Marty Lederman at Balkinization has tracked down the speech that Phil Zelikow gave at University of Houston last month. The NYTimes reported a bit on the speech, entitled "Legal Policy From A Twilight War," in an article yesterday that detailed criticisms of the Bush Administration's interrogation policies. Scarecrow talked about the NYTimes article yesterday, and Marty's speech find takes the discussion several steps further:
The "new paradigm" that Zelikow describes has at least nine specified elements. I have a feeling that this is a bit of wishful thinking — that although the "new paradigm" Zelikow describes surely is the preferred plan of action favored by the State Department, it is not necessarily the one the President will adopt, largely because of intense opposition from the Vice President's Office.
Why do I say this? Well, for one thing, one of the elements Zelikow identifies is an alleged decision "that America does intend to close Guantanamo," at least once it decides "how to replace and improve the Guantanamo detention system." This was, to be sure, the proposal favored by Secretaries Gates and Rice. But if press reports are to be believed, the President rejected this view, on the advice of Cheney and Gonzales….
The principal thrust of Zelikow's lecture is that many of the decisions in this armed conflict, especially concenring interrogation methods, have been too dominated by legal determinations. In this respect, Zelikow is critical of both the Administration officials and its critics — he strongly believes that far too much attention has been paid to questions of what is legal, and not remotely enough to questions of what is moral, and what the practical and long-term costs might be of adopting certain policies.
"[M]y argument," writes Zelikow, "is that the substitution of detailed legal formulations for detailed moral ones is a deflection of responsibility."
Surely that is correct. The fact that something is (arguably) legal does and should not come close to resolving the question of whether that course of action should be adopted. And all too often in this Administration, it has appeared as though once the lawyers developed a legal justification, it was all-systems-go, damn the consequences, with little regard for any moral calculus or a serious long-term view of the potential costs.
But it does not follow that the law is unimportant, or that critics of the Administration — who have not been shy about relying on moral, pragmatic, diplomatic and strategic arguments, as well — should abjure the resort to legal arguments. After all, if something is illegal — such as the cruel treatment proscribed in Common Article 3 — that ought to be the end of the discussion of whether to employ such a technique. The question of legality, in other words, does not, as Zelikow suggests, "obscure the core of the issue," any more than it displaces the "core" moral and pragmatic questions. Rather, it precedes those core questions, and might, as in this case, actually preclude the need to fight about such core issues in cases where there might be dissensus within the government.
Yes, when all else fails, blame the lawyers. The fact that the small coterie of lawyers who rationalized our way into serial illegal actions were a group that warped the law to fit around their goals rather than evaluating the goals based on the law as it stood — that had the Administration bothered to consult with pretty much any lawyer with a background in international, constitutional or ethical legal practice experience, or even simply listened to the JAG lawyers who have been telling them all along that what they were doing violated both the spirit and the letter of the UCMJ, for starters? Well, that would have required all of them to want to do the right thing — as opposed to doing the thing they wanted to do by whatever justification they had to gin up in order to do it with cover.
Because, you know Phil, you and every other Republican in the government has had absolutely no responsibility for the "go along and get along" enabling of the Bush Administration to do whatever it damn well pleased, regardless of the immediate and long-term moral and legal consequences, Right? Wrong. Welcome to that newfangled word I like to call "complicity."
Zelikow's analysis on the ethical paucity of the Bush Administration's treatment of prisoners of this shadow war, the critique of the thin and faulty rationalizations that Addington, Libby and Yoo's merit badge program for the Cheney Brigade put together to allow Cheney's shadow national security goons and Pentagon devotees a free hand at whatever episode of 24 they wanted to play act next on the international stage? It's pointed in places and correct — but it is six years too late to have prevented all of the actions taken in our name which demean the very values for which we are supposed to stand.
Don't get me wrong, it is about time folks on all sides of this issue — especially those close to the Administration who can fill in some of the murky details on what discussions may or may not have taken place behind closed doors and locked loyalty oaths. It is well past time that some of these people stood up publicly for our nation's moral and legal obligations. But wouldn't that have been more effective if they'd stood up before we started breaking the law in the first place?
The Republicans in the political operative wing, in the bobblehead brigades and especially in both Houses of Congress and the Bush Administration's minion eschalons have to answer for every rubber stamp they gave over the last six years — and especially for the lack of any real oversight, any request for public accountability, anything at all other than "yes, sir, and when can I expect my next round of campaign donations?" And that is a lot of answering. Let the sun shine in…
(Photo of woman at the church in Coronado via Percy deSaint.)