Tortured Position

Yglesias points me to Philip Zelikow's (ex-Condi staffer) post on how the Obama administration is conflicted in its dealing w/ the OLC torture memos. There seem to be 4 options:

1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.

2. Unlawful conduct occurred, but the suspects have a credible defense — that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.

4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.

But, Instead, we’ve chosen wacky option number five: “in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.”