Madame Maddow Issues Perennial Demand to Prosecute Bush War Crimes

Bush Derangement Syndrome is back, coinciding -- go figure -- with another national election.

Who better to revive this pathology than Rachel Maddow, once again showing herself willing to elevate a minor story to seismic importance if doing so puts Dear Leader in a more glorious light. (video clip after page break)

On her MSNBC show April 4, Maddow all but shouted "stop the presses!" in response to release of a declassified legal memo written by then-State Department lawyer Philip Zelikow, former deputy to Condoleezza Rice when she served as Secretary of State, and executive director of the 9/11 Commission.

The memo was obtained through a public records request from Spencer Ackerman -- yes, the same JournoList delinquent who once suggested heaving political opponents through plate glass window, if only "rhetorically" -- and the National Security Archive at George Washington University.

What did this memo for the ages divulge? Here's Maddow's take on it  --

At the beginning of the Obama presidency in 2009, the Obama administration released memos in which the Bush administration had told itself that torturing people was legal. That is, they read the law, CIA interrogators couldn't be prosecuted for torturing anyone because torture was legal, as they saw it. Torture is not legal. Torture is illegal. And as a top lawyer at the Bush State Department, Philip Zelikow circulated a memo within the administration that said essentially that the administration was kidding itself in trying to say that they were some way around the law here. They were trying to give a legal green light to CIA interrogators to torture people, but that green light, he said, was a sham.

After the Obama administration released those sham memos from the Bush administration, Philip Zelikow disclosed that he had written this dissent. He said he had written this dissent at the time, but he said I cannot disclose it to you because the Bush administration tried to cover it up and pretend like it never existed.

Maddow then showed a clip of Zelikow testifying before Congress on May 13, 2009, saying "I heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed." Back to Maddow --

MADDOW: Philip Zelikow said that the White House attempted to collect and destroy all the existing copies of this memo in which he called bullpucky on how the Bush administration was trying to say torture was legal. I got a chance to ask him about that on this show.

MADDOW (on her show April 21, 2009): Why do you think they tried to destroy every copy of the memo that they knew existed? And how did you find out that did try to destroy copies of the memo?

ZELIKOW (evasive): Well, I found out 'cause I was told, uh, I mean, we're trying to collect these and destroy them and you have a copy, don't you? But I, uh, the, uh, uh, I know that copies were attained in, uh, in my building. ... I think copies still exist. Why would they destroy them? Um, that's a question they'll have to answer. Obviously if you want, you want to eliminate records 'cause you don't want people to be able to find them.

Perhaps not so "obviously" to Zelikow and Maddow, the people you'd not want to find such documents included avid MSNBC watcher Osama bin Laden. Back to Maddow's chat with Zelikow in April 2009 --

MADDOW: Am I right in thinking that they would want to erase any evidence of the existence of a dissenting view within the administration because it would undercut the legal authority of the advice in those memos, the advice that those techniques would be legal?

ZELIKOW: That's what I thought at the time. I had the same reaction you did. Um, but I don't know why they wanted to do it.

Conveniently not included in Maddow's recounting of her conversation with Zelikow were some other things he told her in 2009 (video here) --

Now look, I'm just one point of view. I looked at their point of view and it didn't strike me as a mainstream or reasonable way of construing the relevant standards of treatment, of the definition of terms like cruel, inhuman or degrading. They were using an interpretation of how to comply with that standard that I didn't think any judges or lawyers outside of the administration would find plausible and I wasn't sure other folks realized just how implausible it was.

So, now of course, I'm just offering my opinion. Now I was there as part of a team representing the State Department, acting as an agent of Secretary Rice who had grave concerns about all of this. But others in the administration are perfectly entitled to say, no, we looked at the law and we have the Justice Department, they know a lot more about this than you do. But look, they were entitled to hear an alternative point of view and figure out whether or not they wanted to re-evaluate their opinion. ... All it shows is that they were presented with an argument that says, your interpretation of the law appears to this one fellow to be unsound. Now, of course, lawyers disagree all the time about how to interpret the law. ...

And usually when lawyers disagree, they don't accuse each other of war crimes. But to Maddow, Bush administration lawyers who didn't share Zelikow's views are nothing less than war criminals, as are, by extension, their bosses in the executive branch --

MADDOW (on her April 4, 2012 show): Within the George W. Bush administration, they wrote a legal justification for torture. There was dissent within the administration on that. The Bush administration disagreed with the dissent. They tried to eliminate evidence that that dissent ever existed. And today that dissent came to light, Philip Zelikow's memo tearing apart the legal justifications for torture that the Bush administration was counting on to say that torture was legal, this memo that was circulated and read and which they attempted to make disappear during the Bush administration, now it is out in the light of day. And, if the Republican Party were still the Republican Party of John McCain, this would open up a whole new can of political worms. Because the Obama administration, remember, looked into Bush administration-ordered torture and they decided not to prosecute any of it. They decided effectively that the Bush administration was operating on good faith when they ordered torture, they thought it was legal? Probably not, actually. It turns out they had good reason to know it was not legal. So that means it was a crime. It was probably a war crime, not to put too fine a point on it. And that is something that we are legally obligated to prosecute in this country.

Can there be any doubt Maddow would love nothing more than to lead the prosecution?

Curiously enough, Maddow did not see fit to cite any of Zelikow's memo from Feb. 15, 2006 -- not a single word, sentence or paragraph. Her rationale becomes obvious once you read the six-page document itself and discover it is nothing more than how Zelikow described it -- "one fellow" taking exception to the legal opinions of others as "unsound." For Maddow to extrapolate "war crime" from that embodies the spirit of Stalinist purges.

In his memo Zelikow wrote that, "There are a great deal many cases on the meaning of 'cruel and unusual.' As the Supreme Court has repeatedly said, writing about conditions of confinement, the words should be interpreted in a 'flexible and dynamic manner.' 'No static test can exist by which courts may determine whether conditions of confinement are cruel and unusual (emphasis added) for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,' " Rhodes v. Chapman, 1981.

As a legal standard, Zelikow wrote, "cruel and unusual" must be distinguished from another standard, that of interrogation techniques which "shock the conscience."

"Some techniques that are merely intrusive or harsh ..." -- yes, "merely" harsh -- "... may pass either test if there is a worthy state interest in using them. Almost all the techniques in question here would be deemed wanton and unnecessary and would immediately  fail to pass muster unless there was a strong state interest in using them. (emphasis added) So we presume for this opinion that they are (emphasis in original) all justified by a valid state interest -- the need to obtain information to protect the county," Zelikow wrote in the memo.

Further, Zelikow state, "torture" must be "distinguished from lesser forms of cruel, inhuman, or degrading treatment of punishment, which are to be deployed and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the (United Nations) Convention provides in the case of torture."

Having just established that "cruel, inhuman or degrading" punishment is legally separate from "torture," Zelikow concludes, "It therefore appears to us that several of these techniques, singly or in combination, should be considered 'cruel, inhuman or degrading treatment or punishment' with the meaning of (UN) Article 16."

To which Maddow responds, whatever.

Perhaps most interesting of all in the Zelikow memo is what its author deemed acceptable for enhanced interrogation --

The techniques least likely to be sustained are the techniques described as "coercive," especially viewed cumulatively, such as the waterboard, walling, dousing, stress positions, and cramped confinement.

Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.

The control conditions, such as nudity, sleep deprivation, and liquid diet, may also be sustained, depending on the circumstances and details of how these techniques are used.

Got that? "Cramped confinement" is to be avoided, along with waterboarding -- but slapping captives around, depriving them of sleep and clothing, by all means, have at it, "depending on the circumstances," a lawyer's CYA out if ever there was one. How about calling the jihadists prostitutes -- that on the list?

All of which explains Zelikow's answer to another question Maddow asked him back in April 2009 -- 

MADDOW: I have to ask if you ever contemplated resigning over this issue if you felt quite strongly about it.

ZELIKOW (defensively, after awkward pause): No. Uh, you have to understand, this was a battle that had been going for months beforehand and went on for months afterwards. This is chapter nine of 32 chapters.

Lawyers resigning because they disagree with one another -- there's a prescription for ending the logjam in our courts.

What is most pathetic about Maddow flogging this long-dead nag is how she posits herself as a moral purist condemning "torture" -- while at the same time yearning for actual versions of it through show trials, wrecked careers and financial ruination.

Jack Coleman
Jack Coleman
Ex-liberal from People's Republic of Massachusetts