9/11 Commission Director Dissented on Torture Memo Directives

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Philip Zelikow, Torture Memo's, MSNBC Rachel Maddow Show Part 1 of 2

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Philip Zelikow, who acted as Secretary of State Condoleezza Rice's adviser and as a policy representative to an NSC policy committee on intelligence and terrorism issues during the Bush administration, has stated he wrote dissenting opinions on the memos that were crafted to allow the torture of prisoners held by the United States, within proposed guidelines and circumstances.

In this excerpt from an article written by Mr. Zelikow, who served as the executive director of the 9/11 Commission, he shares additional comments regarding the torture memos' subject matter, including his opinion that federal law was also violated in the creation of the torture policies enacted during the Bush Administration :

3. The legal opinions have grave weaknesses. 

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law. 

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 original article, The OLC Torture Memos: Thoughts from a Dissenter by Philip Zelikow 

A link to memoranda written by Mr. Zelikow sent to Tom Kean and Lee Hamilton titled:

Interrogations and Recordings: Relevant 9/11 Commission Requests and CIA Responses 

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