- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
In a remarkable post on FP‘s Shadow Government blog in 2009, Philip Zelikow, former counselor of Secretary of State Condoleezza Rice described a memo he had written in 2006, differing with the Bush administration Office of Legal Counsel’s argument that interrogation techniques such as waterboarding did not constitute torture under the recently passed McCain Amendment. That amendment prohibited inhumane treatment of detainees at Guantanamo Bay and required military interrogations to be conducted according to the army field manual.
Zelikow wrote in his post:
The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.
At the time, in 2005, 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 OLC views unsustainable. My colleagues were entitled to ignore my views. 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.
He was right. Zelikow’s memo has been released by the State Department in response to a Freedom of Information Act request by the National Security Archive.
In the Feb. 16, 2006 memo titled, "The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture," Zelikow wrote:
In looking to objective standards to inform a judgment about evolving standards of decency or interrogation techniques that shock the conscience, three sources stand out:
- American government practice, by any agency, in holding or questioning enemy combatants — including enemy combatants who do not have Geneva protection or who were regarded at the time as suspected terrorists, guerrillas, or saboteurs. We are unaware of any precedent in Wold War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here, even where the prisoners were presumed to be unlawful combatants
- Recent practice by police and prison authorities in confining or questioning their most dangerous suspects. This practice is especially helpful since these authorities are governed by substantively similar standards to those that would apply under the [Convention Against Torture], given the Senate’s reservation. We have not conducted a review of American domestic practice. From the available cases, it appears likely that some of the techniques being used would likely pass muster; several almost certainly would not.
- Recent practice by other advanced governments that face potentially catastrophic terrorist dangers. [REDACTED]…governments have abandoned several of the techniques in question here.
It therefore appears to us that several of these techniques, singly or in combination, should be considered “cruel inhuman, or degrading treatment or punishment” within the meaning of Article 16.
The techniques least likely to be sustained are the techniques described as “coercive,’” especially viewed cumulatively, such as the waterboard, walling, dousing, stress positions, and cramped confinement.
It’s definitely worth reading in full.