What follows is a longer version of Panorama reporter Hilary Andersson's interview with John Bellinger, former legal advisor to the National Security Council.
HA: What was it like in the White House in the days right after 9/11?
JB: There was a real sense that there was going to be a major new attack that was going to come and that we needed to somehow prevent it.
HA: Were officials taking personal measures. Did you do anything?
JB: My family had plans to go to a site well outside of Washington. There were briefings inside the White House about how to use gas masks, about where the evacuation would occur, which bridges to walk out of Washington, because there was this expectation that there would be complete gridlock.
HA: So there was tremendous pressure for intelligence?
JB: There was a deep concern, that we'd be able to get additional information that would prevent further attacks and I think in part the CIA was already concerned that they had somehow failed to predict this last attack?
HA: Were you in the position of having to look at what legal options were available to the administration to try to get this intelligence?
JB: I was really not personally involved in the search for options. The CIA came to us in the spring of 2002 to say that they had captured Abu Zubaydah and that they had developed a programme to interrogate him. In my case I referred them to the Justice Department to review the legality of what they were proposing so there was not, in fact a top down plan from the White House to develop options, it was a bottom up proposal from the CIA, brought to the White House with a plan that had been developed for legal and policy approval.
HA: The world was, by and large, shocked at America's decision to depart from the Geneva Conventions as it were. Was it necessary?
JB: That's the legal issue, of what law would apply to those detained and captured in Afghanistan and there was a great debate amongst inter-agency lawyers, inside the administration, as to what the legal rules would be if that applied.
Although I have some deep concerns about the options that were developed as did the State Department at the time, there is some haziness as to the legal rules that would have applied. The Geneva Conventions indisputably were designed for conflicts between states.
HA: What was your position on the Geneva Conventions? Did you tell them, this is a bad idea?
JB: At the time I was quite concerned to find that that no law was going to apply. To conclude that neither the Geneva Conventions would apply, that even Common Article 3 would not apply, concerned me.
I think there is a reasonable legal argument that the Geneva Conventions in their entirety don't apply but the problem was, by not looking for something that did apply it did create this legal black hole, that the United States had a very difficult time digging out of. I turned around quite rapidly and said well if the Geneva Conventions in their entirety don't apply, we need to conclude that something does apply because we are a nation of laws, we're not just a nation of men and of policies.
I was a big supporter of concluding that Common Article 3 of the Geneva Conventions that sets these minimum standards of humane treatment applied. And if it didn't apply as a matter of treaty well just simply accept that it applied as a matter of customary international law. I worked with a number of my colleagues in the administration diligently from 2002 all the way through 2006 to develop those clear legal rules.
HA: There was a legal black hole?
JB: I think there was a legal black hole and that was really the problem that we had a difficult time both internally and internationally saying what it was that we stood for.
I do think it incumbent on us, to not be in a law free zone.
That absence of clear rules whether legally justified or not certainly led to grave problems for the United States and I think did lead at least indirectly to some of these cases of abuse and mistreatment.
HA: You've talked about the deficit (of) international law to deal with the conflict like the one posed after September the 11th...was Guantanamo Bay the answer to deal with this type of conflict?
JB: With respect to the legal framework there, there is certainly a perception that the United States ignored clear legal rules. And I think a perception in Europe that the rules were very clear and that the United States decided to just re-invent them, or ignore them. And certainly, without defending the many of the decisions that were made, because I disagreed with many of them, I do think that the rules are not nearly as clear as people think that they are when it comes to dealing with a conflict with non state actors.
HA: [The Geneva Conventions] outline basic standards of humane treatment, what's wrong with that?
JB: The Geneva Conventions apply as a treaty, to conflicts between states. And this was not a conflict between two states. At least with respect to the conflict with respect to al-Qaeda all of these members of al-Qaeda who came from dozens of different countries were not representing their countries.
HA: So was Guantanamo Bay the answer?
JB: I fairly rapidly became a significant opponent of Guantanamo and felt that it had become a symbol that ought to be closed down. But initially it was not at all clear that Guantanamo was going to be a problem. The military commanders, who were capturing members of the Taliban and al-Qaeda in a conflict that was only going in Afghanistan said, we have no place to hold them here, you need to get them out of here, that it was clear that they were not going to be brought to the United States, so Guantanamo was an existing military base, on an island. And so it really was quite a logical place to bring them in a very short period of time. So I think the initial decision was absolutely understandable. I doubt seriously if our Congress or any of our others would have agreed to bring in hundreds of people captured in Afghanistan, back in the fall of 2001, and transplanted them in the United States. Over time though, the negative symbolism of Guantanamo became fairly rapidly apparent, to me at least. I thought that we needed to change course, close Guantanamo, and move people to the United States.
HA: What was the response when you suggested that?
JB: [In 2004] when the President was re-elected, I wrote a transition paper on the things that we needed to do in the second term, and it was led by a list of recommendations to get out of our own black hole, with respect to detainees. And I had a long list of things that needed to be done, including addressing the CIA programme and closing Guantanamo and bringing in the CIA detainees. And clarifying the legal framework. We worked quite hard on some of those things in the second term - we ultimately, with Secretary Rice's pressure, brought in the CIA detainees, but we were never able to close Guantanamo because it was basically opposed by all of our other departments and in our government.
HA: Were you at the National Security Council principals meeting when the CIA put on the table the proposed interrogation techniques to be used on Abu Zubaydah?
JB: During that period of time, the Director of Central Intelligence, who was the President's principal foreign intelligence advisor, proposed to the National Security Council an interrogation programme which he said was safe, necessary, and effective. And that there were not alternatives to get the information necessary. We referred the CIA to the Justice Department for a legal review.
HA: At any point were you in one of these meetings with the principals where they were looking at techniques to be used on [detainees]?
JB: I was at least one meeting.
HA: Did it strike you as, extraordinary that techniques usually used by oppressive regimes were being looked at and discussed in the White House?
JB: I think at the time, because of the way it was presented by the Director of Central intelligence, and incidentally, throughout this period by four additional Directors of Central intelligence all with different backgrounds, as being a safe and effective programme based on the military's own interrogation programme. I think that general impression, and I hesitate to speak for others, but the general impression was that this was something that we used in our own interrogations at least in training, and so that there was not a sense that, oh this is something that had been reverse engineered from techniques used by other countries. While I've not spoken with members of Congress about this, the entire senior leadership of the United States, National Security Advisors, Attorneys General, Secretaries of State, Secretaries of Defense, Counsels to the President, as well at least half a dozen members of Congress and their staff were all briefed on the programme, and I think they were basically persuaded by the Director of Central Intelligence in the way that it was presented that this was in fact a reasonable programme. Now as I got more information about the programme, and then as some of the facts came back about how these things were actually done, I began to develop quite grave misgivings about the programme and ultimately strongly opposed it.
HA: What advice did you give about these techniques when you first saw them?
JB: Well my job was not to give advice on these techniques. As the counsel to National Security Advisor, my job was not to conduct a legal review of them. My job was to make sure that the Justice Department conducted a legal review of them and then to tell the National Security Advisor what sort of process that she needed to run, and my advice to her was to make sure that the Justice Department has thoroughly reviewed these, make sure that it is not just the Office of Legal Counsel, but the criminal division who were responsible for the enforcement of criminal laws. Make sure that the Attorney General has personally reviewed this, and make sure that when CIA presents this that they in fact have said that they believe that this is safe and effective.
HA: You said that when you first saw the techniques you thought they looked harsh. Did you at any point communicate that to any of the White House principals or Condoleezza Rice that these might be illegal?
JB: Over time, I developed grave misgivings about the programme and in fact I asked Secretary Rice and Steve Hadley to ask questions about the programme of each new Directors of Central intelligence and in fact, as time went on my own misgivings grew so great about this as I delved into the background of other countries' experience of the applicable law that I refused to go along with the programme as it went forward.
HA: If you were telling the administration that these techniques could potentially be illegal then by implication the White House then approved techniques that they knew might be criminal?
JB: They looked, and this was one of the problems throughout from 2002 all the way through to 2008, not to the legal advisor at the State Department, but to the Office of Legal Counsel of the Justice Department for the definitive advice on all legal matters both domestic or international. And in fact from the earliest days when there were disagreements between the Justice Department and the State Department, I was still trying to help broker some of these things. The way they were resolved was not to try to reach agreement, but to simply conclude that the Justice Department was the definitive voice. And so that meant that the State Department for at least the first few years of the administration was just completely sidelined. By the time I became legal advisor and Secretary Rice was backing my position, they began to listen more to our concerns, but still ultimately defer to the Justice Department's view on our international obligation. So I was deeply sceptical, particularly after the Supreme Court's conclusion that the Common Article 3 applied, that the international community would accept that this programme was consistent with our international obligations. But inside our system it was the Department of Justice and the Office of Legal Counsel that was the one voice that made the final calls on these decisions.
HA: The CIA agent we spoke to has said that Abu Zubaydah was water boarded around June of 2002. Who authorised that?
JB: Well if that's true, that would be a stunning development, since as I understood it, the CIA was waiting for the sign-off the legal approval of the Attorney General and for the policy approval of the NSC principals. So there may have been things that I didn't know about, it turned out there were many things in my administration that were being done behind my back. But I have to say that really would surprise me if CIA went forward, and maybe [it] was people who were in the field [who] went forward but if CIA, whether the people in the field or at Headquarters, went forward with the programme before they had received any approval from the Justice Department or from the NSC principals, that would be quite a surprise since the process was continuing.
HA: At what point did Congress become aware of the techniques the CIA was proposing?
JB: As we understood it at the White House from the CIA CIA briefed the congressional leadership, both the leaders and the leadership of the two congressional oversight committees on a number of occasions, from 2002 all the way through the continuation of the programme.
HA: Did Congress see the full list?
JB: As I understand it they did, and it would surprise me if CIA did not give them the full list.
HA: And did they raise any objections to the White House?
JB: As I understand it, no. I did not hear that directly from Congress but we were told at the White House that CIA, as they are required to do by law, they are required to keep Congress fully and currently informed of significant intelligence activities. And they told this that in fact they were briefing Congress. And the Senate Intelligence Committee's own chronology reports that they were briefed on the programme. When we asked what was the congressional reaction we were told by CIA that there was no objection, in fact some members said are you doing everything that you can? And that continued, for the duration of the programme.
Whether Congress now wishes that they had not done so, that may be, but as we understood it they had not objected to the programme, and that's the role because we have intelligence oversight committees which were set up in the 1970s after previous intelligence scandals, whose principal responsibility is to conduct oversight of intelligence activities, and so CIA was fulfilling their legal obligations to brief Congress and Congress was not objecting to the programme.
HA: Do you think crimes were committed?
JB: Crimes imply intent. Most of the crimes that we are talking about here, I think we are talking about torture...and torture, at least in US law where people would need to be prosecuted as a specific intent crime. For someone to be actually prosecuted, the prosecutor would have to allege that the accused specifically intended to torture people. Prosecutors who I have talked to, from both sides of the aisle have said that they think that would be essentially impossible to show that anyone specifically intended to torture. It may be that people made serious errors of judgement, they may have made errors on the law, it may have been that certain things were foreseeable, but that's different from the specific intent.
HA: The Bush Administration approved waterboarding, they knew that waterboarding was a technique that for decades America has defined as torture. It's now once again been called torture by the current administration. Why are you saying that there was no intent?
JB: Well they obviously specifically intended to use techniques. But because the CIA told other officials, and maybe based on advice that they were given from their own experts, that these techniques did not cause significant physical pain or psychological, therefore there was not intent to cause those things because people were being told that they didn't cause those things.
HA: Do you think there should be a criminal investigation of officials at the top of the Bush administration who authorised these techniques?
JB: I think it would be in President Obama's words a mistake to continue to look back in this way that it is time for reflection. You know, how did the senior officials in the entire Cabinet who authorised the internment of the Japanese in World War II agree to that, should they have been prosecuted for their actions? I think it's certainly worthwhile to look back at how all this can happen. How is it that the entire senior leadership of the United States government, from Secretaries of State, to Defense, to three Attorneys General, to multiple Directors of Central Intelligence, to the senior leaders of the White House, to multiple members of Congress all agree on this. I think the answer is that because they were worried about attacks on the country and the CIA Director was recommending it.
HA: Why shouldn't America ask if the law was broken and look at the individuals who authorised this, and ask the questions in a court?
JB: Well again, what the law says is that you have to have specifically intended this physical or psychological harm. And you know, did the leadership of the Congressional Intelligence Committee specifically intend to torture people?
HA: Everyone involved was looking at techniques, specifically used by oppressive regimes, which by definition don't follow the Geneva Conventions?
JB: Did the Chairman and Vice-Chairman of both Senate and House Intelligence Committees who were briefed on this and approved it, did they specifically intend to torture people?
HA: What else are you doing? I mean excuse me, you're sitting there and you're looking at a list of techniques that comes from a programme, that is based on the techniques used by oppressive regimes who specifically don't abide by the Geneva Conventions...you're looking at those techniques...what else are you doing if you're not intending to torture?
JB: Well for one thing I don't think that information was ever briefed it was certainly not told in that way to the White House or to members of Congress, that, well here's the pro and here's the con, and the pro is maybe we can get useful information, the con is you should know that the techniques that are being used have actually been reverse engineered from the Chinese. I think that had it been presented in that way you might have gotten different reactions.
HA: Oh so you're saying they didn't know about the origins of the training?
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