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

by John Glaser, April 04, 2012

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.”

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