Video and Transcript: Colin Powell on Face the Nation (24 May)

Video and Transcript: Colin Powell on Face the Nation.

On Sunday, former Secretary of State Colin Powell appeared on CBS's Face the Nation. The interview is the latest round in an ongoing battle with other Bush Administration officials, notably the former Vice President Dick Cheney, over national security issues, the Republican Party, and attitudes toward President Obama.


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SCHIEFFER: And good morning again. On this Memorial Day weekend, former Secretary of State and former Chairman of the Joint Chiefs Colin Powell is with us in the studio this morning. Thank you, General. It has been quite a two weeks, as you know. It was on this broadcast that your old boss and colleague, Dick Cheney, accused this administration of putting the nation's security at risk.

He finalized that argument in a speech last week. Said he had no regrets about the terrorist -- the methods in dealing with terrorists that the administration took. He criticized the closing of Guantanamo. I'm going to ask you about all of that, but I want to start where he ended his interview here on FACE THE NATION when he said some things about you. Here's what he said.

(BEGIN VIDEO CLIP)

SCHIEFFER: Rush Limbaugh said the other day that the party would probably be better off if Colin Powell left and just became a Democrat. Colin Powell said Republicans would be better off if they didn't have Rush Limbaugh out speaking for them. Where do you come down?

DICK CHENEY, FORMER VICE PRESIDENT: Well, if I had to choose in terms of being a Republican, I'd go with Rush Limbaugh, I think. I think my take on it was Colin had already left the party. I didn't know he was still a Republican.

SCHIEFFER: So you think that he's not a Republican?

CHENEY: I just noted he endorsed the Democratic candidate for president this time, Barack Obama. I assume that that is some indication of his loyalty and his interest.

SCHIEFFER: And you said you'd take Rush Limbaugh over Colin Powell.

CHENEY: I would.

(END VIDEO CLIP)

SCHIEFFER: Well, there you have it, General. So I guess the first question, are you a Republican?

POWELL: Let me answer it this way, if I may, Bob. Rush will not get his wish. And Mr. Cheney was misinformed. I am still a Republican. And I'd like to point out that in the course of my 50 years of voting for presidents, I have voted for the person I thought was bestqualified at that time to lead the nation. Last year I thought it was President-now Barack Obama. For the previous 20 years I voted solidly for Republican candidates. Voted for Ronald Reagan twice. George Bush 41 twice. George Bush 43 twice. I spent eight years in Bush administrations. I served Ronald Reagan for two years. I spoke at the 1996 convention and I spoke at the 2000 convention. What the concern about me is, well, is he too moderate? I have always felt that the Republican Party should be more inclusive than it generally has been over the years. And I believe we need a strong Republican Party that is not just anchored in the base but has built on the base to include more individuals. And if we don't do that, if we don't reach out more, the party is going to be sitting on a very, very narrow base. You can only do two things with a base. You can sit on it and watch the world go by, or you can build on the base. And I believe we should build on the base because the nation needs two parties. Two parties debating each other. But what we have to do is debate and define who we are and what we are and not just listen to diktats that come down from the right wing of the party.

SCHIEFFER: Well, why do you think the former vice president said what he said?

POWELL: Well, I assume that was his point of view. But he was misled if he thought I left the party. You know, neither he nor Rush Limbaugh are members of the membership committee of the Republican Party. I get to make my decision on that. And so I will continue to work in a way that I think is helpful to the country and helpful to the party. And there are good reasons for this. I mean, in the military we have something called afteraction reviews. After a battle or after a training exercise you bring all of the leaders in. And you say, what's going right? What's going wrong? What did do right or wrong? And how do we move forward? It's a no-holds-barred candid discussion of where we are. That's what the Republican Party needs now. When you look at the results of the election last year, lost the presidency by 10 million votes. Lost that campaign by 10 million votes. We saw both houses of Congress switch to the Democrats. We saw whole sections of the country move to the Democratic column, Virginia, my state, Democratic. Florida, Nevada, other places. We looked at all of the demographics of it, a Gallup poll had a series of indicators. And in almost every demographic indicator, the Republican Party is losing. North, south, east, west. Men, women, whites, blacks, Hispanics. And I think the Republican Party has to take a hard look at itself and decide what kind of party are we?

POWELL: Are we simply moving further to the right, and by so doing opening up the right-of-center and the center to be taken over by independents and to be taken over by Democrats? You look at the statistic in Pennsylvania that Arlen Specter has cited -- 200,000 Republicans in Pennsylvania switched their allegiance to become Democrats in the election of 2008. That kind of leakage cannot continue if the Republican Party is going to play a major role in the life of our country. And if you look at the other statistics that is around these days and the number of people identifying themselves as Republicans has dropped significantly, into the low 20s. And among those low 20s, they're not all conservatives. A lot of them are fairly moderate or right-of-center Republicans, who are concerned about the right wing. And they're not that vocal about it, because if you are vocal, you're going to get your voice mail filled up and you're going to get lots of emails, like I did.

SCHIEFFER: What about Rush Limbaugh? A lot of people who are Republicans say, hey, people are taking him too seriously. He is just an entertainer. But he's been on your case for quite a while. When you announced you were voting for Barack Obama, he said the only reason he's doing that is because Barack Obama is black. Was he calling you a racist?

POWELL: I don't know what he was doing by that, and I don't want to exchange insults with him. But I thought it was unfortunate. I laid out a very specific set of reasons as to why I was voting for Barack Obama. Mr. Limbaugh saw fit to dismiss all those reasons and put it into a racial context, that the only reason I did it is I was black and I had never voted for a Democrat before. Well, yes, I have. I voted for John Kennedy. I voted for Lyndon Johnson. I even voted for Jimmy Carter. And I've always tried to vote for the best man. But he put it in that racial context, and I thought that that was very unfortunate. What about the 69 million people who voted for Barack Obama? Did they all do it on the basis of race? Why doesn't he sort of comment on those? But Mr. Limbaugh is entitled to his opinion. And I don't say he shouldn't have a opinion. The nature of our country is we ought to debate these things. But he shouldn't have a veto over what someone thinks. And he's an entertainer. He is a radio figure, and he is a significant one. But he's more than that. When the chairman of the RNC, Michael Steele, issues the mildest of criticism concerning Mr. Limbaugh, and then 24 hours later the chairman of the RNC has to lay prostrate on the floor apologizing for it, and when two congressmen offer the mildest criticism of Mr. Limbaugh, they too within 24 hours have such pressure brought to bear on them that they have to change their view and apologize for criticizing him -- well, if he's out there, he should be subject to criticism, just as I am subject to criticism. Let's debate the future of the party. And let's let all segments
of the party come in. You know, my model for the Republican Party is a great man we just lost, a man by the name of Jack Kemp. Jack was as conservative as anybody. We all know Jack. And Jack also was a man who believed in inclusiveness, reaching out to minorities, reaching out to the poor, sharing the wealth. Which became a bad term last fall, but sharing the wealth of the country not only with the rich, but with those who are least advantaged in our society. It's that kind of Jack Kemp Republicanism that I like, and I would like to see the party move more in that kind of a direction.

SCHIEFFER: Let's talk a little bit about Guantanamo. The vice president came out very hard against the Obama administration and his policies. He said it would be a mistake to close Guantanamo. Others have said it would actually pose a danger to this country if these people are brought back. Do you think Guantanamo should be closed, General?

POWELL: Yes. I felt Guantanamo should be closed for the past six years, and I lobbied and presented reasons to President Bush. And Mr. Cheney is not only disagreeing with President Obama's policy. He's disagreeing with President Bush's policy. President Bush stated repeatedly to international audiences and to the country that he wanted to close Guantanamo. The problem he had was he couldn't get all the pieces together. Secretary Rice, Secretary of State Rice and Secretary of Defense Gates had come forward with plans, but the plans ran into difficulties with Department of Justice and others. So it is a complex problem, and President Bush wasn't able to close Guantanamo on his watch. And President Obama came in saying he would close Guantanamo, and he has run into some of those same sorts of problems. So I think we need to kind of take the heat out of this issue. I think President Obama didn't handle it very well by going up to the Congress and asking for $80 million without a plan. And by, frankly, giving enough time to opponents of it to marshal their forces as to why we shouldn't do this. But Guantanamo has caused us a great deal of trouble throughout the world. And Mr. Cheney the other day said, well, we're doing it to satisfy European intellectuals or something like that.

POWELL: No. We're doing it to reassure Europeans, Muslims, Arabs, all the people around the world that we are a nation of law. It isn't so much Guantanamo. It's the people at Guantanamo. How do we deal with them? We can't keep them locked up forever. This business about making the country less safe by bringing these people to our prison system, we have got two million people in jail in America. The highest incarceration rate in the world. And they all had lawyers. They had all had access to the writ of habeas corpus and they're all in jail. And I don't know, Bob, if you've ever seen some of these prison reality shows on television where they show you what a super lock-up is. I'm not terribly about worried one of these guys going to a super lock-up and being ...

SCHIEFFER: So you think they can be brought here and kept safely without posing any damage?

POWELL: Yes. Yes. I think it should have been done immediately and not start looking for $80 million to build prisons. Look, we're talking about roughly 240. The hard-core problem is that there are some of them that you really do not have cold evidence on that you could put before an Article III court. That's the problem that President Bush struggled with. It's the problem that President Obama is struggling with. We may have to find new legislation or have the Congress assist us with this. But let's get it into our system of laws with an executive and a legislative and a judicial branch all working it together.

SCHIEFFER: Have you talked to President Obama about this?

POWELL: Yes.

SCHIEFFER: You have? And what have you talked to him about?

POWELL: The views I have just expressed to you President Obama has heard from me.

SCHIEFFER: He has heard from you on this.

POWELL: I have been public on this.

SCHIEFFER: Do you think that he can get the Congress to go with him on this? I'm told there are people like Lindsey Graham and maybe even John McCain who might be willing to help him with this but only if he presents a detailed plan.

POWELL: I think that's the message that came out of Congress. We can't give you $80 million. There's a lot of internal home resistance to bringing these people into the country. So you come forward with a plan that makes some sense and you tell us how you're going to resolve all of these cases and do it in a way that we can support and then maybe we can move forward. So I think it was premature to ask for the money. It was premature to say we're going to give it to work out and then immediately ask for the money for something. John McCain has been a strong supporter from the very beginning of closing Guantanamo but in recent days he's been saying, I haven't moved off that point but you have to give us a plan. This has become very, very political. And so I think after we have had these dueling speeches and the controversy of recent days, things will settle down and the president can go off and spend some time with his staff thinking it through all the way and coming up with a plan just as he said he would do in his speech. And one point I have to make. It really comes out of the things that have been written lately. That is in the first year after 9/11, we did everything we could to stop the possibility of another 9/11. We put in place the PATRIOT Act. We used enhanced interrogation techniques. I shut down for the most part the visa system until we could fix it. But after about a year-and-a-half when it looked like things were relatively secure and we were doing a better job, then we started to relax the visa system once we fixed it because we can't keep moving in that direction with putting people in jail forever without resolving their cases. We're not letting people come to our country. So it was natural to start shifting back to our more normal ways of doing business and dealing with the rest of the world after we had achieved a level of security. We are more secure. I mean, my Republican friends sort of get mad when I say we need government. People want effective, responsible government. Republicans have not cut much government even though talk about limited government and cutting government. We created the Department of Homeland Security. Needed. We created the Transportation Security Agency that guards our terminals where people go in and out. Needed. We created a director of national intelligence. Needed. The American people want to see a FEMA that takes care of us in hurricanes and tornadoes. The American people want to see federal regulators making sure we never get into the kind of financial problem we had last year. And we're working our way out of it. So there is a need for government. What the American people want not just slogans, limited government. They want effective government. Government that works and just as much as we need. But if we need it, let's have it.

SCHIEFFER: All right. Let me ask you this. The former vice president said he had no regrets about the methods that were used including waterboarding. He actually authorized it. He says they may have saved thousands of lives. I want to ask you two questions. Do you agree with that? That these techniques were effective? And number two, when did you know about this business, general?

POWELL: When we started to examine these techniques I was in some meetings where they were discussed.

POWELL: I was not privy to the memos that were being written or the legal opinions that were being written.
I think it was unfortunate but we had a system that kept that in a very compartmented manner. And so I was apart that these enhanced interrogation techniques were being considered. And they were judged not to be torture at the time. And when you were facing the possibility of a 9/11, you had to give some -- some flexibility to the CIA. But it was under the Bush administration that they stopped using these techniques back in 19 -- in 2003. So obviously the CIA did not feel that we had anybody else in our custody that would need to have these techniques used. And as a result...

SCHIEFFER: Do you think they were effective?

POWELL: ... they haven't been used -- I have no idea. I hear that they were. I hear that they weren't. You see people from the FBI who come out and say, we got all of that information before any of that was done. I cannot answer that question. And the problem is, I don't know what I don't know.

SCHIEFFER: Let me just ask you this. Jan Crawford Greenburg of ABC News reported last year that the top people in the administration, you, the secretary of state, the secretary of defense, the national security adviser, were actually brought in to meetings in the White House where these things were outlined. But you're saying you don't know -- at those meetings you're saying that nothing was (INAUDIBLE)?

POWELL: They were outlined. We were aware that these techniques were being discussed. And we were aware that legal opinions were being given that said they met the standard of the law. But over time, now that we look at it, it's easy now in the cold light of day to look back and say, you shouldn't have done any of that. But as Mr. Cheney has said very, very often, as has President Bush and all of us, if we had another attack like 9/11, say on 9/11 a year later, nobody would have forgiven us for not doing everything we could. And the CIA thought we needed those kinds of techniques but now we see that these are not appropriate. And I saw a guy on television being waterboarded yesterday, this correspondent, this television commentator, and in six seconds -- he thought he could take it. He thought it was just like swimming. In six seconds he was screaming that he had be released from this kind of waterboarding. And remember waterboarding comes out of your Survival, Evasion and Escape techniques. And those were intended to be torture to show our guys what they should be subjected to.

SCHIEFFER: We have just a second left. Memorial Day weekend. I know this is a meaningful weekend for you.

POWELL: This is a time when we reflect on the privilege we have had as citizens to have had other citizens willing to put their lives on the line. And so let's remember all of those who served their nation. Remember their families. And remember those who were injured and are still with us. And there will be another wonderful Memorial Day concert this evening on the West Lawn of the Capitol. And I will be there with a number of other people to celebrate the sacrifice of our young men and women, especially those who are serving in Iraq and Afghanistan today. They are also a greatest generation.

SCHIEFFER: Thank you very much, General. Thanks for being with us.

Video and Transcript: Bush Official Zelikow Condemns Torture Programmes

Related Post: Revealed - Zelikow Memorandum Says Torture is not OK (Unless It's Effective)
Related Post: FBI Agent Ali Soufan Testifies on Torture

Ironically, as President Obama was trying to tuck away any more photographs revealing the US Government's torture of detainees, former Bush Administration official Philip Zelikow was dissecting the legal and political cover for "enhanced interrogations" in testimony to a Senate committee. He reiterated that the techniques was approved at the highest levels of the Bush White House, including by his immediate boss, Condoleezza Rice, and that his memorandum objecting to the torture  (still classified by the US Government) was blocked by other Bush officials. And he offered this pertinent point: if the torture methods were considered legal in their application against "foreign" detainees, then they would also be legal in application against US citizens.

C-SPAN has decided to charge $60 for the videos of the hearings before the Senate committee, which also included testimony by Ali Soufan (posted in a separate entry), the FBI agent who questioned 9-11 planner Khalid Sheikh Mohammed. So we offer two videos --- a summary of the Soufan and Zelikow testimonies and Zelikow's interview with Rachel Maddow --- and the transcript of Zelkow's statement:

VIDEO (Part 1 of 2)

[youtube]http://www.youtube.com/watch?v=LU2BlALKZjM[/youtube]



VIDEO (Part 2 of 2)

[youtube]http://www.youtube.com/watch?v=ANOIHvQ5RNE[/youtube]

ZELIKOW: Mr. Chairman, Senator Sessions, thank you for giving me the opportunity to appear before you today. The declassification of Justice Department legal opinions on the legality of an interrogation program operated by the CIA has reopened an important public debate. The debate is on how the United States should get intelligence from captives taken in the global armed conflict against the violent Islamist extremist organization, al Qaeda, its allies, and its affiliates, as these organizations wage war against our country, and our people.

The Committee has my c.v. so I won’t detail my experience or scholarship. I will concentrate in this statement on my involvement in debates on the treatment of enemy captives in order to discuss the effectiveness of such methods and the legal reasoning employed to judge this and future intelligence programs.

At the outset, I will address a few frequently asked questions:

-- I have no view on whether former officials should be prosecuted. We have institutions to make those judgments. The factual and legal story is complicated, more complicated than is generally recognized. We should let our institutions do their job.

-- There should be a thorough inquiry, yielding a public report, to: comprehend how the United States came to operate such an unprecedented program so that we can learn from that; and evaluate whether the more constrained intelligence program we have been operating against al Qaeda in Iraq for at least four and a half years and against al Qaeda worldwide for at least three and a half years is adequate to protect the country. I think it is. But important people have challenged that view. Since the issue is so important, our current approach should be validated, or it should be changed. -- I have no view on whether Justice Department lawyers acted unethically or improperly. I believed at least some of their legal opinions on this subject were unsound, even unreasonable. But I don’t know how they did their work. Others should judge.

In 2003, while serving as executive director of the 9/11 Commission, some of my staff colleagues and I were concerned because the CIA was unwilling to disclose information about the conduct of the interrogations of key detainees and would not allow access to the detainees or the interrogators.1 The Commission’s concerns deepened as press reports in 2004 indicated that detainees might have been abused. Therefore, in its July 2004 report, the Commission formally recommended that the United States “engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists” drawing “upon Article 3 of the Geneva Conventions on the law of armed conflict,” an article “specifically designed for those cases in which the usual laws of war did not apply.”

This article, common to all four of the Geneva Conventions on armed conflict, was meant to provide a ‘floor’ to handle situations where usual POW status does not apply. It prohibits “cruel treatment” under any circumstances and bans “outrages upon personal dignity, in particular humiliating and degrading treatment.” In its recommendation, the 9/11 Commission noted that these “minimum standards are generally accepted throughout the world as customary international law.”

Although the Bush administration accepted most of the Commission’s recommendations, this was one of the few it did not accept. That refusal plainly signaled that the administration was reserving the right to inflict treatment that might violate the so-called “CID” standard. “CID” stands for “cruel, inhuman, or degrading” – a standard expressed, in slightly varying terms, in Common Article 3 of the Geneva Conventions that I just mentioned, in the Convention Against Torture, another signed and ratified treaty obligation, and is a standard also found in a Protocol to the Geneva Conventions that had been accepted by most countries and by the United States during the Reagan administration. The administration’s initial rejection of the 9/11 Commission recommendation on this point was therefore both revealing and troubling.

As 2004 turned to 2005, the controversy about the treatment of captives intensified. There were the revelations of detainee abuse in military facilities in Iraq, and reports of alleged murders. There were reports of past abuses at the Guantanamo facility. There were growing rumors and reports about other sites run by the CIA. I later learned that, in 2004, the CIA Inspector General, John Helgerson, had prepared a secret report that was plainly skeptical and worried about the Agency’s treatment of captives. I was acquainted with Helgerson and respected his judgment; I also later talked to CIA officials who worked on this study. An important critique, the IG report was also another reminder about the outstanding professionalism that can always be found in the Agency’s ranks.

In 2005, I became Counselor of the Department of State. This should not be confused with the duties of the State Department’s Legal Adviser. The “Counselor” is an old office at State, a place where the Secretary puts someone who serves as a kind of deputy on miscellaneous issues. Among my duties, I was to be the subcabinet “deputy” for the Department on issues of intelligence policy or counterterrorism.

By June 2005, President Bush wanted to reconsider the current approach. He asked his advisers to develop real options for the future of the Guantanamo facility, for the eventual disposition of detainees held by CIA, and to look at the standards governing the treatment of enemy captives.

Secretary of State Condoleezza Rice was in favor of change. Also supporting change was her Legal Adviser, John Bellinger, who had held the same job for her on the NSC staff. Bellinger was already deeply concerned about detainee policies and carried scars from earlier bureaucratic battles on the topic.

Subcabinet deputies began meeting regularly in highly sensitive meetings to consider these issues. I represented the Department at these meetings, along with Mr. Bellinger. I was thus ‘read in’ to the details of this particular CIA program for the first time.

Why was such a program adopted? I do not yet adequately understand how and why this happened. But four points stand out:

First, the atmosphere after 9/11. The country had suffered the most devastating single attack in its history. Attitudes toward those behind this mass murder were understandably merciless. 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. Almost every afternoon, usually at 5 p.m., George Tenet would review the latest engagements as a de facto Combatant Commander in a global war. Some of the threat reports were apocalyptic, some scares have never become public. I saw many such reports when serving on the President’s Foreign Intelligence Advisory Board.

One result was that the tough, gritty world of ‘the field’ worked its way into the consciousness of the nation’s leaders to a degree rarely seen before, or since. A large cultural divide shadowed these judgments, a divide between the world of secretive, bearded operators in the field coming from their 3 a.m. meetings at safe houses, and the world of Washington policymakers in their wood-paneled suites. As the policymakers sense this divide, they often and naturally become more deferential – especially in a time of seemingly endless alarms. What policymakers can sometimes miss, though, is that the world of the field has many countries and cultures of its own. Seasoned operators often disagree about what the government should do, and did in this case, but policymakers were rarely aware of these arguments.

Second, the CIA – an agency that had no significant institutional capability to question enemy captives – improvised an unprecedented, elaborate, systematic program of medically monitored physical torment to break prisoners and make them talk. This program was apparently based on the SERE program familiar to civilian and military intelligence officials from their training. The program was reportedly reverse-engineered and then sold to policymakers as being no more than “what we do to our own trainees.” Much about this policy development process is still unclear, though press reports have already discussed some of the fallacies and omissions in the reverse-engineering approach.

There have also been conflicting accounts about the role of “supply” and “demand”: CIA policy entrepreneurs and officials in the White House or in the Office of the Vice President who were pushing for better intelligence. Nor is it clear just how the program evolved. It would be important to grasp how the program was understood and sold at each stage in this evolution. But the program would not have come into being unless an executive department or agency of the government was willing to develop it and defend it.

Third, the leaders of the CIA evidently believed, and told the government’s leaders, that their program would be uniquely effective in getting information from high-value captives. “Uniquely” is the key word. After all, other kinds of interrogation programs were well known to experts in law enforcement and the U.S. armed forces. The Director of the CIA, the de facto combatant commander in an ongoing fight, apparently emphasized that there were no good alternatives to adoption of this proposal.

Fourth, Attorney General John Ashcroft and his Department of Justice, along with the White House Counsel, Alberto Gonzales, assured the government’s leaders that the proposed program was lawful. Those assurances were renewed by Ashcroft’s successor, Mr. Gonzales, and by Gonzales’ successor as White House Counsel, Harriet Miers.

I will discuss the legal issues in more detail in a moment. For now, I wish to return to the issue of unique “effectiveness” and the supposed absence of alternatives.

There is quite a bit of empirical and historical information available about interrogation experience in this country, in its past wars, and in the experiences of other democracies facing terrifying threats. I have done some work on the British, French, and Israeli experiences. These experiences and others are highly instructive. They show the damage that these programs can do to the counterterror effort, the process of trial and error as alternatives emerged, and the proven effectiveness of some of these alternatives. America has had extensive experience with interrogation of high-value detainees, especially in World War II when special facilities were created for this purpose. The national policy then was to treat the detainees humanely, even though thousands of lives were potentially at stake in the midst of a brutal, total war. It is not clear how much, if any, of this knowledge was canvassed and analyzed when the critical arguments over adoption of this unprecedented program were occurring in 2002 and 2003.

By the time I began engaging in these arguments, in the spring and summer of 2005, another important source of data had emerged. This was the American intelligence and interrogation effort against al Qaeda in Iraq. This was an interagency effort, including CIA and FBI experts, organized by the military’s Joint Special Operations Command. By 2005, if not earlier, this program was complying with basic international standards in its interrogation of captives. The program was high-tempo and time-urgent. The officers running the interrogation program considered it effective and, at least by mid-2005, the government’s leaders were aware of their positive assessment.

Nonetheless, the intelligence community’s position in 2005, and later, was that a substantial program of intense physical coercion was uniquely necessary to protect the nation. The arguments that have appeared recently in the press are the same arguments, even using some of the same examples, used to defend the program against its internal critics four years ago.

Examples of success cite plots thwarted or terrorists captured. Some of these examples may not be accurate. Others may be exaggerated, or they may mask murky, internal arguments among operatives and analysts about whose source proved out, or which lead was key. Rival claims of credit that often accompany successful cases. But getting into a debate about whether the CIA program produced useful intelligence misses the point.

The point is not whether the CIA program produced useful intelligence. Of course it did. Quite a lot. The CIA had exclusive custody of a number of the most important al Qaeda captives in the world, for years. Any good interrogation effort would produce an important flow of information from these captives.

Complicating the story, the CIA did not just rely on physical coercion. A long-term interrogation program was also being employed, mustering a number of experts using growing skill in patiently mining for more information and assimilating it. Indeed, one of the tragedies of this program is that the association with physical coercion detracts attention away from some of the very high quality work the CIA did do for the country, quality work that has continued in recent years even after this program was substantially dismantled.

So the issue is not whether the CIA program of extreme physical coercion produced useful intelligence; it is about its net value when compared to the alternatives. And, even though the program may have some value against some prisoners, it has serious drawbacks just in the intelligence calculus, such as:

-- constraints in getting the optimal team of interrogators, since law enforcement and military experts could not take part;

-- whether the program actually produces much of the time- sensitive current intelligence that is one of its unique justifications;

-- loss of intelligence from allies who fear becoming complicit in a program they abhor and a whole set of fresh problems with coalition cooperation on intelligence operations;

-- poorer reliability of information obtained through torment;

-- possible loss of opportunities to turn some captives into more effective and even cooperative informants; and

-- problems in devising an end-game for the eventual trial or long- term disposition of the captives.

This skepticism about effectiveness links to wider concerns about how the United States should treat captured terrorists or terrorist suspects. By 2005, the raging controversy over “Abu Ghraib” or “Guantanamo” or “torture” was hurting the United States position in the world more than any other problem in our foreign policy.

As Secretary of State, Dr. Rice placed a high priority on changing the national approach to the treatment of detainees. Therefore, once the President indicated his readiness to hear alternatives, we first attempted to develop a ‘big bang’ approach, a presidential initiative that might take on the whole cluster of issues in a single announcement.

To show what such an initiative might look like and how it could be presented, and with help from Mr. Bellinger, I worked with the deputy secretary of defense, Gordon England, on a joint paper, a notional draft of the building blocks of such an initiative. Deputy Secretary England was aided by DOD’s Deputy Assistant Secretary for detainee affairs, Matt Waxman, and other staff. Our (unclassified) joint paper outlining the elements of a presidential initiative was distributed in June 2005.

However the Secretary of Defense, Donald Rumsfeld, indicated that this paper did not represent his Department’s views. He designated a different official as his deputy for these issues. The NSC staff then felt it was more appropriate for the interagency process to address the specific issues incrementally, rather than take up discussion of this broad paper.

At State we then focused much of our effort on recommending a different legal framework for evaluating the treatment of enemy captives. We felt it was very important to focus on the “CID” – cruel, inhuman, and degrading -- standard.

The administration had always conceded the applicability of the federal anti-torture statute and had repeatedly held that the CIA program did not violate it. The Justice Department’s view was authoritative for the executive branch and was immovable. The anti-torture language, as interpreted by Justice, also turned on medical assessments by CIA doctors, assessments we could not challenge. Taking these facts into account, plus the fact that “CID” was actually a stronger standard codified in three relevant treaties, we concentrated our advocacy on adoption of the “CID” guideline.

The “CID” standard was critical for two other reasons.

-- It was the standard that had been proposed by Senator John McCain and his allies, including Senator Lindsey Graham, in the “McCain Amendment.”

-- The “CID” standard, as codified in Article 3 of the Geneva Conventions, is also the relevant standard in the federal war crimes law (18 U.S.C. section 2441) which then stated (it was later amended) that any conduct constituting a violation of Article 3 was a war crime, a felony punishable by up to life imprisonment.

The administration position on all these “CID” arguments had been this: We do not have to measure our conduct against this standard because none of these treaties apply. If the standard did apply, the CIA program did not violate it. The outer defenses, a series of technical, jurisdictional arguments, had received the most attention. Samples can be seen in the OLC opinion of May 30, 2005.

Also, OLC’s view was that Geneva Common Article 3 did not apply because it was meant for civil conflict, not an international war (Article 3 was written that way because its drafters thought international wars would be covered by fuller Geneva protections; they thought civil war was the loophole they were closing with the minimum standard of Article 3.) And, although the federal war crimes statute’s reference to “conduct constituting” could be construed as stating a substantive compliance standard, the OLC did not share that view.

In 2005 State worked to persuade the rest of the government to join in developing an option that would abandon these technical defenses and accept the “CID” standard. An illustration of these arguments, as made at the time, is in an unclassified paper prepared with Mr. Bellinger’s help and circulated in July 2005.

Both deputies and principals battled over these topics on into the fall of 2005, including the issue of how the administration should deal with Senator McCain’s proposed amendment. New press reports, by Dana Priest in the Washington Post, fueled further controversy – especially in Europe.

By the end of 2005 these debates in both the executive and legislative branches did lead to real change. On December 5, as Secretary Rice left on a European trip, she formally announced on behalf of the President that the “CID” standard would govern U.S. conduct by any agency, anywhere in the world.4 On December 30 the McCain amendment (to a defense appropriations bill) was signed into law as well, as the Detainee Treatment Act of 2005.

Thus by early 2006 there was no way for the administration to avoid the need to reevaluate the CIA program against a “CID” standard. The work of the NSC deputies intensified, working to develop a comprehensive set of proposals for presidential decision about the future of the CIA program and the future of Guantanamo.

The OLC had guarded against the contingency of a substantive “CID” review in its May 30, 2005 opinion. OLC had held that, even if the standard did apply, the full CIA program -- including waterboarding – complied with it. This OLC view also meant, in effect, that the McCain amendment was a nullity; it would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted.

So, with the battle to apply the standard having been won, State then had to fight another battle over how to define its meaning. That meant coming to grips with OLC’s substantive analysis.

OLC contended that these subjective terms – like “cruel” or “humane” -- should be interpreted in light of the well developed and analogous restrictions found in American constitutional law, specifically through the interaction of the 5th, 8th, and 14th amendments to the U.S. Constitution. As OLC observed in its May 30 opinion, the Congress had conditioned its ratification of one of the “CID”-type standards, the one found in the Convention Against Torture, on its being interpreted in just this way.

Therefore, to challenge OLC’s interpretation, it was necessary to challenge the Justice Department’s interpretation of U.S. constitutional law. This was not easy, since OLC is the authoritative interpreter of such law for the executive branch of the government. Many years earlier I had worked in this area of American constitutional law. The OLC interpretation of U.S. constitutional law in this area seemed strained and indefensible. It relied on a “shocks the conscience” standard in judging interrogations but did not seem to present a fair reading of the caselaw under that standard. The OLC analysis also neglected another important line of caselaw, on conditions of confinement.

While OLC’s interpretations of other areas of law were well known to be controversial, I did not believe my colleagues had heard arguments challenging the way OLC had analyzed these constitutional rights. With the issue of “CID” definition now raised so squarely, and so important to the options being developed for the President, it seemed necessary to put that legal challenge in front of my government colleagues, citing relevant caselaw.

Further, the OLC position had implications beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then – at least in principle -- a program of this kind would pass American constitutional muster even if employed anywhere in the United States, on American citizens. Reflect on that for a moment.

I distributed my memo analyzing these legal issues to other deputies at one of our meetings, probably in February 2006. I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed. That particular request, passed along informally, did not seem proper and I ignored it. This particular legal memo has evidently been located in State’s files. It is currently being reviewed for possible declassification.

The broader arguments over the future of the CIA program went on for months, even though the old program had effectively been discontinued. There were continuing issues over whether or how to maintain a different kind of CIA program. Both principals and deputies examined proposals to bring the high-value detainees out of the ‘black sites’ and to Guantanamo where they could be brought to justice (and would give accounts of their treatment to lawyers and the Red Cross); seek legislation that would close Guantanamo; accept fully the application of Common Article 3; and find some way of maintaining a standby CIA program that would comply with legal standards. A new OLC opinion was also being developed in the spring of 2006 to deal with the different circumstances, including the McCain amendment. We at State were concerned about this development, unless OLC had reconsidered how to interpret the “CID” standard.

We nonetheless believed these issues were moving in an encouraging direction, though the administration certainly remained divided. Options for action on all the major issues had been developed for possible presidential decision and had already been discussed repeatedly by the principal officers of the government.

Then, on June 29, the U.S. Supreme Court decided Hamdan v. Rumsfeld. That decision held that Geneva Common Article 3 applied to the U.S. government’s treatment of these captives as a matter of law. Immediately, the potential exposure to criminal liability in the federal war crimes act became real.

Internal debate continued into July, culminating in several decisions by President Bush. Accepting positions that Secretary Rice had urged again and again, the President set the goal of closing the Guantanamo facility, decided to bring all the high-value detainees out of the ‘black sites’ and move them toward trial, sought legislation from the Congress that would address these developments (which became the Military Commissions Act) and defended the need for some continuing CIA program that would comply with relevant law. President Bush announced these decisions on September 6.

I left the government at the end of 2006 and returned to the University of Virginia. Both Secretary Rice and Mr. Bellinger remained deeply involved in these issues for the following two years, working for constructive change. Mr. Bellinger, in particular, also deserves credit for exhausting, patient diplomacy to carry forward the idea of working with our key allies to build common, coalition approaches on these tough problems. He has conducted several international conferences that have successfully advanced this effort.

The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one. It was a collective failure, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision . Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.

For several years our government has been fighting terrorism without using these extreme methods. We face some serious obstacles in defeating al Qaeda and its allies. We could be hit again, hit hard. But our decision to respect basic international standards does not appear to be a big hindrance in the fight. In fact, if the U.S. regains some higher ground in the wider struggle of ideas, our prospects in a long conflict will be better.

Others may disagree. They may believe that recent history, even since 2005, shows that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government, and the country, needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong.