Former senior Bush official on torture: ‘I think what they did was wrong’

Philip Zelikow, top adviser to Condoleezza Rice, talks to the Guardian about his top secret 2006 memo on interrogation

A senior Bush administration official and former head of the 9/11 Commission has described CIA interrogation techniques used on alleged terrorists as torture and said he warned in a secret memo at the height of the “war on terror” that they breached the US’s own war crimes laws.

Philip Zelikow, who was the US secretary of state Condoleezza Rice’s most senior official, told the Guardian that he now regards what officials euphemistically called “enhanced interrogation”, such as sleep deprivation and waterboarding, as torture – although he did not use that word at the time and is reluctant to use it now.

Zelikow, whose official position was counsellor to Rice, said he had her support on the issue. As the state department’s representative on the National Security Council committee considering legal issues around violent interrogations, he expressed his concerns at the time in a top secret 2006 memorandum.

The memo, to other members of the committee who represented the justice and defence departments and intelligence services, warned that the CIA’s use of waterboarding and other abuses were almost certainly in breach of US and international law. But the memo so alarmed the administration that it was immediately rejected and all copies were ordered destroyed.

A draft version of the memo, found at the state department, wasreleased this week following a freedom of information request by the National Security Archive in Washington.

Zelikow told the Guardian in an email exchange that while he did not use the word torture in the memo, he believes that is what the CIA was using. “I do regard the interrogation practices and conditions of confinement, taken together, as torture – in the ordinary layman’s use of this term. But … ‘torture’ is also a term with a carefully worded legal meaning and definition. So I tend to avoid talking about ‘torture’ because it would appear I’m accusing officials of criminal activity, which I’m not sure was the case,” he said.

“I have sometimes just referred to ‘physical torment’ instead, which seems expressive and is accurate.”

Zelikow said he is uncertain whether individuals in the CIA or other services are guilty of war crimes or have other criminal liability over the use of torture because they were told by the office of legal counsel, which provides legal advice to the president, that techniques such waterboarding, which causes the sensation of drowning, sleep deprivation and stress positions, were legal.

“For better or worse, but mainly better, to be a crime one must violate the law. To be an intentional crime … So the attorney general’s legal position telling officials their conduct is legal really did matter,” he said. “Had I been in the attorney general’s or OLC’s position in 2002, I would not have interpreted either the war crimes statute (as written then) or the torture statute in the way those officials interpreted them. But they made their choices and had the authority to make them.”

But he said he has little doubt that the methods were unacceptable. “I think what they did was wrong,” he said.

Zelikow said that a later supreme court ruling that the Geneva Conventions do apply to those deemed by the Bush administration to be “illegal combatants” reinforced his position that some of the CIA’s interrogation methods were illegal. “If I was right, officials would be violating the federal War Crimes Act, a felony punishable by up to life imprisonment,” he told the Guardian.

Among those subjected to waterboarding and other tortures was the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, who is expected to go on trial for his life in the coming months along with four suspected co-conspirators at a Guantánamo military tribunal.

In his 2006 memorandum to other members of the National Security Council committee of deputies to cabinet secretaries, the highest level interagency committee considering the legality of “enhanced interrogations”, Zelikow said that such methods were in breach of the Convention Against Torture as well as a recent US law that “extended the prohibition against cruel, inhuman or degrading treatment to all conduct worldwide”.

Zelikow argued that US law on the issue applied the American constitution’s own standard regarding “cruel and unusual punishment” and that there is a long history of case law that prevents techniques used by the CIA from use in the US.

“The techniques least likely to be sustained are the techniques described as “coercive”, especially viewed cumulatively, such as the waterboard, walling, dousing, stress positions and cramped confinement,” Zelikow wrote in the memo. “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, even where the prisoners were presumed to be unlawful combatants.”

Toward the end of the memo, part of a section has been blacked out by a censor. It refers to foreign governments abandoning several of the techniques Zelikow criticises. Asked if those governments include the UK, he said: “Yes.”

Zelikow said his position as counselor to Rice did not entitle him to offer a legal opinion, but he felt obliged to put an alternative view before his colleagues at other agencies to warn them that the courts may take a different view.

Asked if Rice knew of and approved his memo, Zelikow said: “I kept her fully informed on what I was doing. She supported my work.”

Zelikow said that after the office of legal counsel decided his memorandum “was not appropriate for further discussion”, the order came from the White House to destroy all copies. “I don’t know who suggested this or why. I ignored the suggestion since it seemed so obviously improper,” he said.

The existence of the memo came to light when Zelikow gave testimony to the Senate judiciary committeetwo years ago in which he described the systematic physical abuses by the CIA as “unprecedented” and said that at least some of the legal opinions of justice department lawyers on the maltreatment of prisoners were “unsound, even unreasonable”.

“The US government adopted an unprecedented programme of coolly calculated dehumanising abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one,” he said.

Zelikow said he became concerned while serving as executive director of the 9/11 Commission, which investigated the circumstances of the terrorist attacks, because of the CIA’s unwillingness to disclose information about the interrogation of detainees and its refusal to permit access to them.

The commission made a recommendation that captured prisoners, even if defined as illegal combatants, should be treated to a standard that fits with the Geneva Conventions. The Bush administration rejected it. He finally discovered the details of the CIA programme when he was appointed to the NSC committee.

Zelikow said the policy was shaped in an “understandably merciless” atmosphere after the 9/11 attacks. “The feeling of being at war was real, at least in the White House. Almost every morning, President Bush himself received nerve-jangling briefings just on the latest threats,” he told the Senate.

Zelikow described an atmosphere in which policymakers fell under the spell of the intelligence community and became deferential “in a time of seemingly endless alarms”. But, he added, the CIA had no real experience of interrogating enemy captives and so “improvised an unprecedented elaborate, systematic programme of medically monitored physical torment to break prisoners and make them talk”.

“The intelligence community’s position in 2005, and later, was that a substantial programme of intense physical coercion was uniquely necessary to protect the nation,” he said.

But Zelkow said there were other, more established means of interrogation well known to law enforcement and the military….

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US justice department indicts former CIA officer over leaks to journalists

John Kiriakou, who questioned waterboarding during the Bush administration, allegedly shared covert officer’s name

A former CIA officer who became a key player in the debate over waterboarding as an interrogation technique was indicted on charges he leaked classified secrets to journalists, including the role of an associate who participated in a covert mission to track down a top al-Qaida figure.

The indictment of John Kiriakou, returned by a federal grand jury on Thursday, is part of an aggressive justice department crackdown on leakers and is one of a half-dozen such cases opened during the Obama administration.

The five-count indictment charges Kiriakou, 47, who was arrested in January, with divulging to journalists – including a New York Times reporter – the role of an associate who participated in the capture of suspected al-Qaida financier Abu Zubaydah in the months after the September 11 terrorist attacks. The officer’s participation in that mission was classified.

The indictment also accuses Kiriakou of separately disclosing a covert officer’s name to an unidentified journalist. The government began investigating after information about that officer appeared in a sealed legal brief submitted by lawyers representing a detainee at Guantanamo Bay. Authorities say the journalist passed on the officer’s name to a defense team investigator. The defense lawyers are not alleged to have done anything illegal

Kiriakou, who is free on bond, is scheduled to be arraigned April 13.

Authorities say Kiriakou denied to FBI agents that he had leaked the information and answered “Heavens, no” when asked if he had provided Zubaydah’s name to a reporter. They say he lied about his actions in an effort to convince the CIA to let him publish a book, “The Reluctant Spy: My Secret Life in the CIA’s War on Terror”.

The indictment includes one charge of making false statements, which carries a maximum five-year prison sentence, and four counts of violating either the Intelligence Identities Protection Act or the Espionage Act – each punishable by up to 10 years.

Kiriakou received public attention for his statements on waterboarding, which he called an “unnecessary” form of interrogation during a 2007 interview with ABC. Kiriakou said the technique had been used effectively to break down Zubaydah, who was waterboarded 83 times, and had been justified in the months after September 11. But he also appeared to express misgivings about whether the harsh interrogation method was still appropriate.

“We were really trying to do anything that we could to stop another major attack from happening,” Kiriakou said. “I don’t think we’re in that mindset right now. … And, as a result, waterboarding, at least right now, is unnecessary.”

He has since acknowledged that much of what he said turned out to be wrong. An FBI interrogator, for instance, has testified to the Senate that Zubaydah’s waterboarding did not yield important intelligence, contrary to claims by the CIA and the Bush administration. And he has acknowledged that he was not present for the interrogations and instead relied on what he’d heard and read.

Robert Trout, one of Kiriakou’s lawyers, declined to comment Thursday. But another of his lawyers, Plato Cacheris, said in January that the charges criminalized routine conduct between journalists and their government sources.

The Government Accountability Project, a whistleblower protection organization, blasted the indictment – the sixth criminal leak case opened under the Obama administration

Jesselyn Radack, the organization’s national security and human rights director, said the Justice Department was punishing a whistleblower under a law intended to prosecute spies and that Kiriakou was being targeted partly because of his public statements questioning the use of waterboarding.

“Back when no one was saying anything, back in 2007 when we were arguing about the validity of waterboarding, he was the only CIA official to say waterboarding was torture,” she said.

GUARDIAN.CO.UK