Zelikow Memo is Further Evidence of Criminal Culpability

April 24, 2009 | Last updated: July 31, 2020

While much of the mainstream media — Charlie Savage at The New York Times and John MacKinnon at The Wall Street Journal, among others — were reporting yesterday on how it would be virtually impossible to prove that the Bush administration’s lawyers’ approval of torture amounted to a crime (relying in large part on the opinions of conservative legal scholars such as Eric Posner at the University of Chicago), I had to wonder if they just haven’t been reading the evidence.

The Senate Armed Services Committee Report, as I wrote yesterday, is chock full of evidence that standard legal doctrine, as well as contradictory legal opinions from military lawyers who are experts on international humanitarian law, was deliberately ignored or dismissed.

And the Office of Legal Counsel memos that sanctioned the brutal interrogation policies so blatantly twisted the relevant law, as even Republican legal scholars such as Jack Goldsmith have acknowledged, that they raise serious questions about whether the memos were written in the “good faith” required.  Sure, “the political officials would say they believed what they were doing was lawful,” as Professor Posner told the Times, but if the evidence shows that they instructed their lawyers to reach specific conclusions and to ignore law that dictated otherwise, then a jury may well not believe them.

And what to make of the recent revelation that the former aide to Condoleeza Rice, Philip Zelikow, submitted a memo to the State Department insisting that the abusive interrogation policies under consideration and approved by the OLC lawyers were clearly illegal?  The issue here isn’t that someone disagreed with their policies; it’s that, according to Zelikow: “The White House attempted to collect and destroy all copies of my memo.”

Can there be any better evidence of “bad faith” than seeking to destroy evidence of contradictory legal opinions?

President Obama may have all sorts of good reasons for not supporting a broad-ranging “truth commission” that inquires into the breadth of Bush administration policies in its war on terror, as he’s claiming now.  But he has said that he’s not opposed to a criminal investigation of the lawyers who approved those clearly illegal policies and how they reached their conclusions.

Given the wealth of evidence that’s come out that those conclusions were not reached objectively or in the “good faith” that’s required, that’s one investigation that’s clearly warranted.