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Suppressed 2006 Zelikow Memo Against Torture Released

by Professor Will Huhn on April 5, 2012

in Constitutional Law,Wilson Huhn

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Two days ago Tom Blanton at The National Security Archive posted The Zelikow Memo: Internal Critique of Bush Torture Memos Declassified: Document Sheds Light on Disputes over Treatment of Detainees.

During the previous administration Philip Zelikow served as the attorney for Secretary of State Condaleeza Rice. On February 15, 2006, he issued a memo concluding that the United States had violated several federal statutes and international treaties by torturing prisoners. Not only was his memo ignored, but the administration sought to destroy all copies of it. Blanton quotes Zelikow from a statement he made in 2009:

"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."

That memo, entitled The McCain Amendment and U.S. Obligations Under Article 16 of the Convention Against Torture, disagreed with the position taken by the administration that the "enhanced interrogation techniques" were perfectly legal.

Zelikow rightly noted that the Convention Against Torture not only prohibited member states from engaging in "torture" but that it also prohibited "cruel, inhuman, and degrading treatment" of prisoners. The United States Senate added an addendum to the treaty stating that "cruel, inhuman, or degrading treatment" was the same as "cruel and unusual punishment" under the Constitution. In other words, the same rules applied to prisoners of war as applied to prisoners in U.S. jails. This was also the plain meaning of Article 3 of the Geneva Convention. In his 2009 article in Foreign Policy entitled The OLC "torture memos": thoughts from a dissenter, Zelikow stated:

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Zelikow is correct. I came to the same conclusion in my 2008 article Waterboarding Is Illegal.

Some questions of constitutional law and statutory interpretation are difficult. This one is not. If a country sheriff or prison warden in the United States hung a naked prisoner from the ceiling for six days, repeatedly sprayed him with near-freezing water, and prevented him from sleeping for days on end, it would be an open and shut case. Those police or prison guards would be convicted of several crimes and sentenced to jail themselves. Add "waterboarding" to the list – which we called "water torture" and considered to be a war crime when it was practiced by the Nazis, the Japanese, the North Koreans, and the North Vietnamese – and there never was any reasonable doubt about whether this conduct was legal.

And what does it say about an administration that finds it necessary to destroy all copies of a memo stating that it is breaking the law? That is not the act of a government that is confident it is in the right. Open and honest debate on this issue was deliberately suppressed. From the point of view of those who carried out this brutal policy it was necessary to shroud it in secrecy.

These events were a stain upon our nation. We must never allow this to happen again.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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