Bush State Department Opposed Torture

My former colleague Spencer Ackerman got his hands on a document that a lot of people have wanted for a long time, a legal memo from the State Department’s legal counsel, Philip Zelikow, saying that the “enhanced interrogation techniques” — torture — approved by Bush and the DOJ were illegal and a violation of the Geneva Conventions.

What’s more, newly obtained documents reveal that State Department counselor Philip Zelikow told the Bush team in 2006 that using the controversial interrogation techniques were “prohibited” under U.S. law — “even if there is a compelling state interest asserted to justify them.”

Zelikow argued that the Geneva conventions applied to al-Qaida — a position neither the Justice Department nor the White House shared at the time. That made waterboarding and the like a violation of the War Crimes statute and a “felony,” Zelikow tells Danger Room. Asked explicitly if he believed the use of those interrogation techniques were a war crime, Zelikow replied, “Yes.”

Zelikow’s memo was an internal bureaucratic push against an attempt by the Justice Department to flout long-standing legal restrictions against torture. In 2005, he wrote, both the Justice and State Departments had decided that international prohibitions against “acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture” do not “apply to CIA interrogations in foreign countries.” Those techniques included contorting a detainee’s body in painful positions, slamming a detainee’s head against a wall, restricting a detainee’s caloric intake, and waterboarding.

Zelikow wrote that a law passed that year by Congress, restricting interrogation techniques, meant the “situation has now changed.” Both legally and as a matter of policy, he advised, administration officials were endangering both CIA interrogators and the reputation of the United States by engaging in extreme interrogations — even those that stop short of torture.

“We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here,” Zelikow wrote, “even where the prisoners were presumed to be unlawful combatants.”

Other “advanced governments that face potentially catastrophic terrorist dangers” have “abandoned several of the techniques in question here,” Zelikow’s memo writes. The State Department blacked out a section of text that apparently listed those governments.

“Coercive” interrogation methods “least likely to be sustained” by judges were “the waterboard, walling, dousing, stress positions, and cramped confinement,” Zelikow advised, “especially [when] viewed cumulatively.” (Most CIA torture regimens made use of multiple torture techniques.) “Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.”

Zelikow’s warnings about the legal dangers of torture went unheeded — not just by the Bush administration, which ignored them, but, ironically, by the Obama administration, which effectively refuted them. In June, the Justice Department concluded an extensive inquiry into CIA torture by dropping potential charges against agency interrogators in 99 out of 101 cases of detainee abuse. That inquiry did not examine criminal complicity for senior Bush administration officials who designed the torture regimen and ordered agency interrogators to implement it.

None of this is in any way surprising.

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  • Reginald Selkirk

    This is shocking! How did such a person manage to get hired by the Bush regime?

  • “We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here

    Nonsense, of course.

    “Enhanced Interrogation” was the term the Gestapo used for it. And deprivation of sleep, discomfort, exhaustive exercise, and “blows with a stick (in case of more than 20 blows, a doctor must be present)” are all part of the Gestapo’s doctrine.



  • I think that in your last paragraph you meant to write “effectively repudiated,” not “refuted.

  • Michael Heath

    Reginald Selkirk:

    This is shocking! How did such a person manage to get hired by the Bush regime?

    The history of the Bush Administration’s relationship to the State Dept. is largely a history of VP Cheney and Sec. of Defense Donald Rumsfeld’s very energetic antipathy towards the State Dept. Their ire goes back decades and has long been shared by many conservative politicians who’ve also long hated the CIA, primarily because both organizations have deep ties to Ivy League alumni and therefore these institutions operated in a more liberal manner than conservative politicians preferred, even when a conservative was president. President Bush, who didn’t seem to hold such contempt for the State Dept. enabled Cheney and Rumseld to make that dept. more impotent due to his weakness as a manager coupled to his lack of concern about actually governing beyond issues that could be distilled into sound bites so he wouldn’t have to work too hard, think too hard, or read too much.

    A primary reason we failed in Iraq was not necessarily that the strategy was unwinnable at an acceptable level of blood and treasure, but instead because of a failure to execute. A main theme of the Bush Administration is incompetency, which CENTCOM Commander Tommy Franks exemplified similar to President Bush. (Franks spent hardly anytime on “Phase IV” of the Iraq War, which was post-invasion administration). One of the primary defects of this failure to execute, where only a few existed, was Cheney and Rumsfeld transferring formal power State has to administrate occupied countries to the Defense Dept. Not because Rumseld was eager to take on the responsibility, but merely to keep the State Dept. out of the circle of power developing and leading policy.


    There was nothing inherently defective with the State Dept. appointments President Bush made at the start of his presidency and even when he installed Condi Rice; instead their influence was minimized due to two bureaucratic in-fighters with very sharp elbows who sought maximum personal power coupled to one of the weakest presidents our country has ever suffered through.

  • Stevarious

    compelling state interest

    Every time I see that phrase, my mind instantly translates it to ‘We really really want to’.

    “Why did you illegally torture the prisoner?”

    “We had a compelling state interest really really wanted to.”

    “Were you aware that it violated the Geneva conventions?”

    “Yes, but we had a compelling state interest really really wanted to.

    “Don’t you think you should go to jail for breaking the law?”

    “No, because we had a compelling state interest really really wanted to!

  • slc1

    Re Michael Heath @ #4

    The problem in Iraq after the invasion had succeeded in removing Saddam Hussein was that the force was too small to impose order on the entire country, as former Army Chief of Staff, General Shinseki had testified before Congress. Recall that he said that 300,00 troops would be required, whereas only 130,000 were there. This was, in addition to disbanding the Iraqi Army.

    IMHO, the blame for this disaster rests more with then Joint Chiefs of Staff Chairman, General Richard Myers, who approved the plan, despite the reservations of General Shinseki, then with General Franks who was trying to do the best that he could with the forces he had.

    General Myers was an air force general. Another example of the folly of putting an air force general in charge of one’s armed forces is former Israel IDF chief of staff General Dan Halutz, who was responsible for the non-plan of the invasion of Lebanon in 2006. Myers and Halutz are the poster children of the incompetence of air force generals in commanding ground troops.

  • noastronomer

    @Maruc Ranum #2

    Yes I was a little confused by that statement as well. I inferred that the sentence was missing some indicator that the US has not authorised the use of these torture methods, though other countries have.

    And since the thread is already Godwin’d : this is our generations legacy, we’re compared unfavorably to the Gestapo. At least the Gestapo seemed to have some sort of rules.