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When will we ever learn?
Field Notes From A Battleground
Part 2 of 2
Last time, we learned about the three May 2005 legal memos written by the White House Office of Legal Counsel’s Steven G. Bradbury which found the CIA’s “enhanced interrogation techniques” legal. We will now discover the challenge by the State Department’s Philip Zelikow to that position, and the controversy it incited.
As Scott Horton reported for Harpers, early in April the Obama Administration released “an important document relating to the Bush Administration’s torture policies.” It was a Feb. 16, 2006, memo by Zelikow — then, you recall, a high-ranking State Department lawyer and confidant of Condoleezza Rice — formerly classified “Top Secret” and titled: “The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture.” Noting that the May 2005 Bradbury memos had concluded, and the State Department had agreed, that the Convention’s Article 16 did not apply to CIA interrogations in foreign countries, Zelikow showed that the situation had changed.
As a matter of policy, the U.S. government publicly had extended the prohibition against cruel, inhuman or degrading treatment to all conduct worldwide. Then the McCain Amendment (found in the Detainee Treatment Act of 2005) expanded the application of Article 16 to conduct by U.S. officials anywhere in the world. Hence, the prohibitions of Article 16 “now do apply to the ‘enhanced interrogation techniques’ authorized for employment by the CIA.”
Zelikow concluded that several of the techniques, singly or in combination, should be considered “cruel, inhuman or degrading treatment or punishment” under Article 16. When circulated in February 2006, his memo “caused senior figures in the Bush White House to go ballistic — they actually sought to collect and destroy all the copies,” Horton reports.
As Zelikow so deftly summed up:
“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 U.S. constitutional law. So the OLC must argue, in effect, that the methods and conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.”
Horton thinks the Zelikow memo may provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs, but I don’t believe that. Just look at the reappearance, only a couple of weeks ago, of another round of debate over whether the EITs gave us important information, with former head of the CIA’s clandestine service Jose Rodriguez arguing they did, and Sens. Diane Feinstein and Carl Levin claiming they did not.
This argument is not going to end any time soon. Rodriguez has written a book, “Hard Measures,” that soon will appear, and Sens. Feinstein and Levin rely on the nearly completed final report on the comprehensive review of the CIA’s Detention and Interrogation Program to be issued by the Senate Select Committee on Intelligence. Committee staff has reviewed more than 6 million pages of records, and the final report is expected to exceed 5,000 pages. For now, the senators tell us that the statements by Rodriguez and others about the role of the CIA interrogation program in locating bin Laden are inconsistent with the CIA’s own records.
While I am glad the Senate committee is so exhaustively researching the subject, its report will not determine whether we resume torturing alleged terrorists or not. For whether torture has ever produced important information is beside the point, I believe.
For me, it’s not that torture never “works,” but rather that the whole ball game is who we are, and what role we aspire to play in this world.
Charles R. Church is an attorney practicing in Salisbury who for years has studied Guantanamo Bay detention, torture, habeas corpus and related issues.