It’s Often the Cover-Up that Gets You

An important part of the war crimes defense strategy employed by US torturers has been to plead advice of counsel. This modern version of the 'just following orders' defense has had two strands. Both are unraveling.

As regards the front-line officials who actually laid hands (or insects, as the case may be) on detainees and tortured them, the somewhat plausible claim has been that they were not lawyers, that they were entitled to rely on opinions of the OLC, and that it would be wrong to punish them for trusting the Justice Department.

There are two problems with this argument:

  • Some of the CIA torture, and it appears at least one likely murder, preceded the torture memos.
  • The argument proves too much: there surely must be some level or torture which no amount of fancy paper, much less mendacious paper, from the OLC could justify. The 'OLC blessed it' argument has some real power in gray areas — but not everything can be turned into a gray area. At some point, quite likely including some of the activities we've been hearing about — waterboarding, slamming people into walls — the acts rise to a level that we can reasonably expect any moral individual to recognize as torture, and for which we justly can and should punish the perpetrators regardless of the soothing orders and opinions on which they relied.

There is less controversy about the higher-ups, the folks who wrote the (shoddy) opinions and gave the (criminal) orders. They don't get to plead advice of counsel. We see the outlines of a different plea in today's news — an ignorance defense. Ignorance of history, that is. That isn't going to work. It isn't going to work because the legal opinions are an internal failure: they are shoddy work, unconvincing, lacking all craft. This was obvious to anyone with any legal training. (See, for example, my instant analysis of one of these reports at Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo), back in June 2004.)

It also isn't going to work because, it now emerges, the recipient of those CYA memos evinced guilty knowledge. Until now we'd been led to believe that the people in the highest reaches of the White House, the Defense Department, the Justice Department were either stupid enough (Gonzales) or venal enough (Rumsfeld) or crazy enough (Cheney) to believe (or make themselves believe) that the sheaf of torture memos represented a genuine, or at least plausible, legal analysis, a conclusion buttressed by Bush administration groupthink enforced by the systematic exclusion of anyone who might raise a dissenting voice.

Well, turns out it wasn't quite that simple. In Foreign Policy Philip Zelikow, counselor at the Department of State from 2005-07, writes that he offered a cautionary account — and it was suppressed:

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues.

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.

If the White House had truly believed its legal position was secure, it would not have sought to suppress a dissenting voice. It would be interesting to know who saw the Zelikow memo, and who exactly sought to suppress it. This attempt to flush the truth down a memory hole will not look good should the perpetrator ever find himself or herself in front of a Spanish war crimes tribunal.

Incidentally, for those who harbored the irrational hope that US torture policies at the CIA, Abu Grahib, and Guantanamo were not in fact centrally directed and highly connected, have a look at the Senate Armed Services Committee's latest report on torture which connects all the dots back to the White House and to Rumsfeld.

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17 Responses to It’s Often the Cover-Up that Gets You

  1. Michael, you hit this one out of the park. Simple, clear, convincing.

  2. quimba says:

    Said from the strictly legal perspective, I believe that:

    (1) Obama’s legal team has been, for some time now, perfectly aware that a criminal probe is more than justified here,

    (2) they know, with the enormous amount of evidence and the incredibly weak arguments of those who set up the entire torture framework, that convictions are pretty much warranted.

    But the legal perspective isn’t the only that is relevant when you’re talking about what is probably the most politically sensitive offense that a state can be accused of: war crimes, committed pursuant to a fully detailed plan and orders drafted and executed from the very top of the executive pyramid.

    Thanks to political pressure from within, Obama has been forced to shift 90º from his original position of looking the other way. The hot potato is in the AG’s hands now. The only way of making it turn 180º is keeping up the pressure.

    Professor Froomkin, your posts on this issue have contributed not only to clarify the legal issues at stake, but also to create awareness. You took it up early, when few others did. Thank you and keep up the great work!

  3. more_to_story says:

    You overlook the real possibility that “torture” deterred a threat on U.S. soil. Indeed, there are CIA rumblings exactly to that affect, specifically that an attack on Los Angeles was averted. There may be others.

    The political problem is that Obama’s anti-torture policies will fail if Americans become aware that “torture” has indeed saved many American lives. I know where you stand on that issue (“end does not justify the means”), but many Americans do not share your view. Somewhat tangential, they do not share your view that insects and isolation are torture, and are only somewhat receptive to the notion that water boarding is torture.

    So if a prosecution implies that defendants would have a right to present evidence that torture saved lives (and they do, as necessity or emergency is a defense), it could end up looking very bad for Obama when he is also against milder forms of (what you call) “torture” that have been proven to save American lives.

    Further, it would undermine his position that the right overstates the threat from radical Islam. Right now many Americans belabor under the false sense of security that 9/11 was a fluke, and Bush/Cheney had nothing to do with why we haven’t been attacked since. But if Cheney were allowed to disclose all the classified threats from radical Islam, all of the sudden Obama’s love-fest in the middle east a few weeks ago is going to be seen in a much different light. Some of us choose to be informed:
    http://www.jihadwatch.org/

    So go ahead, go after Bush/Cheney. Then watch it blow up as people realize how many threats were deterred by Bush/Cheney policies, and Americans decide that torture was worth it.

  4. michael says:

    On what do you base the theory that “necessity or emergency is a defense” to either the US anti-torture statute or an international war crimes charge?

    I don’t see it.

    PS. Check out Bush Team Still Peddling 9/11-Iraq Link Torture Failed to Produce

  5. more_to_story says:

    The international war crimes charge is a non-issue. We are a sovereign nation, always will be, despite Obama’s designs.

    The anti-torture statute is untested, granted. However, 1) its definition of torture may not even apply to lawful aggressive interrogations and 2) includes license for unspecified “sanctioned” acts. As a criminal statute it may be unconstitutionally vague, as on its face it conflicts with some practices employed in US prisons that have repeatedly survived constitutionality tests.

    Further, it is a highly dubious presumption that the legislature intended no affirmative defense, particularly the “ticking time bomb” defense. While the contours of the necessity defense remain to be defined, I think you a fool if a) you don’t believe any defenses exist, and b) specifically that necessity is not one of them.

    And even if you were right, necessity would nonetheless play a role in sentencing as a mitigating factor.

    So Bush/Cheney would be allowed to air the successes of their aggressive interrogation techniques; you won’t get to try them in the ivory-tower vacuum that you imagine. I think it speaks for itself that Obama is soft-shoeing the issue. When he started receiving national security briefings he finally realized what time it is: we really are at war with some very nasty people. Aside from which, his position would be wholly inconsistent with his new “forgive and forget” policy towards Chavez, Castro, the Saudis, et. al. Those “leaders” have tortured far beyond your wildest dreams; putting insects in a cell is one thing–chopping off people’s testicles and instituting governmental sanctioned rape is another. Oh sorry, is it politically correct to point out the truth about Obama’s dictatorial new buddies?

    The real message he appears to want to send to the CIA and other dark corners of our protective forces is this: be very selective when you torture, and whatever you do, don’t get caught. I think he knows that if he abandons torture completely and a preventable strike on US soil occurs, he’s done for.

  6. michael says:

    The international war crimes charge is a non-issue. We are a sovereign nation, always will be, despite Obama’s designs.

    Sorry, but that’s a nonsensical non-sequitor. International law is clear that if the home nation (sovereign nation, if you will) won’t prosecute, there is universal jurisdiction in all other sovereign states to prosecute torture. If they can get personal jurisdiction over the defendant, that is/

    Your analysis of the torture statute does not even reach the Bybee level, and that’s really saying something. I’m going to bet that when it comes to the legal issues, both domestic and foreign, you are not only not a lawyer, but you have no idea what you are talking about. Ditto to the so-called necessity defense. Hasn’t a prayer, were anything to ever get that far.

    Now, that doesn’t mean your political analysis is necessarily wrong too. But I hope it is. And it does mean that so long as the legal process has a certain independence, some issues may be hard to take off the table.

    And again, just because our enemies are scum doesn’t mean we have to be scum too. (And how come the people taking the let’s-be-scum position almost never have the guts to sign their names? Could they be cowardly scum?)

  7. LACJ says:

    You overlook the real possibility that “torture” deterred a threat on U.S. soil.

    Not deterrence, but prevention by breaking up the plot. Very big difference. It gets to the mindset of this enemy of which you speak, and when you get to issues of proof, deterrence is obviously extremely difficult to prove as an effective strategy.

    Indeed, there are CIA rumblings exactly to that affect, specifically that an attack on Los Angeles was averted. There may be others.

    Effect not affect. The supposed foiled LA attack is a canard, as are all others. As we all should understand by now, any proof of effectiveness would have already been de-classified by Mr. Cheney prior to leaving office. He simply does not perceive the declassification process as anything other than a means of preventing disclosure of what he does not want out there and effecting (heh) disclosure of what he does.

    The political problem is that Obama’s anti-torture policies will fail if Americans become aware that “torture” has indeed saved many American lives…

    This will never happen. You are living in a theoretical world of perfect information.

    So if a prosecution implies that defendants would have a right to present evidence that torture saved lives (and they do, as necessity or emergency is a defense), it could end up looking very bad for Obama when he is also against milder forms of (what you call) “torture” that have been proven to save American lives.

    Again, the proof simply does not exist. I am very ready to open that door to see what can be come up with.

    Further, it would undermine his position that the right overstates the threat from radical Islam. Right now many Americans belabor under the false sense of security that 9/11 was a fluke, and Bush/Cheney had nothing to do with why we haven’t been attacked since. But if Cheney were allowed to disclose all the classified threats from radical Islam, all of the sudden Obama’s love-fest in the middle east a few weeks ago is going to be seen in a much different light. Some of us choose to be informed:
    http://www.jihadwatch.org/

    Wait this is a bot? Not bad…

    So go ahead, go after Bush/Cheney. Then watch it blow up as people realize how many threats were deterred by Bush/Cheney policies, and Americans decide that torture was worth it.

    Sorry, wrong.

  8. I almost enjoyed Michael’s 11:58 rejoinder as much as the original article!

  9. LACJ says:

    Heh SFL is ‘Bybee Level’ going to be the new buzzword?

  10. LACJ, that would set the bar way too low.

  11. Scott says:

    While the Speaker of the House considers impeachment hearings to investigate whether Judge Bybee misled the Senate, a Michigan representative says that Congress knew about about the waterboarding from the beginning.

     

    According to an article yesterday in the Washington Times by S.A. Miller, “Pelosi won’t rule out impeaching judge” (April 22, 2009):

    House Speaker Nancy Pelosi on Wednesday would not rule out impeachment hearings against federal Judge Jay Bybee over accusations he misled Congress about his role in shaping Bush administration policy that condoned harsh interrogation techniques that critics say amounted to torture.

    Mrs. Pelosi, California Democrat, said lawmakers must determine whether Mr. Bybee lied during his 2003 confirmation hearings, which won him a lifetime appointment to the 9th U.S. Circuit Court of Appeals.

    Peter Hoekstra, a congressman from Michigan, the ranking Republican on the House Permanent Select Committee on Intelligence wrote in the Wall Street Journal yesterday, stating, “Congress Knew About the Interrogations” (April 22, 2009):

    It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses.

     

    Did the Senate know about Jay Bybee’s judgment on waterboarding, before they voted to confirm him? Ms. Pelosi and Mr. Hoekstra are spinning different stories now.

    Even way back in 2003, if Senate staff knew, I think it probably would’ve been leaked. Hard to say for sure on that.

    Damn these people.

  12. Rhodo Zeb says:

    Scott, why are you reading the Moonie Times? Do you like disinformation? Here you are quoting facts which I presume to be true, but why take the risk in the first place?

    Secondly, the Republicans always claim the Dems knew all about it when its convenient to do so. And the reality is going to be somewhat far of the mark.

    Remember Rockefeller’s hand-written letter expressing his concerns regarding the NSA surveillance program? That is how the Dems were ‘informed’ about anything during the Bush years. (Just to re-cap, he was told the program was so super secret that he himself might be arrested were he to leak the info. Hence, the hand-written letter. Apparently they knew what they were doing was illegal.)

    I.e. yes they were informed about something, but to say they were fully-informed is likely incorrect.

    In any case we need to know a lot more than we do now. The rats are starting to abandon ship.

  13. Scott says:

    Scott, why are you reading the Moonie Times? Do you like disinformation? Here you are quoting facts which I presume to be true, but why take the risk in the first place?

    Rhodo Zeb,

    Do you have a particular bone to pick with S.A. Miller’s article? After you cross-check the Washington Times with the Los Angeles Times, do you find any specific inaccuracy that deserves your label “disinformation”?

    Or does it just bother you that some people pick up information from a wide range of sources?

    Do you feel, comrade, that people should be limited to reading your approved pravda?

  14. Rhodo Zeb says:

    Look, if you are a fan of Rev. Moon, then that is fine. It was a couple facts, could have been culled from anywhere.

    I wouldn’t link to them, personally, but its your choice.

    But no, I will not be taking any information emanating from that ‘institution’ without verification. That source does not make the cut.

  15. Janice says:

    “If the White House had truly believed its legal position was secure, it would not have sought to suppress a dissenting voice. It would be interesting to know who saw the Zelikow memo, and who exactly sought to suppress it. This attempt to flush the truth down a memory hole will not look good should the perpetrator ever find himself or herself in front of a Spanish war crimes tribunal.”

    Indeed, hit the nail on the head there.

  16. LACJ, that would set the bar way too low.

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