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Zelikow's memo was an argument to dissuade illegal behavior that he saw endorsed by the 2006 Department of Justice. The memo is also a clear description of the law. It outlines the case for prosecuting those involved at any point after their acts to defy the law.
The memo makes clear that successive Justice Departments to this day have ignored their obligation to prosecute those responsible for outlawed interrogations. This would make all those responsible but failing to prosecute eligible for charges under the honest services fraud law of 1988. That law makes it a federal crime for government officials to fail to do their jobs since citizens have an "intangible right to honest services" (in this case, the expectation that federal officials violating prisoner treatment laws be prosecute).
Finally, Zelikow's charge that the Bush administration hid and tried to destroy his memo shows a conspiracy to withhold evidence. Withholding or destroying evidence can be used as a proof of guilt in criminal and civil cases.
We would be unwise to lose any sleep over the prospects of prosecutions. This is all part of the looking forward policy used by President Obama as an excuse to avoid investigating the Bush administration (and now his own) for any violations of law from prisoner interrogation to the lies that were used to manipulate the people into briefly tolerating the Iraq invasion and occupation .
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Phillip D. Zelikow statement to Congress, May 13, 2009
Murder Trumps Torture Says Bugliosi - an Interview, Michael Collins, April 8, 2009
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