Approving Torture and Destroying Documents: More Notes on the “Zelikow Memo”

CIA Abu Zubaida Interrogation Photo. Zubaida was waterboarded 83 times in one month. The Zelikow Memo concluded that this type of "enhanced interrogation" was prohibited by the McCain Amendment and the Convention Against Torture.

Yesterday, the National Security Archive received and posted the elusive “Zelikow Memo.” In 2009, after the Obama administration declassified the “Torture Memos,” former State Department Counselor Philip Zelikow went public about the existence of this memo, which concluded that the CIA could no longer legally conduct “enhanced interrogations.”  This conclusion was not a big hit within the Bush White House.

Zelikow told ForeignPolicy.com in April 2009:

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.

The memo is dated 15 February 2006, but Zelikow has confirmed that this is the memo he referred to.

He elaborated on the above bolded statement in a April 21 2009 interview with Rachel Maddow.  Zelikow told Maddow that he found out that the White House was attempting to collect and destroy copies of his memos “because I was told, ‘We’re trying to collect these and destroy them. And you have a copy, don’t you?'”

When Maddow asked why the White House might have ordered their destruction, he responded, “Why would they destroy them?  That’s a question they’ll have to answer.  Obviously, you want to eliminate records because you don’t want people to find them.”  

He stated that he was confident that copies remained at the Department of State.  And he was correct; three years later, we received one in response to a FOIA request.  But Zelikow also seemed to think that the White House attempt to scrub his opinions from history was fair game.  He told Maddow:

“They weren’t committing an act of obstruction of justice by trying to destroy copies of these memos.”

But I’m not so sure their attempt was legal. 44 U.S.C. § 3106 states:

“The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”

But don’t hold your breath.  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.”  According to an email released under FOIA to the ACLU, Rodriguez stated, “The heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.”  (Zelikow actually cited the then-ongoing investigation into the destruction of these tapes in his 2009 Senate Judiciary Committee testimony.)

More recently, the US military improperly trashed scores and scores of documents into an Iraqi garbage dump.  A New York Times correspondent was able to dig through them and find classified document describing the 2005 Haditha Massacre.   No investigation into this improper destruction of documents has been announced.

And who can forget Sandy Berger, President Clinton’s National Security Adviser who illegally hid classified documents in his socks to smuggle them out of NARA.  He actually was charged, and pled guiltily to a misdemeanor in 2005.

Zelikow recommended to Maddow that questions of any type of illegal action –including torture– should go to the DOJ.  “Refer all questions to Department of Justice.  Sort this out the way they sort other allegations of crime, and let’s see how this goes.”

Well, we now know how it went.  In instances of torture, and the destruction of documents about torture, the DOJ was unable or unwilling to hold the CIA employees accountable for their illegal and immoral actions chose to look forwards, not backwards.

Page six of the Zelikow Memo.

Here are some more quick hits on the Zelikow Memo:

• Check out the unique classification stamp at the top.  My guess is that the redacted bit refers to something related to the National Security Council.
• A full reading of the document shows that this is not the full-throated, morally-outraged rebuttal to Bush administration torture polices that some had portrayed it as before its declassification.  See, for example, the second page where Zelikow wrote that it was “fortunate” that the Senate pointed to the “cruel and unusual” standard rather than the “vaguer and potentially more restrictive term ‘degrading.'”  This leads the reader to believe that it is “fortunate” that some forms of “degrading” treatment can still be employed.  Zelikow concludes that “corrective techniques, such as slaps” were the “most likely to be sustained [allowed],” and that “[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.”
• But in Zelikow’s defense, he did tell Maddow that his memo only dealt with legal justifications, and did not deal with “policy problems.” He also told her,  “Whether it’s a good idea do to it is another question.  Is it moral is another question.”
• Another strong passage is found on page 5, where he wrote, “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, even where the prisoners were presumed to be unlawful combatants.”
• The only substantial redaction is on page 6 for b(1.4)(d), which could harm “foreign relations of the United States.”  Empty Wheel noted to me on twitter that Zelikow spoke of studying the British, French, and Israeli uses of enhanced interrogation in his Judiciary Committee statement.  He concluded that, “They show the damage that these programs can do to the counter terror effort, the process of trial and error as alternatives emerged, and the proven effectiveness of some of these alternatives.”