The Zelikow Memo: Internal Critique of Bush Torture Memos Declassified

Document Sheds Light on Disputes over Treatment of Detainees – Published on The National Security Archive, by Tom Blanton (202/994-7000), April 3, 2012.

The State Department today released a February 2006 internal memo from the Department’s then-counselor opposing Justice Department authorization for “enhanced interrogation techniques” by the CIA. All copies of the memo (Document 1), which reflect strong internal disagreement within the George W. Bush administration over the constitutionality of such techniques, were thought to have been destroyed. But the State Department located a copy and declassified it in response to a Freedom of Information Act request by the National Security Archive … // 

… The memo released today, labeled “draft,” concludes that because they violate the Constitutional ban on “cruel and unusual punishment,” the CIA techniques of “waterboarding, walling, dousing, stress positions, and cramped confinement” were “the techniques least likely to be sustained” by the courts. Zelikow also wrote that “corrective techniques, such as slaps” were the “most likely to be sustained.” The last sentence of the memo reads: “[C]ontrol conditions, such as nudity, sleep deprivation, and liquid diets, may also be sustainable, depending on the circumstances and details of how these techniques are used.”

According to Zelikow’s accounts, he authored the memo in an attempt to counter the Bush administration’s dubious claim that CIA could still practice “enhanced interrogation” on enemy combatants despite the president’s December 2005 signing into law of the McCain Amendment, which, in Zelikow’s words, “extended the prohibition against cruel, inhuman, or degrading treatment to all conduct worldwide.”

The Zelikow memo becomes the latest addition to The Torture Archive – the National Security Archive’s online institutional memory for issues and documents (including the OLC’s torture memos themselves) relating to rendition, detainees, interrogation, and torture.
(full text and Documents 1 to 5).

(In his May 2009 congressional testimony, Zelikow describes this document as part of an attempt by the State Department to enlist other U.S. government agencies to define legal standards for detainee treatment that were less “technical” and more “durable – politically, legally, and among our key allies.” The memo was appended to his testimony).

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