Thought Destroyed, Bush-Era Torture Memo Released

Bush officials' destruction of dissenting legal opinions will not be investigated, in keeping with Obama policy of protecting war criminals

The State Department has released a February 2006 internal memo from then-Counselor Philip Zelikow opposing Bush-era authorization for torture by the CIA, although it was previously thought to have been destroyed.

Abu Zubaida, waterboarded 83 times, CIA Interrogation Photo via National Security Archive

When the Obama administration declassified the “Torture Memos” in 2009, Zelikow went public about the existence of this memo, which concluded that the CIA could no longer legally conduct their “enhanced interrogations” of terror suspects.

Zelikow argues the “enhanced interrogation” of the Bush administration constitutes war crimes.

Zelikow’s memo was not released with the bulk of them in 2009 because the Bush administration had gathered up all the legal memos which concluded torture was illegal and had them destroyed. But the State Department found a copy of it and declassified it in compliance with an existing Freedom of Information Act Request.

The memo concludes the Bush administration’s use of techniques like “waterboarding, walling, dousing, stress positions, and cramped confinement” were “the techniques least likely to be sustained” by the courts and violate the Constitutional ban on “cruel and unusual punishment.”

Zelikow claims he felt prompted to write the memo in an attempt to counter the Bush administration’s claim that CIA could still practice “enhanced interrogation” on enemy combatants despite the 2005 law of the McCain Amendment, which, in Zelikow’s words, “extended the prohibition against cruel, inhuman, or degrading treatment to all conduct worldwide.”

Nate Jones, of the National Security Archive, claims the Bush administration’s attempt to destroy any trace of internal legal disagreement about its torture techniques is a crime in itself for which officials should be investigated. “But don’t hold your breath,” he writes. “The Department of Justice and National Archives refused to prosecute CIA Director of Clandestine Service, Jose Rodriguez for destroying 92 video tapes of ‘enhanced interrogation.'”

And, “in instances of torture, and the destruction of documents about torture, the DOJ,” as per President Obama’s insistence, no doubt, “chose to look forwards, not backwards.”

Last 5 posts by John Glaser

Author: John Glaser

John Glaser writes for Antiwar.com.

  • mojo

    Let be no any doubt in any ones mind that torture is still part of the US and EU militarism regime, if you don't see it that doesn’t mean that is not there or is a forgotten prospect by US military or for that matter organizations which are part of US or EU militarism regimes, CIA is one of those and M16 is yet another. Having said that, if no one is going to be prosecuted or even questioned then is a proceeding matter conducted with more secrecy then ever before.

  • curmudgeonvt

    In a normal world, there would have been trials and jail sentences this long after events like the ones above. But, in Bizarro World, the elites are allowed to commit the crimes and walk away to comfortable retirement villas, surrounded by government-supplied physical protection.

    • montaigne

      while at the same time chanting the tune of universal human rights, freedom and democracy.

      Well, we all can see those facts, but it seems to take time before the pleasant habit of uttering general social justice and morality leaves a – well – spin treated population, it seems. Also the fact that the alternative of NOT upholding that as a general principle, might scare people (for their own life and habits sake.

      Like a crucifix in a gangster car.

  • smithy1000

    THere is a law that says that the government creates the law by its actions. I am no sure what the name of this law is. Does anyone know what this law is?

    If the government practices torture then torture become lawful unless the citizenry hold's the government responsible.?

    What is the law? Do unto others as you will have others do unto you?

    • John_Muhammad

      I believe you are referring to the Enabling Act of 1933.

  • persnipoles

    Doctor of Public Myths ('presumptions') has now acheived a public myth in himself. His memo out of how many dissenting? I didn't know an amendment was necessary to prevent the feds from torturing; is that supposed necessity another revision?