Not all were silent, ctd.

(meme) Philip Zelikow was in government and objected to the torture memos in 2005: (emphasis mine)

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. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

The absurdity of the legal reasoning is why these torture memos were kept secret even after details of the techniques used were out. Which is again why Rahm Emanuel is correct when he says:

"One of the reasons the president was willing to let this information out [was that] the information was out," he said. "So if they're saying you basically have exposed something, it's been written. Go get the New York Review of Books. It is there. So the notion that somehow we're exposing something -- it's already been out. In fact, President Bush...allowed a lot of this information out. So the notion that somehow this all of a sudden is a game changer doesn't take cognizance of the fact it's in the system and in the public domain. Therefore, it's not new... Number two: it's one of the key tools al Qaeda has used for recruitment. There has been a net cost to America by changing the way America is seen in the world, which means banning this technique and practice, we have actually stopped them and prevented them from using it as a rallying cry."