Philip Zelikow, former counselor of the US State Dept

A State Department internal memo opposing the Justice Department’s arguments for CIA “enhanced interrogation techniques”—torture—has been released. The memo from February 2006 was written by Philip Zelikow, who at the time was a counselor to Secretary of State Condoleezza Rice. It was believed that all copies of the memo had been destroyed, but on April 3, the National Security Archive, a group committed to openness in government, obtained a copy through a Freedom of Information Act (FOIA) request and posted it online.

The memo shows Zelikow argued many of the “techniques” approved for use by the CIA should have been considered “cruel, inhuman or degrading treatment or punishment” under Article 16 of the Convention Against Torture. He thought waterboarding, walling, dousing, stress positions and cramped confinement could have the cumulative effect of being “cruel, inhuman or degrading.”

Zelikow found, “Control conditions, such as nudity, sleep deprivation and liquid diet” might not be “cruel, inhuman or degrading,” but that depended on “the circumstances and details of how these techniques” were used. Basic detention conditions and “corrective techniques, such as slaps,” would be permissible.

What spurred Zelikow’s opposition was the 2005 McCain Amendment on torture, which sought to prohibit the inhumane treatment of prisoners in US custody.

In the memo, he begins by noting the State Department agreed with the Justice Department in May 2005 that Article 16 of the CAT (“to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture”) “did not apply to CIA interrogations in foreign countries.” But, the McCain Amendment had “extended the application of Article 16 of the CAT to conduct by US officials anywhere in the world.”

The prohibitions of Article 16 of the CAT now do apply to the enhanced interrogation techniques authorized for employment by CIA. In this case, given the relationship of domestic law to the question of treaty interpretation, the responsibility of advising on interpretation is shared by both the Department of State and the Department of Justice.

Zelikow’s State Department memo would not have been binding on the CIA, but he felt because of his history as a constitutional lawyer he had to put forward an argument that challenged the idea that these “enhanced interrogation techniques” were legal.

He told the Associated Press on April 3, “I believe that the Department of Justice’s opinion was an extreme reading of the law and because the Justice Department opinion was secret, the only way the president could hear an alternative interpretation was for someone like me to offer it.”

That is actually a particularly fascinating statement. Zelikow basically is saying all of the Office of Legal Counsel memos being written on these “techniques” or torture were being kept from the president. He couldn’t know what he was approving and Zelikow saw the memo as perhaps the only shot to prevent something illegal from happening.

This may be why the White House tried to destroy all copies of the memos that were circulated. In former President George W. Bush’s memoir, Decision Points, there is no mention of Zelikow. What he writes is, “At his direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture.” He doesn’t mention reading any specific legal arguments. And so, presumably, to avoid being charged with committing any war crimes, the lawyers were allowed to operate and craft justifications for torture under total secrecy.

Additionally, Zelikow uses the OLC’s own memos on the “legal definition of torture” to make his argument against approved CIA “techniques.”

…the CAT’s Article 16 states explicitly that the prohibited cruel, inhuman or degrading treatment or punishment are acts “which do not amount to torture.” Moreover, OLC’s own opinion on the legal definition of torture emphasizes the difference. OLC quoted the Senate’s explanation that: “‘Torture’ is thus to be distinguished from lesser forms of cruel, inhuman or degrading treatment or punishment, which are to be deplored and prevented, but are not universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture.” OLC opinion of Dec. 30, 2004, p. 4, see also note 14.

If the techniques, taken together, are intrinsically cruel, inhuman or degrading — i.e., if under American constitutional law they would either be considered cruel and unusual or shock the conscience, then they are prohibited. They can be barred, per se, even if they do not amount to torture. And they can be barred even if there is a compelling state interest asserted to justify them.

To get a better idea of what he means by “shock the conscience” and “state interest,” read the full memo here.

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The memo itself has multiple implications. As mentioned above, it was an effort by Zelikow to expose Bush to the flaws in legal opinions being put together by OLC lawyers, particularly Steven Bradbury. It should move the Obama Justice Department to renew efforts to investigate CIA torture. However, Justice Department has been averse to investigating torture.

On June 30, 2011, it was reported John Durham recommended a “criminal probe into the deaths of two prisoners in CIA custody but cleared US interrogators of wrongdoing in 99 others.” The investigation had begun as an investigation into the “CIA’s destruction of videotapes of the interrogations of top al Qaeda prisoners.” The scope was “widened” by Attorney General Eric Holder in 2009 to include a “look into whether US interrogations violated American laws against torture.” Thus, the release of the memo merely makes the Obama Administration’s failure or refusal to fully investigate CIA torture even more appalling.

Glenn Greenwald said on Democracy Now! on August 26, 2009, just after Holder made the announcement, that this should take away the argument that the  ”torture regime” should be “immunized from the rule of law and the mere fact that it was done in the name of terrorism means that somehow breaking the law is permissible in a republic that is supposed to live in accordance with the rule of law.” But, he clarified:

I think the problem with the announcement, though, and it’s a significant problem, is that he has indicated that anybody who complied with the OLC torture memos, the memos that essentially gave permission to the CIA to engage in what was obviously torture, and who did so in good faith will receive immunity from investigations and prosecutions. And what that, I think, is intended to do, and what it almost certainly will accomplish, is to mean that the high-level political officials who actually implemented the torture regime — the Bush officials in the White House, the high-level CIA officials — will never be held to account. And at most what will happen is some low-level sadist in the CIA who went beyond the torture permission slips given by the Justice Department might be held accountable, in the same way that in Abu Ghraib low-level grunts were held accountable for what was clearly the policy of high-level policymakers. And I think that’s quite problematic.

But, that even that hasn’t happened. Those in America and the world are still waiting for that miniscule amount of justice to occur.

In the meantime, even though the Obama Administration did release CIA memos on torture tactics it had at one point considered keeping secret (the techniques Zelikow found to be illegal), the Administration has supported the CIA’s efforts to keep cables on illegal waterboarding secret. The Administration also has shown no interest in the fact that the CIA destroyed interrogation tapes and, in fact, the Justice Department helped the CIA escape efforts by the American Civil Liberties Union (ACLU) to hold the spy agency in contempt for the tapes’ destruction.

The Zelikow memo importantly reminds people of the fact that crimes were being committed by the Bush Administration. It also reminds people that torture, as well as cruel and inhuman treatment that might be defines as less than torture, has for the most part been decriminalized by the Obama Administration, and, no matter what information is obtained by groups dedicated to civil liberties and open government in the coming years, there isn’t likely to be any accountability for the crimes committed by Bush Administration officials.

*For the National Security Archive’s complete “Torture Archive,” part of an effort to maintain an institutional memory on renditions, detainees, interrogations and torture, go here.