I guess it may not matter.

  3. emptywheel says:

    @David Swanson: My first instinct is to say, “no, of course not.”

    But there’s part of me that hesitates in this particular case.

    Part of the reason I say that is bc we still don’t know who leaked stuff like the IG report to Dana Priest. Or the ICRC report to NYRB. Zelikow is one possibility, though not the only one.

    The other reason is because I wonder whether it’s better to expose this, but ALSO to end the torture program, or to expose it while allowing the Admin to retrench in its support of the program. That is, for better or worse, Zelikow was one of about 4 people who really pushed to close the worst black sites and get us to stop using torture. They did so by wielding bureaucratic heft–the same way Cheney instilled torture. By quitting and exposing it all, they lose the bureaucratic heft.

    Consider, for example, Obama and targeted killings. Thus far, all that’s been leaked is the content of the OLC memo (and it’s not entirely clear whether that was done to relieve pressure on releasing it, which is what happened in fact, or to expose the problems with the analysis). Aside from ending the signature strikes–which appears to have been done on strategic, not humanitarian or legal grounds–nothing has worked to act as a similar check within the Obama Admin.

    In short, I don’t know the answer to your question, but I’m not entirely sure the answer is so easy. 

  4. emptywheel says:

    Scribe emails the following:

    there was some of that Zelikow stuff that sounded familiar. Of course, he pulled his punches. Weak dissent, if ever there was one. I suspect he was writing it in his spare minutes or something.

    Then again, I think some of those comments I wrote in one draft straight off the top of my head and from memory. I’ll have to go back and look at the timestamps and calendar to be sure.

    Of course, if some lawyer who couldn’t be any good because (s)he’s not making any money, who was a couple weeks away from being sued to foreclose on the condo and had no work could sit down and write the comments I wrote off the top of my head and from memory, you have to wonder why the fuck the government was paying clowns like Addington, Goldsmith, Zelikow the money they were paying them. It surely wasn’t to give good advice. It must have been to give the advice the criminals in charge wanted to hear. They were high-priced whores, not much more….

    Thanks for the kudos, but the continued freedom those clowns enjoy make it cold comfort to me.

  5. Frank33 says:

    Dr. Evil Zelikow we meet again. What evil conspiracy are you plotting. I will check the Searching Engine….Ah he is an “associate dean”, or is that Dean of Recruiting Spies!

    He is a partner with the Bill and Melinda Gates Crime Family and on the Intelligence Advisory Board. So he remains a Beltway puppetmaster, and probably is making the war policy. The Intelligence Advisory Board is that cabal of billionaire Dr. Evil’s who rule the world, badly. It is a “Board” of Corporate CEO’s that tell the President what False Flag Ops are needed, and who to assassinate and torture.

    He also advises the Bill & Melinda Gates Foundation’s program in global development and is a member of President Obama’s Intelligence Advisory Board.

    I thought President Obama wanted change. Zelikow is directing more war crimes of the Obama Administration, same as always.

  6. pdaly says:

    Maybe a coincidence of the timeline, but did Zelikow write that State Dept memo thinking that Justice was on the prowl?

    Libby was indicted by Patrick Fitzgerald on Oct 28, 2005 for obstruction of justice, lying to the FBI, and committing perjury in a grand jury during the CIA leak investigation. It is the only rule of law instance that I could think of in the Bush timeframe.

  7. Jeff Kaye says:

    Philip Zelikow asserted, in writing, that the State Department shared authority with OLC on how to interpret our treaty obligations. He stated, in writing, that the State Department held that detainee treatment had to comply with the Eighth Amendment. As soon as he did so, the torturers tried (but failed) to disappear that memo.

    Yes, this is very important, and certainly explains whey they tried to bury the memo, that and the labeling of some of the EITs as unlawful.

    But I don’t believe one can say that Zelikow fought “to force the Bush Administration to adopt humane treatment.” He had legal objections to some the techniques, and that’s all.

    Towards the end of the document, Zelikow finds the following to be legal or probably legal:

    — “basic detention conditions” (which by the context of the piece I take to mean use of isolation, which he never declares unlawful)

    — “corrective techniques, such as slaps” (in other words, controlled beatings)

    — nudity (creates fear, a feeling of degradation)
    — sleep deprivation (to disorient, create debility, cognitive distortions)
    — liquid diet (to weaken the prisoners, put them in a state of semi-starvation)

    In other words, Zelikow is an opponent of most of the “physical pressures” but not the psychological pressures. The latter are what are part of the CIA-originated KUBARK manual techniques. The old CIA eschewed physical techniques as usually counter-productive, creating oppositional attitudes in prisoners, or making them too debilitated for exploitative use. The KUBARK technique was based on the psychological DDD model (“Dependency, Debility, Dread”).

    Zelikow is not a humane opponent of torture and cruel, inhumane or degrading treatment of prisoners, he is merely a pettifogging critic of the EITs, especially as they put them at odds with even the Reservations to CAT. It was all about saving the CIA/DOD’s ass.

  8. lysias says:

    As executive director of the 9/11 Commission Report, Zelikow has been the object of lots of criticism for his conduct in that position.

  9. Arbusto says:

    Thank god this is all academic. Since Obama LLC is forward looking and forgiving of sins against the rule of law, who will be investigated or brought to what remains of justice in the USofA. Future tourism in Europe is bound to drop because any number of us can’t leave our border because of indictments for crimes against humanity brought by Spain or The Hague, though no one will be extradited.

  10. DWBartoo says:

    @Jeff Kaye:
    Considering the qualms he professes to have harbored, Zelikow’s reactions to the torture he knew was ongoing, and any efforts he made to halt or discourage the practice of those methods to which he claims to have objected, were exceedingly meek and very mild “efforts”, calculated to raise no hackles and shiver not even the most tiny of ripples. He put neither himself nor his career at any conceivable risk. No whistle-blower was he, Jeff. When one adds his role on the 911 Commission to other factors, we find a man committed not to truth, justice, or reason, but to power, connection, and influence.


  11. ICC you says:

    If Zelikow had a grain of sense, and he evidently did, his intent would necessarily be to leave a paper trail contradicting those absurd rationales for CAT violations. Times change, you know, and if Zelikow hoped to enjoy some foreign holidays in retirement, he had to make sure that somebody else was the hostis humani generis. Otherwise he might have to skedaddle home every time some mischievous foreign pol yanked his chain (like the Swiss and the Spanish and Lawyers Against Torture are doing to Cheney and Bush.) The Bush torture doctrine has already failed the laugh test in the Committee Against Torture, , and our next review is going on right now. This review will no doubt repeat and stress the part about, “The State party should promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates.” Failing to do so breaches CAT Article 12 and makes it Mister President Obama’s crime too. Now Zelikow can say tsk, tsk. He’s off the hook.

    The Torture Committee, along with the rest of the civilized world, is pushing the US toward Rome Statute accession, toward Article 22 competence declarations, and toward voiding its contempible “executing/non-executing” bullcrap. Remember when the Soviets got caught in that “web of living law from which they cannot extricate themselves without large cost, but in which they cannot remain without occasionally yielding to pressure for change,” like John Hargrove predicted? Well, now the US police state’s got its tit caught in that wringer, too.

  12. Peterr says:

    Another piece of evidence to add to the pile.

    I still dream of a prosecutor making an opening statement that ends like this:

    Selective citations in legal memos. Selective and misleading notification of Congress. Obstructing legitimate oversight. Attempting to sweep the record of the OLC out the door. This is the pattern of careful attention to detail exhibited by of the Office of Legal Counsel under Attorneys General Ashcroft and Mukasey.

    These high ranking DOJ lawyers put “getting ahead” and “pleasing the boss” ahead of their duty to the Constitution of the United States and their own obligations as lawyers to follow the law where ever it leads. They sold their legal souls by providing the cover of law to practices so abhorrent that they are called not crimes against the state but crimes against humanity.

    Our own humanity demands that we hold them accountable for what they enabled: the acts of torture that were carried out in our names.

    And I dream of getting a pony, too.

  13. joanneleon says:

    @pdaly: Come on, Condi had some piano practicing to do so that before she left her position, she could invite herself to play for the Queen.

  14. david78209 says:

    I’m not a lawyer, and I quickly gave up on trying to follow the details of the legal reasoning in this article. I fell back on my plain-sense excuse: “You have to be a lawyer to understand the difference between prohibited torture and waterboarding by the CIA. You also have to be a lawyer to believe there IS any difference.”

  15. jerryy says:

    Zelikow may have been trying to save Condi Rice’s hiney, but consider the following:

    Time / Life Books advertises its WWII series on late night tv by showing footage of kamikaze pilots flying their planes into ships.

    President Reagan pull the troops out of Lebanon after a suicide bomber drives a truck full of explosives into the Marine barracks.

    A suicide bomber drives a boat filled with explosives into the side of the US Cole.

    Hollywood releases a movie called Executive Decision in which the plot involves a terrrorist taking over a hijacking and flying the plane filled with deadly nerve gas into Washington. (Hollywood only does this after peo[le are tire of reading the book.)

    Condi Rice is supposed to be a Soviet Union / Russia studies expert. The Soviets and Russians have a long history of problems with ‘opposition’.

    President Clinton turns down a deal to have had OBL turned over to the US, because at teh tine there was no real evidence connecting him to crimes against the US. (Around the time of the bombing aspirin factories incident.)

    She and President Bush are told directly that AQ is trying to attack the US.

    At the 9/11 commission hearings , the NSA director Dr, Rice tells the commission ‘no one could have anticpated’ that terrorists would hijack a plane and fly it into buildings. She, as a security expert, is the only one that did not anticipate it.

    She may have been saved from the legal end of 9-11 and torture, but her brand is forever damaged. Now if she too travels overseas, or if we get a DOJ that shooses to look backwards …

  16. The Oracle says:

    With this subject popping up again over detainees in U.S. custody, torture, cruel and unusual punishment, dehumanizing and debasing treatment of detainees, I couldn’t help but think of the U.S. Supreme Court’s 5-4 decision last week in which five Catholic Republican-appointed justices ruled that detainees in U.S. custody in the United States can be strip searched, no matter what the reason or how minor the suspected offense might be that got them hauled by the police to jail in the first place.

    IOW, reading the “opinion” of Justice Kennedy in favor of strip searching “prisoners,” no matter why they were picked up, sounds like the arguments Bush administration officials, lawyers or not, made regarding picking up and torturing suspected al Qaeda terrorists, anything goes, the U.S. Constitution doesn’t matter, the Conventions Against Torture don’t matter, American treaties don’t matter.

    Republicans, across the board, seem to be beset with “tortured” minds, “tortured” logic and “tortured” morals.

  17. ondelette says:

    Neither your previous analysis, nor this one, make any mention of the fact that while this is going on (2004,2005,2006) the U.S., spec. the State Department, but usually Ambassador John Bolton and sidekick Anne Patterson, are defending the U.S. against torture and CIDT charges in front of the Committee Against Torture (the repository for the CAT), with initial arguments in 2004-5, and final revision arguments in 2006.

    The Committee rejected the above arguments about reservations to the treaty and the inapplicability of Article 16 due to limitations of the 5th, 8th, and 14th amendments. It actually asserted that reservations or no, States Parties were required to comply with treaties that had entered into force, including in this case Article 16, regardless of jurisdiction.

    It’s possible State wasn’t covering their ass for Congress only.

  18. Bob Schacht says:

    @pdaly: I think we need one of EW’s patented “timelines” of the Zelikow matter, and the Libby indictment deserves a place on that timeline, as evidence for the administration’s state of mind at the time. Thanks,

    Bob in AZ

  19. Bob Schacht says:

    “Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.”

    I wonder if this is connected to the Extraordinary Rendition program, and the reason we outsourced torture to places like Poland? Is there a timeline for the Extraordinary Rendition program?

    BTW, thanks for your excellent analysis. Zelikow had numerous problems to deal with, not least of which were a negligent director, and a belligerent and abrasive David Addington. Not many people would do something that would invite a dressing-down by Addington.

    Bob in AZ

  20. Bob Schacht says:

    One more thing: Rachel Maddow had an important segment on tonight’s show about the Zelikow memo, in a segment called “A History of Violence.”
    She makes the point that the unearthed Zelikow memo means that the Bush administration *knew,* or had reason to know, that their enhanced interrogation techniques were illegal– and that makes it a war crime that MUST be investigated. See the tape of her segment beginning at about 7:00 into the report. Between 3:00 and 4:00 there is a tape of McCain calling out Mitt Romney in the 2008 primaries, stating emphatically that waterboarding was torture, and no weasel-words could change that. The whole thing is worth watching.

    I don’t know if the legal eagles will agree with Maddow, but it is an important new argument that should force the DOJ to re-open its investigation. We have to concede, however, that they have already “investigated” this, and knew about the Zelikow memo (even if they didn’t have a copy), and they decided not to prosecute.

    Bob in AZ

  21. bmaz says:

    @Bob Schacht: Maddow is on drugs. The newly freed up Zelikow Memo, though wonderful for sussing out historical detail, as Marcy has done here, and I know has more to come and filling in detail and framing the narrative. But I got news for Rachel Maddow and anybody else thinking it will “leverage” diddly squat in the form of domestic investigations and/or charges of other accountability actions. It. Ain’t. Gonna. Happen. That train has not only left the station, it is so far down the tracks that it has gone over the horizon. First off, there is no agency to do it. Second, the meat and existence of the Zelikow Memo have been known.

  22. Bob Schacht says:

    @bmaz: I think the key point may be this: The Durham investigation ended without any charges because, IIRC, everyone thought they were obeying the law. The Zelikow Memo proves that this was not true (and this is why they tried so hard to suppress it). The Durham investigation at least knew of the existence of the memo, but they may not have had a copy (at least, they could pretend they didn’t have a copy), so they could wave it off. And so those who knew about the Zelikow Memo, but authorized torture anyway, are indictable. I gather that your argument is, well, yes, but they won’t.

    But there’s more, that Maddow didn’t mention. IIRC, there is a case pending(?) involving two detainees who were tortured (I can’t remember their names), and who were suing the administration (or some part of it) for damages or something. Their case is being carried forward by the ACLU, the Alliance for Justice, or some other major organizations. Won’t the Zelikow memo give them added leverage?

    Bob in AZ

  23. bmaz says:

    The Durham investigation ended without charges because it was a sham. The blather about “intent” was just that – blather for the masses. It was NEVER – let me repeat – NEVER – a bar to prosecution and experience actually indicates was very unlikely to be a bar to convictions by juries. Hell, that is even admitted in one of the memos if you look close enough. I am sorry, other for the kind of sussing that Marcy is doing, and others will as well, I do not think having a hard copy of what we knew existed before does jack shit. The holy grail of prosecutions just is not going to happen.

  24. joberly says:

    EW–There is a lot in the paragraph you quote from James Comey’s April 2005 emails about Dr. Rice’s satisfaction with the Bradbury draft OLC memos. Comey also wrote of his morning meeting with Alberto Gonzales on May 31, 2005 to prepare the AG for the NSC principals meeting: “I mentioned that I heard there was a video of an early session, which would come out eventually.” But if I remember my torture-tapes timeline, Gonzales already knew of the existence of the torture video and, as White House Counsel, had told CIA not to destroy the tapes. That was in 2004. It reads as if Comey thought he was telling AG-AG something new and that Gonzales didn’t try to correct that mis-impression.

  25. bmaz says:

    @Bob Schacht: Unlike Maddow, Spencer does not make the claim that it now suddenly MUST be investigated; in fact, Spencer correctly points out that it was investigated by John Durham and not only did that go nowhere, the Obama Administration basically signed off on and ratified it all away.

  26. Bob Schacht says:

    “Unlike Maddow, Spencer does not make the claim that it now suddenly MUST be investigated;…”
    Did you actually watch Maddow’s report? I believe that “MUST” was my hopeful extrapolation from her remarks. IIRC, all that she said was that the surfacing of the memo challenges Democrats– and Republicans, who used to be concerned about such things– to do what should be done, whether or not Obama’s DOJ feels like doing it.

    Bob in AZ

  27. David Swanson says:

    @emptywheel: Yeah, I didn’t mean to suggest the answer was easy. But I do lean toward saying “No,” for one thing because it ought to be possible to both leak documents AND publicly resign and speak out.

  28. Kathleen says:

    EW “But the written record, at least, shows that he was fighting, in part, against the negligence of his boss, Condi Rice.”

    And not the first time “mushroom cloud” had been negligent. How many times did Counterterroism expert Richard Clarke say that Condi Rice and Stephen Hadley refused to meet with him about OBL, Al Queda during the transition from Clinton to the Bush administration? Refusing to meet with Clarke, repeating false claims about Iraq, rolling over to Bradbury. Seems like negligence is a bit of a habit for “mushroom cloud” Rice

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