A recently declassified memo from 2006 shows that Philip Zelikow, then a state department aide on terrorism issues and previously the executive director of the 9/11 commission, dissented from an extreme opinion by the Office of Legal Counsel that CIA interrogations at secret prisons in foreign countries were free from international treaty constraints against torture. The memo was made available through the Freedom of Information Act.
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.
In his five-page memo, Zelikow wrote that the state department earlier had agreed with the justice department’s view. But “that situation has now changed” in light of McCain’s amendment, Zelikow wrote.
It “appears to us that several of these techniques, singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment’,” Zelikow stated.
Zelikow was challenging the official view of the Justice Department at the time. But he described his memo in a statement as the only way to get the President to hear an alternative viewpoint.
Here’s the entire memo. It’s a thorough reading of the Senate statute that was signed into law by the President, saying that it prevented far more acts that the Office of Legal Counsel interpretation allows. The Senate amendment applied Article 16 of the Convention Against Torture to CIA actions anywhere in the world. This included acts that did not even amount to torture under the relevant international conventions, but constituted “cruel, inhuman or degrading treatment or punishment.” He includes techniques, some of which may constitute torture, like waterboarding, “walling” (affixing a collar to a suspect and shoving him against a wall), dousing with water, cramped confinement and “stress positions” as among those likely to be prohibited.
Zelikow already publicly stated that he dissented from the OLC memos with a memo to President Bush, but this is the first time we’ve gotten to see that memo. So while not totally surprising, it just builds on the available evidence that the Bush Administration conducted an illegal torture program, and no one has ever been held accountable.
FDL’s Kevin Gosztola has a detailed review of the memo and context over at The Dissenter.