Revealed: Zelikow Memorandum Says Torture is not OK (Unless It's Effective)

Torture: More on the CIA-Military, Guantanamo-Iraq Link
Torture: The Hidden Photos Emerge
Video and Transcript: Bush Official Zelikow Condemns Torture Programmes

Last week we reported on the testimony to Congress of Philip Zelikow (pictured), the former State Department officer, on the "enhanced interrogation" programmes of the Bush Administration: "The administration was reserving the right to inflict treatment that might violate the so-called 'CID' standard...'cruel, inhuman, or degrading'."

In that testimony, and in other public statements, Zelikow referred to "an unclassified paper prepared with [State Department Legal Adviser John] Bellinger’s help and circulated in July 2005". The memorandum had not been made public, but the Federation of American Scientists has now obtained a copy.

Zelikow and Bellinger argue, "We do not adopt legal standards in our behavior as a favor to terrorists. We do it for ourselves, and to be able to exemplify the values that distinguish us from the terrorists." However, their recommendations are far from a prohibition of "enhanced interrogation", merely a search for whether it can effectively regulated and administered.

The two officials suggest that the Government "apply Geneva standards for civilian detainees under the law of war only to detainees held in DOD [Department of Defense] facilities" In other words, detainees held by the CIA in secret sites remain outside the Geneva Convention, although the US should "set an appropriate time period during which detainees can be held without disclosing that they are in US custody".

Then they offer their big conclusion: US intelligence services can decide whether torture, and the violation of international law, is necessary:

Ask the DNI [Director of National Intelligence] whether, based on years of experience now accumulated worldwide and in Iraq, the U.S. can achieve its intelligence objectives while treating detainees humanely, as that term is defined under minimum international standards. Or, alternatively, ask whether experience shows it is necessary, in order to achieve intelligence objectives, to have the right to use practices regarded as cruel, inhuman, and degrading.

The issue in other words --- the only issue --- is effectiveness.

UPDATED Torture: The Hidden Photos Emerge

Torture: More on the CIA-Military, Guantanamo-Iraq Link
Revealed - Zelikow Memorandum Says Torture is not OK (Unless It’s Effective)
Torture - The Pelosi "Controversy" in One Sentence

Warning: This post contains graphic images.

UPDATE (18 May): Italian newspapers La Repubblica and Il Corriere della Sera have now published some of the photos. (Hat tip to Nur al-Cubicle via UJ).

When the scandal over the Abu Ghraib abuse photographs broke in 2004, it was reported that Secretary of Defense Donald Rumsfeld was worried over "hundreds" more, as well as videotapes, that had not been revealed. It is probable that these photographs are among those whose release is being challenged by President Obama.

This morning I discovered, via the website Raw Story, that the Australian television series SBS Dateline had obtained some of the photographs in a documentary on torture in 2006. Raw Story summarised the story at the time, with 15 photographs, but little notice was taken.

After a great deal of discussion, Enduring America has decided to post the two "most moderate" photographs. We do so not to be sensationalist or voyeuristic but to show the "enhanced interrogation" carried out in America's name not only in Iraq but from Guantanamo Bay to Afghanistan to unnamed countries from 2002. We do so as an expression of concern that, in the name of "national security", the seriousness of this torture will be minimised by hiding it from us. We do so in the belief that acknowledgement of the past does not endanger America in the present but begins to redeem it.

Torture: The Pelosi "Controversy" in One Sentence

Related Post: Torture - The Hidden Photos Emerge

I have consciously avoided all comment on the furour --- whipped up by former Bush Administration officials and their supporters --- over how much Nancy Pelosi (pictured), the Democratic Speaker of the House of Representatives, knew about the torture programme from 2002. I have done so not out of political bias or a lack of academic interest (for example, the limits on Congress' oversight of illegal activity when an exclusive group of 4 or 8 legislators are given some information --- and thus sworn to secrecy --- over that activity). I have done so because this is a blatant attempt by those who served Bush to deflect attention from their actions.

I will break silence, however, to post this question which I put to Mr Karl Rove, a Bush advisor, when he wrote that Pelosi was an "accomplice to 'torture'" (I received no reply):

If Nancy Pelosi is an accomplice to a felony.....

Who are the felons?

The Torture Photos: Obama's Six-Step Sidestep

The always excellent Dan Froomkin, blogging for The Washington Post, captures a lot of what I was trying to say --- but finding it difficult because of anger and sadness --- this morning. Drawing on other analysts as well as Obama's own words, he takes apart the six excuses for refusing the court order to release the photographs of detainee abuse:

Deconstructing Obama's Excuses

In trying to explain his startling decision to oppose the public release of more photos depicting detainee abuse, President Obama and his aides yesterday put forth six excuses for his about-face, one more flawed than the next.

First, there was the nothing-to-see-here excuse. In his remarks yesterday afternoon, Obama said the "photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib."

But as the Washington Post reports: "[O]ne congressional staff member, speaking on the condition of anonymity because of the sensitivity of the photos, said the pictures are more graphic than those that have been made public from Abu Ghraib. 'When they are released, there will be a major outcry for an investigation by a commission or some other vehicle,' the staff member said."

The New York Times reports: "Many of the photos may recall those taken at the Abu Ghraib prison in Iraq, which showed prisoners naked or in degrading positions, sometimes with Americans posing smugly nearby, and caused an uproar in the Arab world and elsewhere when they came to light in 2004."

And if they really aren't that sensational, then what's the big deal?

Then there was the the-bad-apples-have-been-dealt-with excuse. This one, to me, is the most troubling.

Obama said the incidents pictured in the photographs "were investigated -- and, I might add, investigated long before I took office -- and, where appropriate, sanctions have been applied....[T]his is not a situation in which the Pentagon has concealed or sought to justify inappropriate action. Rather, it has gone through the appropriate and regular processes. And the individuals who were involved have been identified, and appropriate actions have been taken."

But this suggests that Obama has bought into the false Bush-administration narrative that the abuses of detainees were isolated acts, rather than part of an endemic system of abuse implicitly sanctioned at the highest levels of government. The Bushian view has been widely discredited -- and for Obama to endorse it suggests a fundamental misunderstanding of the past.

The notion that responsibility for the sorts of actions depicted in those photos lies at the highest -- not lowest -- levels of government is not exactly a radical view. No less an authority than the Senate Armed Services Committee concluded in a bipartisan report: "The abuse of detainees in U.S. custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own....The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

But as The Washington Post notes: "[N]o commanding officers or Defense Department officials were jailed or fired in connection with the abuse, which the Bush administration dismissed as the misbehavior of low-ranking soldiers." And the "appropriate actions," as Obama put it, have certainly not yet been taken. The architects of the system in which the abuse took place have yet to be held to account.

Then there was the no-good-would-come-of-this excuse.

Obama said it was his "belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals."

But the photos would add a lot. It was, after all, the photographs from the Abu Ghraib prison in Iraq that forced the nation to acknowledge what had happened there. There is something visceral and undeniable about photographic evidence which makes it almost uniquely capable of cutting through the disinformation and denial that surrounds the issue of detainee abuse.

These photos are said to show that the kind of treatment chronicled in Abu Ghraib was in fact not limited to that one prison or one country. They would, as I wrote yesterday, serve as a powerful refutation to former vice president Cheney's so far mostly successful attempt to cast the public debate about government-sanctioned torture as a narrow one limited to the CIA's secret prisons.

Then there was the "protect-the-troops" excuse.

Said Obama: "In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger."

But the concern about the consequences of the release, while laudable on one level, is no excuse for a cover-up.

Glenn Greenwald blogs for Salon: "Think about what Obama's rationale would justify. Obama's claim...means we should conceal or even outright lie about all the bad things we do that might reflect poorly on us. For instance, if an Obama bombing raid slaughters civilians in Afghanistan..., then, by this reasoning, we ought to lie about what happened and conceal the evidence depicting what was done -- as the Bush administration did -- because release of such evidence would 'would be to further inflame anti-American opinion and to put our troops in greater danger.' Indeed, evidence of our killing civilians in Afghanistan inflames anti-American sentiment far more than these photographs would. Isn't it better to hide the evidence showing the bad things we do?...

"How can anyone who supports what Obama is doing here complain about the CIA's destruction of their torture videos? The torture videos, like the torture photos, would, if released, generate anti-American sentiment and make us look bad. By Obama's reasoning, didn't the CIA do exactly the right thing by destroying them?"

Then there was the chilling-effect excuse.

Said Obama: "Moreover, I fear the publication of these photos may only have a chilling effect on future investigations of detainee abuse."

But how so? Under questioning, press secretary Robert Gibbs failed miserably to explain that particular rationale at yesterday's press briefing.

"[I]f in each of these instances somebody looking into detainee abuse takes evidentiary photos in a case that's eventually concluded, this could provide a tremendous disincentive to take those photos and investigate that abuse," Gibbs said.

Q. "Wait, try that once again. I don't follow you. Where's the disincentive?"

Gibbs: "The disincentive is in the notion that every time one of these photos is taken, that it's going to be released. Nothing is added by the release of the photo, right? The existence of the investigation is not increased because of the release of the photo; it's just to provide, in some ways, a sensationalistic portion of that investigation.

"These are all investigations that were undertaken by the Pentagon and have been concluded. I think if every time somebody took a picture of detainee abuse, if every time that -- if any time any of those pictures were mandatorily going to be necessarily released, despite the fact that they were being investigated, I think that would provide a disincentive to take those pictures and investigate."

Get that? Yeah, me neither.

And finally, there was the new-argument excuse.

Gibbs said "the President isn't going back to remake the argument that has been made. The President is going -- has asked his legal team to go back and make a new argument based on national security."

But as the Los Angeles Times reports, the argument that releasing the photographs could create a backlash "was raised and rejected by a federal district court judge and the U.S. 2nd Circuit Court of Appeals, which called the warnings of a backlash 'clearly speculative' and insufficient to warrant blocking disclosure under the Freedom of Information Act.

"'There's no legal basis for withholding the photographs,' said Jameel Jaffer, director of the ACLU's National Security Project, 'so this must be a political decision.'"

Margaret Talev and Jonathan S. Landay write for McClatchy Newspapers: "The request for what's effectively a legal do-over is an unlikely step for a president who is trained as a constitutional lawyer, advocated greater government transparency and ran for election as a critic of his predecessor's secretive approach toward the handling of terrorism detainees.

"Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, said he thought that Obama faced an uphill legal battle. 'They should not be able to go back time and again and concoct new rationales' for withholding what have been deemed public records, he said.

"The timing of the president's decision suggests that a key factor behind his switch of position could have been a desire to prevent the release of the photos before a speech that he's to give June 4 in Egypt aimed at convincing the world's Muslims that the United States isn't at war with them. The pictures' release shortly before the speech could have negated its goal and proved highly embarrassing. Even if courts ultimately reject Obama's new position, the time needed for their consideration could delay the photos' release until long after the speech."

Peter Wallsten and Janet Hook write in the Los Angeles Times: "President Obama's decision Wednesday to try to block the court-ordered release of photographs depicting alleged abuse of detainees by U.S. soldiers sets him on a confrontational course with his liberal base. But it is a showdown he is willing to risk -- and may even view as politically necessary...

"Obama now can tell critics on the right that he did his best to protect the nation's troops, even if the courts eventually force the disclosure.

"Obama has been facing intense criticism from former Vice President Dick Cheney and other conservatives, who have argued that the new administration's efforts to roll back Bush-era interrogation policies have made the country less safe.

"The praise for Obama that came Wednesday from Republicans such as House Minority Leader John A. Boehner of Ohio and Sen. Lindsey Graham of South Carolina can only help undercut those arguments."

But, Wallsten and Hook write: "Obama's dilemma is that he risks undermining one of the core principles he claimed for his presidency: transparency."

The Washington political-media establishment seems to approve of Obama's decision.

Rick Klein writes in ABC News's The Note: "In the broader context, it's cast as a sign of political maturation, maybe even classic Obama pragmatism. This is what it's like to be commander-in-chief -- one of those tough choices where there's no easy answer, and no shame in reversing yourself."

Ben Smith and Josh Gerstein write in Politico that Obama's reversal "marks the next phase in the education of the new president on the complicated, combustible issue of torture."

Washington Post opinion columnist David Ignatius blogs: "Is this a 'Sister Soulja' moment on national security, like Bill Clinton's famous criticism of a controversial rap singer during the 1992 presidential campaign -- which upset some liberal supporters but polished his credentials as a centrist?"

But anti-torture bloggers reject the comparison.

Andrew Sullivan blogs: "The MSM cannot see the question of torture and violation of the Geneva Conventions as a matter of right and wrong, of law and lawlessness. They see it as a matter of right and left. And so an attempt to hold Bush administration officials accountable for the war crimes they proudly admit to committing is 'left-wing.' And those of us who actually want to uphold the rule of law ... are now the equivalent of rappers urging the murder of white people."

In a separate post, Sullivan writes: "Slowly but surely, Obama is owning the cover-up of his predcessors' war crimes. But covering up war crimes, refusing to proscute them, promoting those associated with them, and suppressing evidence of them are themselves violations of Geneva and the UN Convention. So Cheney begins to successfully coopt his successor."

Mr President, Torture Still Matters: Obama Puts Away The Abuse Photographs

Related Post: Video - Obama Decides Not to Release Photographs of Detainee Abuse
Related Post: Bush Official Zelikow Condemns Torture Programmes
Related Post: FBI Agent Ali Soufan Testifies on Torture

This may be one of the most difficult articles I have ever written. For when I heard last night that President Obama had decided to withdraw White House consent for the release of photographs of the abuse of detainees, my reaction was dismay and, yes, revulsion. Having declared in his Inaugural Speech that the US would never again separate security from values, having signed an Executive Order "banning" torture, having promised to close the Guantanamo Bay detention facility, here was Obama --- faced with the recognition of the past --- refusing to allow that acknowledgement.

And he was doing so, ironically, horribly, with the same rationale that the Bush Administration used for eight years whenever it did not want the political inconvenience of knowledge, let alone debate, of its actions: because "national security" demanded that we did not hear or see.

But first, to keep this post on an analytic rather than emotional level and to provide essential context, this is not a case of the White House volunteering the photographs and then retracting. The release of the pictures has been ordered by a United States District Court hearing a case brought by the American Civil Liberties Union.

So there is an Alice-in-Wonderland quality about Obama's opening words, "These photos are associated with closed investigations of alleged abuse of detainees". The President invokes the legal process to say that his Administration has to defy...the legal process.

(What's more, Obama's assertion is either a lie or a misstatement. Later, he indicated that the photographs related to an investigation, started "long before" he took office, which has always been completed by the Pentagon with "appropriate actions taken". So there is no "ongoing" legal investigation within the military.

Obama did refer to the "chilling effect" that these photographs might have on future investigations of detainee abuse. Even if such investigations are being contemplated, and there is no indication that this is case, this is a red herring. The photographs in question pertain to past enquiries and would have no standing in any prosecution of unrelated incidents.)

The second Obama rationalisation was that "these photos are not particularly sensational. especially when compared to the painful images we remember from Abu Ghraib". If this was an issue of whether the release of the photos is to satisfy voyeurs of torture, this might be relevant --- nothing to see here, folks, move along.

But that is not the issue. Abuse is abuse, irrespective of its "sensational" appearance (indeed abuse such as extended sleep deprivation is quite banal). A person does not have to be hooded and standing on a box in a crucifix position for the act to qualify as torture.

But Obama was saving his headline rationale for last: releasing the photographs would "inflame anti-American opinion and put our troops in danger". No need for subtle readings here: if you make me accept the court decision, our boys will be killed.

I'll give the President the benefit of the doubt, as Juan Cole does, that he has been persuaded of this by the US military and that this isn't an emotional fig leaf. But let's be clear: any insurgent or "extremist" who wants to shoot at or blow up American troops already has more than enough pretext from the last eight years: he/she can invoke what is already known or suspected about the torture and abuse in Iraq, Afghanistan, Guantanamo Bay, and secret CIA "black sites" around the world.

So instead you have to presume that Obama believes that others who are not currently fighting US forces will be prompted to do so by these photographs. Yet, if the pictures in question are not "sensational", if they do not match up to the horrors of Abu Ghraib, why would they provoke such a decision?

That logic leads to one of two conclusions: either the photographs are innocuous, and Obama is blowing smoke about "anti-American" reaction, or they are so horrific that they will provoke previously non-violent individuals to a murderous response. (For the sake of humanity, I hope it is the former.)

To be blunt, if not yet emotional, Obama's reasons are flimsy and at times illogical. So, since the President is normally quite intelligent and logical, the statement is more of a cover-up than the actual reason behind his decision.

So what did happen? Obama gave in to pressure.

In part, the pressure came from the public bubble of Washington politics. The Dick Cheney roadshow may be a distortion, even a fabrication, of what actually happened in the Bush years, but his banging away --- assisted by an array of broadcasters and newspapers --- at the risk to "national security" of the torture investigations finally put a dent in the White House. It is no coincidence that, 24 hours before Obama's statement, the former Vice President's first attack in an interview with Fox was on the release of the photos.

That, however, is only one pressure --- and probably a less important pressure --- that buckled Obama.

The ultimate "winners" in this sordid battle are US military commanders, supported by top officials at the Central Intelligence Agency. CIA Director Leon Panetta had already let it be known that he objected to any more disclosure of photographs, and Secretary of Defense Robert Gates fired his own volley on Wednesday. While generals kept their mutterings private, the gist of their opposition came out in suitably-placed media pieces.

While those commanders did put out the word that their troops would be endangered by the publicity over the photos, they had other considerations. The US military is still detaining insurgents in Iraq and Afghanistan. The CIA and military are still working with allied countries, such as Pakistan, who have their own methods of interrogation.

Public exposure of what occurred in the past could conceivably limit, apart from Obama's necessary reference at the end of his statement that "the abuse of detainees...will not be tolerated", what measures could be taken in future. Inquiry and investigation raises that the prospect that military and intelligence officials are, in theory at least, legally accountable.

In this continuing War on Terror, that's still not an acceptable risk. Instead, the story has to be maintained that torture was only, in Obama's words, "carried out in the past by a small number of individuals". The "chain of command", both political and military, has to be put beyond scrutiny.

This is not to say, of course, that the "enhanced interrogation" goes on, at least not in the form sanctioned by the Bush Administration from 2002 to 2005. It is to say that the risk of a system of oversight, prompted by a full recognition of what occurred in those years, must not be taken.