May 14, 2009
Senate Judiciary Committee Hearing on Torture and OLC
Former State Department Counselor Philip Zelikow testified yesterday before the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee in its hearing, What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration?
Zelikow is the author of an unreleased memorandum dissenting from the Office of Legal Counsel's views on torture, as reflected in the most recently released set of OLC memos. Zelikow alleges that the Bush White House ordered all copies of his memorandum destroyed, but he retained at least one copy (which is currently under review for possible declassification).
Zelikow testified that the State Department in 2005 "worked to persuade the rest of the government to join in developing an option that would abandon . . . technical defenses and accept the 'CID' standard"--the "cruel, inhuman, and degrading" standard of Common Article III of the Geneva Conventions (prohibiting cruel, inhuman, and degrading treatment) and which the Bush administration had disavowed.
State succeeded by the end of 2005, and President Bush signed the "McCain Amendment," which codified the CID standard and defined "cruel, inhuman, or degrading treatment or punishment" as "treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment . . . ."
The issues in the public debates about the McCain Amendment at or around the time of its passage included administration-requested immunity for U.S. officers and agents (codified here), an administration-requested exemption for the CIA (which it did not receive), and Bush's signing statement (here, widely understood to mean that the administration might ignore the Amendment).
But everyone seemed to assume that the McCain Amendment would have some effect.
Wrong. The OLC, through its May 30, 2005, memo concluding that the "full CIA standard--including waterboarding--complied with [the CID standard], already rendered the McCain Amendment a "nullity," according to Zelikow. "[I]t would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted."
In other words, the White House put up a great fuss about the McCain Amendment, misleading Congress into believing that the administration thought it meant something--even pressing for a CIA exemption!--all the while knowing that its own lawyers already secretly ruled it a nullity.
(Zelikow goes on to argue that the OLC's interpretation of the Fifth, Eighth, and Fourteenth Amendments "did not seem to present a fair reading of the caselaw under the standard," and that "[t]he OLC analysis also neglected another important line of caselaw, on conditions of confinement." Zelikow's testimony gives us a preview of the legal analysis in his as-yet unreleased memo. We'll cover this when (and if) it comes out.)
Also at issue in the hearing yesterday--and all over the press recently--was Congress's own complicity in the administration's enhanced interrogation and torture program. Vicki Divoll argued in yesterday's NYT that the "gang of four," including Nancy Pelosi, who were secretly briefed on the CIA's program, could have taken some action, including insisting that full committees receive briefings and even denoucing the Bush administration on the floor (although this would have been political suicide).
This may be so, but Zelikow's testimony is yet another reminder that the administration went to extraordinary lengths to cut Congress out of the CIA program--rendering the McCain Amendment a "nullity" in a secret OLC memo a full seven months before it passed, and then undercutting it with a signing statement.
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