Zelikow memo made a case against enhanced interrogation

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Several of the enhanced interrogation techniques undertaken by the CIA were “cruel, inhumane or degrading treatment or punishment” and unconstitutional, a State Department counselor during the George W. Bush presidency argued in a 2006 memo newly released by a Freedom of Information Act request from the National Security Archive at George Washington University.

The memo (.pdf), written by Philip Zelikow, State Department counselor from 2005 through April 2007 and previously executive director of the 9/11 Commission, has been the subject of some speculation since, according a later Zelikow account, “the White House attempted to collect and destroy all copies.”

 Zelikow says he wrote the memo as an attempted counter to Justice Department Office of Legal Counsel memos offering legal justification for techniques such as, as Zelikow’s memo said, “the waterboard, walling, dousing; stress positions, and cramped confinement.”

Nudity, sleep deprivation, and liquid diet could pass muster, Zelikow wrote, “depending on the circumstances and details of how these techniques are used.”

Zelikow began his legal argument with passage of the Detainee Treatment Act of 2005, an amendment to the Defense Department appropriations bill for fiscal 2006 offered by Sen. John McCain (R-Ariz.).

The act extended Article 16 of the Convention Against Torture, which the United States ratified in 1994, to conduct by U.S. officials anywhere in the world, Zelikow said. The McCain amendment applied the convention’s ban on “cruel, inhuman or degrading treatment of punishment” only insofar as such actions were prohibited by the Fifth, Eighth and/or Fourteenth amendments, Zelikow added.

Those amendment apply a “cruel and unusual” standard, “the least restrictive standard available anywhere in American jurisprudence,” he wrote. The Supreme Court has said that there exists no absolute test for determining cruel and unusual actions. But, a comparison of several of the enhanced interrogation techniques to previous American government practice with combatants--unlawful or not--law enforcement practices and other comparable governments, Zelikow wrote, leads to the conclusion that “several of these techniques, singly or in combination, should be considered 'cruel, inhuman, or degrading treatment or punishment.’”

For more:
- download the Zelikow 2006 memo from National Security Archive (.pdf)
- go to a National Security Archive blog post on the memo

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