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It took three years, but Spencer Ackerman's Freedom of Information Act request has finally put the 2006 torture memo he was seeking into his hands. The memo—which went contrary to the views expressed in a 2005 memo written by Steven Bradbury, head of the Bush administration's Office of Legal Counsel—was written by State Department counselor Philip Zelikow. He warned that the so-called "enhanced interrogation techniques" being used were against U.S. law, “even if there is a compelling state interest asserted to justify them.” Of an interview with Zelikow Wednesday, Ackerman writes:
Zelikow argued that the Geneva conventions applied to al-Qaida — a position neither the Justice Department nor the White House shared at the time. That made waterboarding and the like a violation of the War Crimes statute and a “felony,” Zelikow tells Danger Room. Asked explicitly if he believed the use of those interrogation techniques were a war crime, Zelikow replied, “Yes.” [...]

“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,” Zelikow wrote, “even where the prisoners were presumed to be unlawful combatants.” [...]

“Coercive” interrogation methods “least likely to be sustained” by judges were “the waterboard, walling, dousing, stress positions, and cramped confinement,” Zelikow advised, “especially [when] viewed cumulatively.” (Most CIA torture regimens made use of multiple torture techniques.) “Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.”

The Bush administration ignored Zelikow's warnings and last June, after a long inquiry, the Obama Department of Justice let almost all of it slide when it said no charges would be filed in 99 of 101 cases involving CIA torture of detainees. As Ackerman notes, the inquiry did not even investigate whether there was complicity in war crimes by the top Bush administration officials who put together the torture package and ordered it implemented.
“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”
It's no surprise to anyone at this late date that the thugs who put together the torture program—and ran secret prisons around the world where they could carry it out like the good little totalitarians they are—will never pay a price for it. They write their memoirs and collect their speaking fees and continue to bask in the adulation of a hefty proportion of Americans who still think torture is no big deal and, even if it were, suspected terrorists deserve it. Others who say torture is a big deal but we have to move on are complicit not just in these crimes but also the ones that will inevitably occur in the future because nothing was done about these.

•••

Marcy Wheeler, who has followed this and related issues extensively from the beginning, has additional discussion here.

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Originally posted to Meteor Blades on Wed Apr 04, 2012 at 11:34 AM PDT.

Also republished by Daily Kos.

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