Detainee Interrogation: A Road Not Taken

05.14.09 | 2 min read | Text by Steven Aftergood

The development of Bush Administration policies on the treatment of suspected terrorist detainees was probed yesterday at a Senate Judiciary Committee subcommittee hearing, which also led to the release of two primary source documents reflecting internal Bush Administration deliberations.

Former State Department Counselor Philip Zelikow described his efforts in 2005-6 to advance a standard that would effectively prohibit “cruel, inhuman, and degrading” treatment of detainees, a standard to which, in theory, the United States was already committed.  But the practice was something different, he said.

“The U.S. government adopted an unprecedented program of cooly calculated dehumanizing abuse and physical torment to extract information,” Mr. Zelikow testified (pdf).  “This was a mistake, perhaps a disastrous one.  It was a collective failure, in which a number of officials and members of Congress (and staffers), of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision.  Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.”

Mr. Zelikow cited two noteworthy official documents in his testimony, though these were not published on the Judiciary Committee web site.  Copies were obtained by Secrecy News.

A June 2005 memorandum (pdf) prepared by Mr. Zelikow and Gordon R. England, the acting deputy secretary of defense, proposed a comprehensive approach to detention, interrogation and prosecution of suspected terrorists, that the authors said would be compatible with existing legal standards.  But their approach was rejected by Defense Secretary Donald Rumsfeld, Mr. Zelikow recalled in his testimony.  The memorandum was reported in the New York Times (Tim Golden, “Detainee Memo Created Divide in White House,” October 1, 2006) and elsewhere was quoted at length in Angler by Barton Gellman (at pp. 347-349), but the document itself has not been made publicly available until now.  See “Elements of Possible Initiative,” June 12, 2005, marked Sensitive But Unclassified.

A second memorandum, authored by Mr. Zelikow and John Bellinger, offered an alternative legal framework predicated on acceptance of the prohibition against “cruel, inhuman, and degrading” treatment.  See “Detainees – The Need for a Stronger Legal Framework” (pdf), July 2005.

By 2006, the terms of the dispute had shifted.  The Administration affirmed the prohibition against “cruel, inhuman, and degrading” treatment, but then embraced an Office of Legal Counsel argument that said the CIA interrogation program, including water boarding and the rest, did not violate the prohibition.  Zelikow’s February 2006 critique of the OLC interpretation is said to be undergoing declassification review.  Since the classification status of that critique is entirely derivative of the now-declassified OLC memos, its full and prompt declassification is to be expected.