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Interrogation: Extreme View Of Constitutional Law

RENEE MONTAGNE, host:

We turn now to the expanding controversy over the Bush administration's interrogation of terrorism suspects. At the time, lawyers at the Justice Department in the Office of Legal Counsel concluded that certain techniques like waterboarding were not torture. The CIA used those methods until President Bush halted the program, but one man high up at the State Department disagreed with their use.

Back in 2005, lawyer Philip Zelikow was an advisor to Secretary of State Condoleezza Rice, and Zelikow wrote a memo at the time objecting and laying out the law as he saw it.

Mr. PHILIP ZELIKOW (Attorney): There's a standard that says you don't treat people in a cruel, inhuman, or degrading way. And there's an established body of law as to how we interpret it. And so the Office of Legal Counsel had worked through this and said if the national security justification is compelling enough, all the things we're doing in this program, waterboarding and the like, does not amount to cruel, inhuman, or degrading treatment.

Well, that's a grave position, because it implies that if the national security justification is compelling enough, you could do this to an American citizen in a county jail. I did not think it was likely that any federal court would agree that this was a reasonable interpretation of the Constitution and I felt obliged to argue that this was an extreme view of American constitutional law.

MONTAGNE: Could you give us an example of a specific tactic that you took issue with in your memo?

Mr. ZELIKOW: Well, it's important not to focus so much on one technique like waterboarding. One of the things that the public misunderstands by focusing on that is that that's just one piece, but there are more than a dozen techniques that were designed to be used cumulatively and in combination over time: hanging people from ceiling by chains naked so they couldn't fall asleep for days at a time, manipulating their diet, cramming them into boxes in stress positions, slapping them around; all these other things are employed in combination as part of a program.

And then you get to a question of whether we're the kind of country that wants to do things like this to people. And I didn't think we were. And neither - and I think some other people inside the administration felt the same way.

MONTAGNE: Did you make a point in the memo of saying that these techniques did not actually do the job that they were used to do - that is, get information, good solid information?

Mr. ZELIKOW: That was in other memos. We were making policy arguments and we were objecting also to the arguments that were being made about the intelligence effectiveness of this. The CIA disagreed, said we know better, we're the ones who are running this program, we think it works. I must say I think that one of the reasons that Secretary Rice was able to voice these concerns is because the president, President Bush wanted to hear them.

So what's going on here is there's a heated argument with the president's knowledge on the inside. There's also an argument going on in the outside involving Congress, and then there are activity in the courts. And the combination of all those things came together to produce a real turning point, dramatic change in the program during 2006.

MONTAGNE: Former Vice President Dick Cheney has said the interrogations produced valuable information, that the information gained helped protect against terrorist attack. Was that not at the time a reasonable argument to you for the government's interrogation policies?

Mr. ZELIKOW: I did not think it was a well-analyzed argument. The interrogation process the CIA ran, yes, it produced a lot of valuable information. That's not the question. The question is whether you could have produced information of equal value in an interrogation process that didn't use these extreme techniques.

MONTAGNE: What, though, happened to this memo? It went to the White House, went where you wanted it to go?

Mr. ZELIKOW: Yeah, the memo on my legal reasoning I handed out myself to all my partners in the interagency process. I heard then later from one of my colleagues that the White House had asked that all the copies be collected and destroyed.

MONTAGNE: Well, why?

Mr. ZELIKOW: I don't know why, but my guess, they thought I was out of line. The Justice Department is the authoritative agency for interpreting American law. They'd said their piece. And having someone who wasn't even working in the Justice Department circulating an alternative view was an inappropriate and inconvenient piece of paper.

MONTAGNE: Well, just a final question, the release of these memos on justifications for very harsh and brutal interrogation techniques, it stirred an enormous amount of controversy and debate over whether CIA interrogators should be prosecuted as well as those who helped formulate the government's policies in other areas of the administration. What are your thoughts on that?

Mr. ZELIKOW: You know, my answer that that, Renee, is the same answer that I think President Obama should give and that I think he's giving now, which is we have institutions to sort this out when people allege that there has been crime. Let's let our institutions do their job. Let's solve this problem in a way that spotlights our confidence in our institutions.

MONTAGNE: Thank you very much for taking the time to talk to us.

Mr. ZELIKOW: You're welcome.

MONTAGNE: Philip Zelikow is a professor of history at the University of Virginia. He was an advisor to Secretary of State Condoleezza Rice in 2005 and 2006. Transcript provided by NPR, Copyright NPR.

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