War crimes of the Bush Administration

Spencer Ackerman reports on a memo he obtained through a FOIA request, written by State Department counselor Philip Zelikow, which advised the Bush Administration that enhanced-interrogation techniques, like water-boarding, were torture and were therefore illegal:

A top adviser to former Secretary of State Condoleezza Rice warned the Bush administration that its use of “cruel, inhuman or degrading” interrogation techniques like waterboarding were “a felony war crime.”

What’s more, newly obtained documents reveal that State Department counselor Philip Zelikow told the Bush team in 2006 that using the controversial interrogation techniques were “prohibited” under U.S. law — “even if there is a compelling state interest asserted to justify them.”

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.”

Zelikow first revealed the existence of his secret memo, dated Feb. 15, 2006, in an April 2009 blog post, shortly after the Obama administration disclosed many of its predecessor’s legal opinions blessing torture. He briefly described it (.pdf) in a contentious Senate hearing shortly thereafter, revealing then that “I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed.”

At least one copy survived.