Apologies for being somewhat late to come across this part of the picture, but Philip Zelikow seems to have hit the nail exactly on the head in explaining why he opposed the torture programme as NSC deputy to Rice back in 2005:
There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK." Well, not really. They say it might be legal. They don't know about OK. (Source: Foreign Policy, 21 April 2009)If it were needed, Zelikow's example also gives the lie to the argument that the role of a bureaucratic functionary should only be to follow the instructions of superiors, the position that defenders of Bybee et. al. have been taking:
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.Oh, and if any Brits are feeling in any way superior relating to this whole murky affair at this point, don't. Read this instead.
2 comments:
I hope that there is a trial. The ICC sounds like the only place that is going to do it.
I hope that there is a trial. At this point it sounds like the ICC is the only chance of it happening though.
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