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Zelikow, Testifying This Morning, Calls For Independent Torture Probe
As we prepare for a Senate hearing on the Bush torture program, it's worth taking a look at an interview that one of the key witnesses, Philip Zelikow, gave to Foreign Policy's Laura Rozen yesterday, which provided an advanced look at what he's likely to say.
Zelikow, a top State Department lawyer under Condoleezza Rice, recently revealed that the White House tried to destroy all copies of a memo he wrote that offered an alternative view on the legality of torture. He later said he suspected at the time that Dick Cheney had led that effort.
Speaking to Rozen yesterday, Zelikow expanded on what happened:
I tried to raise consciousness that there was a massive potential problem here. 'Maybe we should do something.' And the answer to that was silence. 'We don't want to discuss this. We don't want to reassure you. We prefer to ignore you raised this.' I worked hard on this memo. I wish people had answered to tell me why we [dissenters] were so wrong.' But their preference was, 'Your intervention is so frivolous and out of school that it doesn't deserve a response.' That's too bad.
He also called for an independent commission to probe the torture program:
[O]ne of the reasons I support some kind of inquiry is to comprehend why so many people believed that a program like this was a good idea - since we now believe it was a mistake. So we can learn from the mistake. When there is this kind of collective failure, we need to learn from what happened.
He said it should be along the lines of the 9/11 commission that he himself directed:
That way you don't have a situation where [former ranking Senate Intelligence committee member] Jay Rockefeller and Nancy Pelosi are seen as being hypocrites. Turn over the inquiry to others. That is the way they can neatly address this argument, because they won't be the ones conducting the inquiry.
It's worth noting that Jonathan Turley, a professor at George Washington Law School and prominent advocate for a full investigation, has explicitly criticized the 9/11 commission as a model, saying its members were unwilling to assign blame, and were too concerned to with protecting the political reputations of those who selected them.
The testimony to be given by the other marquee witness, former FBI agent Ali Soufan, is here.

















I favor appointment of an independent counsel, but a 9/11-style Commission is better than nothing. I agree entirely with Phillip Zelikow's reasoning for why any investigation needs to be independent. I would go further and offer a less diplomatic reason that Zelikow didn't mention: there's a real possibility that Democratic leaders were complicit and, therefore, they ought not be in a position to influence the direction of any investigation.
May 13, 2009 10:23 AM | Reply | Permalink
"9-11-style Commission" is a euphemism for whitewash.
May 13, 2009 10:58 AM | Reply | Permalink
It can be, depending on who's doing the speaking. But it doesn't have to be.
May 13, 2009 11:40 AM | Reply | Permalink
I think a prosecutor is essential. I think this notion that we can forgive everyone who committed criminal acts needs to be resoundingly rejected. If Cheney ordered torture, Cheney is in big trouble. Period.
We live in the United States, a nation of laws, not of men. A commission without prosecutorial power is worthless. It guarantees this will happen again. We had a commission for 9/11 because we didn't believe officials committed crimes. Here, we have a pretty good idea that criminal actions were taken. To just establish an immunity process so that we can "determine what really happened," is absurd. We have a general idea of what happened. Some people were waterboarded 100 times. Other people were tortured to death.
Enough with the immunity. We need a prosecutor. Besides, as soon as you give someone immunity, you can expect that someone else will take the inappropriate fall.
May 13, 2009 11:16 AM | Reply | Permalink
There is a middle ground between investigation with immunity and special prosecutor. Unfortunately, it'll likely result in a lot of Fifth Amendment taking.
May 13, 2009 11:50 AM | Reply | Permalink
I mean, what's the middle ground? I don't think we have to compel people to testify against themselves, but I don't think it's reasonable or appropriate or desirable from any perspective to grant widespread immunity in exchange for testimony. Their testimony isn't likely to be that valuable.
So, a grand jury and indictments are much more appropriate. I see this very much the way I saw Scooter. Sure, it's too bad a senior lawyer -- and not his client, Dick -- was convicted for lying to the government's agents. But, perhaps in the future, other lawyers will tell the truth during a criminal investigation.
Without the threat of prosecution, though, the next Cheney will torture.
May 13, 2009 1:28 PM | Reply | Permalink
It is my understanding that we are legally obliged to prosecute. Bruce Fein, please weigh in...
May 13, 2009 11:50 AM | Reply | Permalink
I'm not Bruce Fein, but I think the United Nations Convention Against Torture, particularly Article 12, nails it: "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction."
SHALL means it's mandatory.
May 13, 2009 12:43 PM | Reply | Permalink
The last thing this country needs is another whitewash like the 9/11 Commission.
What we need is an professional, independent, nonpartisan, criminal investigation and to allow the prosecutor leading the investigation to follow every lead wherever it takes him/her and then to bring indictments and prosecute in every case that warrants such action.
It really is that simple.
May 13, 2009 11:58 AM | Reply | Permalink
9/11 style commission would mean that stonewalling for the short duration of the commission would be an effective way top avoid unpleasant truths from emerging.
A "Commission On Enhanced Interrorgation Techiniques" would be mostly a big CYA production with the most criminal episodes never seeing the light of day.
May 13, 2009 12:18 PM | Reply | Permalink
"That way you don't have a situation where [former ranking Senate Intelligence committee member] Jay Rockefeller and Nancy Pelosi are seen as being hypocrites. Turn over the inquiry to others. That is the way they can neatly address this argument, because they won't be the ones conducting the inquiry."
Ok. It makes perfect sense, which is why is probably won't happen. Do you trust your government to do the right thing? I DON'T.
May 13, 2009 12:22 PM | Reply | Permalink
An independent prosecutor is the only way to go. Political hearings or commissions will accomplish nothing.
May 13, 2009 12:34 PM | Reply | Permalink