Bush-Era Memo Raises New Questions About Torture and Accountability

April 13, 2012


Last weekend the State Department released a draft copy of a highly critical internal memo about the CIA’s use of ‘enhanced interrogation techniques’ that had long since been believed lost to posterity.

The draft, written by State Department Counselor Philip Zelikow in 2006, was uncovered by a Freedom of Information Act request submitted by the former Washington Independent reporter Spencer Ackerman. The final memo had been considered so explosive that the Bush administration instructed every single copy be collected and destroyed.

The memo was prepared in response to the passage of new legislation through Congress – the McCain amendment to the Detainee Treatment Act – that prohibited cruel, inhuman and degrading (CID) treatment or punishment. There was no way for the Bush administration to avoid the need to reevaluate the CIA black site program against a CID standard.

At the time Philip Zelikow was a senior adviser to Secretary of State Condoleezza Rice on intelligence policy and counterterrorism and, as such, he was asked to give his opinion on the implications for US policy of McCain’s amendment.

Zelikow’s legal assessment was unequivocal:

“The prohibitions of Article 16 of the [Convention Against Torture] now do apply to the enhanced interrogation techniques authorized for employment by the CIA.”

He continued:

“It therefore appears to us that several of these techniques, singly or in combination, should be considered “cruel, inhuman, or degrading treatment or punishment.”

Zelikow specifically singled out waterboarding, walling, dousing, stress positions and cramped confinement as likely prohibited techniques.

The Convention Against Torture criminalizes the use of prohibited techniques. Zelikow was therefore in essence putting his superiors on notice that these techniques must now be considered, in the context of an armed conflict, to amount to war crimes.

Again it is worth stressing that this was not an opinion authored by Amnesty International, Human Rights Watch or the American Civil Liberties Union but by one of the most senior legal experts appointed by the Bush administration.

As the legal commentator Scott Horton observed, the Zelikow memo would likely now be “Exhibit A” in any future prosecution of Bush administration officials. Zelikow’s observation that “under American law, there is no precedent for excusing treatment that is intrinsically ‘cruel’ even if the state asserts a compelling need to use it” is especially damning.

Testifying before the Senate Committee on the Judiciary’s Subcommittee on Administrative Oversight and the Courts in 2009 Zelikow elaborated on this point, noting that even during World War II when “thousands of lives were potentially at stake in the midst of a brutal, total war” national policy had been to treat detainees humanely.

Before taking up his position at the State Department Zelikow had served as the Executive Director of the 9/11 Commission, there were probably few individuals in the United States who more fully comprehended the nature of the threat posed by Al Qaeda, but this did not alter his principled judgment one iota. As he told the Senate in 2009:

“The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one… Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.”

As the Senate Select Intelligence Committee edges slowly towards releasing its long awaited report on the CIA treatment of detainees in US custody over the summer, the publication of the Zelikow memo is a timely reminder of how much there is still to learn about the CIA’s use of enhanced interrogation techniques.

There has been a vigorous debate amongst the principals of the Intelligence Committee concerning the degree to which the Committee should make its findings public. The Committee is apparently leaning towards only a very limited disclosure of key recommendations.

This would be a terrible mistake. It is vital that this report be published in as detailed a form as possible.

Only a few months ago we had to mobilize to prevent an amendment to reintroduce enhanced interrogation techniques, sponsored by Senator Kelly Ayotte (R-NH), from being attached to the National Defense Authorization Act 2012.

The debate surrounding Senator Ayotte’s proposed amendment was notable for the uninformed opinions, exaggerated claims and outright distortions it engendered. We need the facts. Indeed, we have an obligation to know what was done in our names. Only then can we start putting it right.

Supreme Court Justice Louis Brandeis famously remarked: “sunlight is the best disinfectant.” If there was ever a wound that needed disinfecting, it is the one left on the US body politic by the shameful practices employed in the CIA’s black sites.

The Senate Select intelligence Committee needs to let the sunlight in.