Dissenting Memos on Bush Torture Program Released

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Common Dreams

Dissenting Memos on Bush Torture Program Released

Administration tried to 'collect and destroy' all copies of advice White House received objecting to cruel acts

by
Common Dreams staff

Goerge W Bush walks before speaking in defense of his war policy to an audience in December 2005. (Photograph: Pablo Martinez Monsivais/AP)

Internal State Department memos warning against use of torture that the Bush Adminstration tried to "collect and destroy" were released on Tuesday following a Freedom of Information Act request by the National Security Archive, a nonprofit advocacy group for government transparency.  The until-now classified critique of the CIA torture program and the legal defense offered for it was written by a high-level advisor to then-Secretary of State Condoleezza Rice. 

The memo released Tuesday, labeled "draft," concludes that because they violated the Constitutional ban on "cruel and unusual punishment," the CIA techniques of "waterboarding, walling, dousing, stress positions, and cramped confinement" were "the techniques least likely to be sustained" by the courts. Zelikow also wrote that "corrective techniques, such as slaps" were the "most likely to be sustained." The last sentence of the memo reads: "[C]ontrol conditions, such as nudity, sleep deprivation, and liquid diets, may also be sustainable, depending on the circumstances and details of how these techniques are used."

According to Zelikow's accounts, he authored the memo in an attempt to counter the Bush administration's dubious claim that CIA could still practice "enhanced interrogation" on enemy combatants despite the president's December 2005 signing into law of the McCain Amendment, which, in Zelikow's words, "extended the prohibition against cruel, inhuman, or degrading treatment to all conduct worldwide."

The author himself, Philip D. Zelikow, described the context of the memo in congressional testimony on May 13, 2009, and in an article he wrote for Foreign Policy on April 21, 2009.

"At the time, in 2005 [and 2006]," he wrote in Foreign Policy, "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 [Office of Legal Council's] views unsustainable."

"My colleagues were entitled to ignore my views," he continued. "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."

In fact, they were.

*  *  *

The Guardian: Memo shows US official disagreed with Bush administration's view on torture

A memo about harsh interrogation techniques shows that a former US state department official strongly dissented from the Bush administration's secret legal view in 2005 that an international treaty against torture did not apply to CIA interrogations in foreign countries.

Until now, the February 2006 analysis by Philip Zelikow has been a high-level, classified internal critique of the Bush administration's controversial interrogation policies. At the time he wrote his criticism, Zelikow was secretary of state Condoleezza Rice's representative on terrorism issues to the national security council's deputies committee.

The state department released Zelikow's memo Tuesday under the freedom of information act to the National Security Archive, a nonprofit advocacy group for openness in government.

In late 2005, Bush signed an amendment sponsored by John McCain that the Republican senator believed applied international standards of cruel and degrading treatment to US interrogation practices.

However, a May 2005 secret justice department interpretation of the law exempted CIA interrogation practices like waterboarding.

*  *  *

The documents. The following State Department memos were obtained by the National Security Archive following a Feedom of Information Act Request and published on their website on Tuesday:

Document 1: Philip D. Zelikow, State Department Counselor, Draft Memorandum, "The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture," Top Secret, February 15, 2006
Source: Freedom of Information Act request

Written following passage of the so-called McCain Amendment against "cruel, inhuman, or degrading treatment or punishment," this memo offers alternative legal argumentation to the opinions that the Justice Department's Office of Legal Counsel continued to put forward into 2006. According to Zelikow, he was told that some officials in the Bush administration sought to gather all copies of his memo and destroy them, but the State Department located this one and released it under the Freedom of Information Act.

Document 2: Stephen G. Bradbury, Justice Department, Office of Legal Counsel, Memorandum for John A. Rizzo, "Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees," Top Secret, May 30, 2005
Source: The Torture Archive, the National Security Archive

This memo follows up previous OLC opinions on interrogation methods, providing an even more expansive vision of what kinds of "enhanced techniques" would be acceptable against al Qaeda and other detainees. Zelikow specifically refers to this memo in his February 2006 counter-argument.

Document 3: Philip D. Zelikow, Statement before the United States Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Unclassified, May 13, 2009
Source: Federation of American Scientists

After the Obama administration declassified the controversial Office of Legal Counsel opinions on so-called "enhanced interrogation techniques," Congress weighed in on the question. Here, Zelikow lays out his critique of the OLC position in detail.

Document 4: Philip D. Zelikow, State Department Counselor, and Gordon R. England, Deputy Secretary of Defense, "Elements of Possible Initiative," Sensitive but Unclassified, June 12, 2005
Source: Federation of American Scientists

Zelikow and Gordon England, the acting deputy secretary of defense, put together this draft of a possible presidential initiative on detainee treatment and interrogation. The document was appended to Zelikow's May 2009 congressional testimony. According to his prepared statement, this memo describes a "big bang" approach to dealing with the larger issues, but after Defense Secretary Donald Rumsfeld rejected its ideas, the National Security Council staff decided to pursue each issue piecemeal.

Document 5: Philip D. Zelikow, State Department Counselor, and John B. Bellinger III, State Department Legal Advisor, "Detainees – The Need for a Stronger Legal Framework," Unclassified, July 2005
Source: Federation of American Scientists

In his May 2009 congressional testimony, Zelikow describes this document as part of an attempt by the State Department to enlist other U.S. government agencies to define legal standards for detainee treatment that were less "technical" and more "durable – politically, legally, and among our key allies." The memo was appended to his testimony.

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