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Part 1

Rachel Maddow talks to former State Department lawyer under Condoleeza Rice, Philip Zelikow who says that the Bush administration attempted to destroy all copies of an alternative memo on interrogation techniques he wrote in 2005.

From Philip Zelikow's blog at Foreign Policy magazine The OLC "torture memos": thoughts from a dissenter:

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.

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.

Part two below the fold.

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