As regular readers know, I rarely cross-post other articles, but the following article by Philip Zelikow, former State Department counselor and the executive director of the 9/11 Commission, which was published today on Foreign Policy’s Shadow Government blog, is a particularly notable addition to the burgeoning literature about the release, last week, of four memos from the Justice Department’s Office of Legal Counsel (OLC), which purported to justify the use of torture on “high-value detainees” seized in the “War on Terror” — and in particular, Abu Zubaydah and Khalid Sheikh Mohammed.
Zelikow’s insight is not just relevant because the 9/11 Commission had well chronicled problems securing reliable information about the supposed intelligence obtained from the “high-value detainees” (as the first link below demonstrates), but also because he was one of only three State Department officials (the others being Condoleezza Rice and John Bellinger), who saw three of the four memos (the ones written by Steven Bradbury in May 2005, as opposed to the even more secret August 2002 memo, written by John Yoo and Jay S. Bybee) at the time of their release.
Prevented from commenting directly on the memos until now (although he has been critical of the Bush administration’s policies in the years since), Zelikow’s insights are particular interesting not just for his careful dissection of the torture program’s failings, but also for his revelations that the protestations that he made at the time to colleagues at other agencies, “warning them that other lawyers (and judges) might find the OLC views unsustainable,” led the White House to “attempt to “collect and destroy” all copies of his memo.
The OLC “torture memos”: thoughts from a dissenter
By Philip Zelikow
I first gained access to the OLC memos and learned details about CIA’s program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice’s policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.
Having been the executive director of the 9/11 Commission, I’m aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most — if not all — of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.
Based on what had earlier been released, I have offered some general views on “Legal Policy for a Twilight War.” With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.
1: The focus on waterboarding misses the main point of the program
Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed “interrogation plans” to disorient, abuse, dehumanize, and torment individuals over time.
The plan employed the combined, cumulative use of many techniques of medically monitored physical coercion. Before getting to waterboarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.
2: Measuring the value of such methods should be done professionally and morally before turning to lawyers
A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score — and that would be quite valuable.
But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?
For this analysis, the administration had the benefit of past US government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.
Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question — “What should we do?” — and the legal question: “What can we do?” We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. “The lawyers say it’s OK.” Well, not really. They say it might be legal. They don’t know about OK.
3: The legal opinions have grave weaknesses
Weakest of all is the May 30 opinion, just because it had to get over the lowest standard — “cruel, inhuman, or degrading” in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass [which became the horribly compromised Detainee Treatment Act of 2005]. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 [in Hamdan v. Rumsfeld] does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3).
The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in US law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the US government with a distorted rendering of relevant US law.
At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. 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.
Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:
the case law on the “shocks the conscience” standard for interrogations would proscribe the CIA’s methods;
the OLC memo basically ignored standard 8th Amendment “conditions of confinement” analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under US law — whatever the alleged gain.
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 US 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.
Philip Zelikow is the White Burkett Miller Professor of History at the University of Virginia. He was counselor at the Department of State, a deputy to Secretary Rice, from 2005-2007.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.
For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.
Sorry to be a pain, but I really don’t see why, security agreements or no security agreements, Mr. Zelikow couldn’t have voiced Nos. 1 and 2 more forcefully before now. He could have found language that would have complied with the letter of the agreements but made his critique available to those who could have taken the ball and run with it. Instead Mr. Zelikow hid his pigskin from view. He’s a smart dude who played it way too safe. Hard to muster even the slightest respect for him. In fact, his complicity with torture calls into question his role as Exec. Direc. of the 9/11 Commission. Probably a whole lot of similar compromise went down in that department too. I think everything he’s touched should be scrutinized for this kind of company man CYA hedge betting bullshit. And his students at UV ought to hold his well-shod feet to the fire and throw a few more logs on it while they’re at it.
I’ve just read a NY Times article where Zelikow is quoted as saying that competent staff could have learned lessons from the ‘painful British and Israeli experience’ regarding the efficacy of torture. I’m at the early stages of developing a documentary project for British television and I’m wondering if anyone knows what ‘painful British’ experience he’s referring to? Presumably with respect to the interrogation of IRA captives?
See posts, Comments below for more information. I am simply shocked! I am ttrying to comment less, act more but I can’t help myself today!
See the live blog notes here on the Eric Holder, our Attorney General? Hearing Before the US House Subcommittee on Justice, etc. – Just Now –this afternoon.
http://www.afterdowningstreet.org/node/41978#comments or simply go to afterdowningstreet dot org
Hearing may have also been covered by MSNBC
Crazy that hundreds onward of Rights groups, known activists & reporters (some LIVE before this hearing) have been following all of this for years, KNOW and have carefully documented the EVIDENCE for YEARS and yet US Attorney General, Eric Holder, says in Future Tense: ” IF I see Evidence, I WILL….” How can he have been chosen for this job? What is the world thinking about such a lame answer as this?
ASK – Include in Op Ed – Rep Frank Wolf (R., Va.) asking that ALL the memos be released.
Also why in the world would our NEW ATTORNEY GENERAL imagine he can get by with not having asked to READ the remaining MEMOS by now? Why would he not have at least read Andy’s book & articles & others like them? What about ICRC, Amnesty, Human Rights Watch, many Jurist & other Legal statements and documents over 6 plus years time, National Pres. of the US Lawyer’s Guild, etc. etc.
Instead, he said that he was “NOT FAMILIAR” with them – that he had “HEARD ABOUT THEM FROM CHENEY” – who would of course like to keep them a mystery, hidden away from Holder & the rest of us.
What is the excuse for this?
Nevertheless, there were some encouraging statements & questions, at least, put rather strongly to tentatively – out on one of the US tables of justice that should help us all to keep on keeping on! Now, we need to call each member of this committee to point out what was missing.
We need to encourage & Push Sen. Russ Feingold on the need for a Special Prosecutor along with citizens & Congress’s need to Fire Judge Bybee…
[...] Among the gifts he has on offer are, 1) his book (click it to order) 2) this link to a piece by Philip Zelikow, the White Burkett Miller Professor of History at the University of Virginia and ex-deputy to [...]
Thanks for dropping by. I have no doubt that the “painful experience” referred to be Zelikow was the British IRA policy of the 70s and 80s, an unmitigated disaster whose lessons, sadly, appear were ignored by the Bush administration and have also been ignored by our own politicians.
Your documentary project sounds fascinating. Please feel free to stay in touch.
[...] About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah? and CIA Torture Began In Afghanistan 8 Months before [...]
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[…] About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah? and CIA Torture Began In Afghanistan 8 Months before […]
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