For years, the Bush torture team and its ardent supporters have depended on what might be called the Seinfeld defense of its regime of detainee interrogation: it's not a lie, if you believe it. But with the release of this week Philip Zelikow's 2006 memo warning the Bush administration about its illegal detainee interrogation techniques, that fraud is now much more difficult to sustain. That may not matter much to those unpunished and unrepentant waterboarding enthusiasts George W. Bush and Dick Cheney. But for former National Security Adviser and Secretary of State Condoleezza Rice - and her somehow intact reputation - the memo creates another issue altogether. After all, Zelikow was her aide and confidante. And as late as 2009, Rice was echoing Richard Nixon by claiming "if it was authorized by the president, it did not violate our obligations under the Convention Against Torture."
In 2009, Zelikow first told the Senate Judiciary Committee about his memo which, as Scott Horton recounted, "caused senior figures in the Bush White House to go ballistic--they actually sought to collect and destroy all the copies." Three years later, a redacted version of the Zelikow memo became public, and with it his 2006 conclusion that the Bush administration's use of "cruel, inhuman or degrading" interrogation techniques like waterboarding were "a felony war crime."
Of course, you'd never know that listening to his former boss, Condoleezza Rice. In 2005, Rice announced:

"The United States government does not authorize or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under U.S. law, wherever they may occur in the world."

Unfortunately, as CBS reported, a 232-page report released by the Senate Armed Services Committee in August 2009, "then National Security Adviser Condoleezza Rice personally gave then CIA Director George Tenet the go ahead" on enhanced interrogation techniques in early 2002. (That is, before the publication of the notorious Yoo/Bybee memo defining torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.")
But as CBS also reported on April 22, 2009, that's not what Rice told the committee:

CBS News's David Martin reported that, while serving as Bush's National Security Adviser, Rice gave verbal approval to CIA Director George Tenet to continue using harsh interrogation methods, including waterboarding and stress positions, on detainees.
Speaking to the Senate Armed Services Committee last year, Rice said she didn't recall the details of conversations at the White House regarding CIA interrogation techniques.

Just days later, Condoleezza Rice changed her defense from faulty memory to a 21st century version of Richard Nixon's memorable line that "When the president does it, that means it is not illegal." Under fire from a group of students at her beloved Stanford University, a defensive Rice protested:

"I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did."

In any event, Rice insisted, she was just following orders. "The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture," she said, before conjuring up Tricky Dick:

"The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture."

Not according to her right-hand man, Philip Zelikow.
Zelikow warned 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." Importantly, "Zelikow argued that the Geneva conventions applied to al-Qaida -- a position neither the Justice Department nor the White House shared at the time." As Spencer Ackerman recounted:

Zelikow's memo was an internal bureaucratic push against an attempt by the Justice Department to flout long-standing legal restrictions against torture. In 2005, he wrote, both the Justice and State Departments had decided that international prohibitions against "acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture" do not "apply to CIA interrogations in foreign countries." Those techniques included contorting a detainee's body in painful positions, slamming a detainee's head against a wall, restricting a detainee's caloric intake, and waterboarding.
Zelikow wrote that a law passed that year by Congress, restricting interrogation techniques, meant the "situation has now changed." Both legally and as a matter of policy, he advised, administration officials were endangering both CIA interrogators and the reputation of the United States by engaging in extreme interrogations -- even those that stop short of torture.
"We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here," Zelikow wrote, "even where the prisoners were presumed to be unlawful combatants.

All of which means Zelikow's 2006 memo is not only a significant historical document. Harper's Horton explained, "It may also provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs."

Conservative defenders of the Bush torture team argue that even if the techniques used constituted torture or cruel, inhuman, and degrading (CID) conduct, they were entitled to rely on advice from Justice Department lawyers that said the opposite. In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires "proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught."

Which means Condoleezza Rice once again has some 'splainin to do.' (The same could be said of the Obama administration, which despite its obligations under international law has refrained from prosecuting virtually anyone associated with the torture program so as to not, in Attorney General Eric Holder's unfortunate phrase, "criminalize the policy process.") Given her past excuses like this and this, Americans can be forgiven their low expectations of candor from Condi. She may not call what the Bush administration did torture. But her number two Philip Zelikow had a different description of it. To update one of her most famous quotes, I believe the title was "war crime."