Zelikow summarized his views contained in the 2006 memo in an article on Foreign Policy’s website in April, 2009 and again in congressional testimony one month later. “At the time, in 2005 [and in 2006],” Zelikow wrote in 2009, “I circulated an opposing view of the legal reasoning” behind DOJ’s authorization of torture. He added: “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’s [Office of Legal Counsel's] views unsustainable.”
Indeed, in the newly declassified 2006 memo, Zelikow writes that while the State Department agreed with DOJ’s determination in 2005 that Article 16 of the Convention Against Torture (which prohibits “cruel, inhuman, or degrading treatment or punishment which do not amount to torture”) does not apply to CIA interrogations world wide,” he countered that “the situation has now changed.” What had changed was the fact that Congress passed a law applying Article 16 to conduct by U.S. officials anywhere in the world.
Zelikow concluded that practices the OLC authorized “should be considered ‘cruel, inhuman, or degrading treatment or punishment’ within the meaning of Artical 16″ while going on to explain what he views are techniques to be “least likely to be sustained” (waterboarding, walling, dousing, stress positions, and cramped confinement) and those that are “most likely to be sustained” (“basic detention conditions” and slaps).
Zelikow’s 2006 memo doesn’t deviate much from his 2005 memo on the subject that was made public shortly before his congressional hearing in May, 2009. In the 2005 memo, Zelikow and other top officials advised President Bush that the United States treat terror suspects as if they were “civilian detainees under the law of war.” The memo continued (emphasis added):
We are not saying that these detainees are necessarily entitled to this status. To be clear: We are giving them a temporary status they do not deserve. But we are not doing this for them. We are doing it for us.
Zelikow wasn’t the only Bush administration official that opposed the torture program. Bush’s top adviser Karen Hughes said in May, 2009 that she was also concerned about the program. “I was very vocal in the internal debate,” she said. “I worried about how that would make us look in the eyes of the world.”