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.