ACLU Letter to Senate Judiciary Leadership Urging the Questioning into the National Security Council's Role in Torture

New Inspector General Report Raises Questions on the Role of the White House National Security Council; Adds to Concerns Raised by a Recent

ABC News Report on then-National Security Advisor Condoleezza Rice Chairing White House Meetings that Approved the Use of Torture

Honorable Patrick Leahy Honorable Arlen Specter

Chairman Ranking Member

Committee on the Judiciary Committee on the Judiciary

United States Senate United States Senate

Washington, D.C. 20510 Washington, D.C. 20510

June 9, 2008

Dear Chairman Leahy and Senator Specter:

The American Civil Liberties Union strongly urges you to question Justice Department Inspector General Glenn Fine, at the committee hearing tomorrow, on the role of the National Security Council, including then-National Security Advisor Condoleezza Rice and then-NSC Legal Counsel John Bellinger, in the torture issue.

It would be extraordinarily important for you to question Fine and the other witnesses on the role of the NSC and the NSC committees as the central locus of decision-making on the use of torture and abuse during interrogations. The IG report, when combined with a recent report by ABC News, raises serious questions of whether the NSC was the central and ultimate decision-maker in both authorizing the scope of interrogations tactics authorized generally and authorizing specific abusive interrogation tactics for use on specific detainees. The references in the IG report to the NSC, its committees, and its leadership provide a small window into what has been a completely hidden and ignored piece of the torture puzzle–but perhaps the most important piece of all.

The IG report on the role of the FBI in interrogations is the first government report to tie Secretary of State Rice to White House discussions on the use of torture, and the first government report to provide a detailed account of information provided to State Department Legal Adviser Bellinger on the use of torture at Guantanamo Bay. In addition, the IG report discusses aspects of the role of the National Security Council and its Principals Committee and Policy Coordinating Committee in interrogations and torture. At the time of the discussions reported in the IG report, Rice was the White House National Security Advisor and Bellinger was legal advisor to the NSC.

The IG report comes on the heels of an April 9, 2008 ABC News report that Rice had a central role in the approval of the use of torture on specific detainees as chair of the NSC Principals meetings. The ABC report is available here: http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256&page=1

ABC News reported that Rice chaired the Principals Committee that “included Vice President Cheney, Rice, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.”[1] The committee “discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency,” including “whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.” These discussions reportedly “were so detailed [that] some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.” ABC reported that “at each discussion, all the Principals present approved.” In fact, ABC reported that, even after the torture at Abu Ghraib was exposed to the public, the Principals Committee continued to approve the use of so-called “enhanced interrogation techniques,” with Rice reportedly telling the CIA: “This is your baby. Go do it.”

The ACLU urges you and Committee members to ask IG Fine to explain in more detail his findings on the role of the NSC and its committees in the authorization of interrogations and torture. Based on his written report, the IG has already stated that top officials from the Criminal Division of the Justice Department, and in at least one instance then-Attorney General Ashcroft, expressed concern with interrogation practices. The Committee should determine whether the IG’s findings match up with the ABC News report. This hearing should be the first step by the Committee to determine the role of Rice and Bellinger in the torture issue.

IG on the Role of the NSC Under Rice and Bellinger

The IG reports that, under Rice, the NSC coordinated inter-agency decisions on detainees, that Bellinger chaired its day-to-day committee, while Rice chaired the Principals Committee. Pages 16-17 of the IG report state that

many inter agency discussions on a variety of overseas detainee matters, such as developing processes for sorting detainees and later for the repatriation or release of detainees, took place in a Policy Coordinating Committee. The Policy Coordinating Committee for detainee issues was led by a National Security Council (NSC) staff member, and was composed of representatives from DOJ, the Department of State (DOS) (including members of the DOS Office of the Legal Advisor), the DOD (General Counsel’s Office and sometimes others from the Joint Chiefs), and Central Intelligence Agency (CIA). . . .By late 2001 or early 2002, there were regular (sometimes weekly)

PCC video conferences or meetings on detainee issues that were chaired by the NSC legal advisor [Bellinger]. Issues that could not be resolved at the PCC could be “bumped up” to the “Deputies” meeting . . . . If a resolution still could not be reached, an issue could be raised to the “Principals” meeting, which included the Attorney General or his designee.

The IG places the locus of decision-making on critical detainee issues at the NSC during Rice’s tenure, and describes “sometimes weekly” meetings chaired by Bellinger on detainee issues. The Committee should determine whether the use of torture, particularly as applied to specific detainees, was approved at any of these NSC meetings.

IG on Ashcroft-Rice Discussion of DOJ Concerns re: Interrogations

In the first reference ever in a government report to Rice specifically having a role in the torture issue, page 115 of the IG reports explains that DOJ concerns about the interrogation of Al-Qahtani were discussed at the highest levels of government, as it reports that

[Counsel to the head of the DOJ Criminal Division] Nahmias said that he did not know “in detail” what former Attorney General Ashcroft did with the concerns brought to him about the Al-Qahtani interrogations, but said he was ‘fairly confident that the military’s handling of AI-Qahtani’ was raised by DOJ officials at the Principals or Deputies committee meetings about GTMO. Nahmias also told the OIG that Attorney General Ashcroft spoke with someone at the NSC, most likely National Security Advisor Condoleezza Rice, about DOJ’s concerns about the approach the DOD was taking in the Al-Qahtani interrogations.

The Committee should ask the IG whether he tried to interview Rice, whether he knows of any other reports of Rice discussing interrogations or torture or abuse, and whether he could explain his understanding of Rice’s role in approving the use of specific interrogation tactics for specific detainees. These may be critical questions in determining how and why the use of torture was authorized or approved.

IG on DOJ Officials’ Reports to Bellinger and/or His NSC Committee

Without identifying him by name, but instead using his then-title of “legal advisor to the National Security Council,” pages 115-117 of the IG report explain very detailed discussions of interrogations, torture, and DOJ and FBI concerns with Bellinger and the NSC committee that he chaired. For example, pages 115-116 of the IG report states that

[Three officials from the DOJ Criminal Division called Bellinger to express] the concern that the DOD’s interrogation methods were making GTMO detainees unusable in U.S. cases. She said that during the call they discussed the difference between the FBI approach (rapport building) and the confrontational DOD approach (SERE method). . . . [T]hey told the legal advisor [Bellinger] that DOD interrogators were doing a terrible job and were doing things that the FBI agents would never do.

Similarly, on page 116, DOJ Criminal Division official David Nahmias reportedly said “that in the latter part of 2003 he told the NSC legal

advisor about techniques the MLDU Unit Chief had brought to his attention over time, such as female personnel exposing their breasts and use of ‘pig oil’ on detainees.” Moreover, also on page 116, the IG report states

[DOJ Criminal Division official] Swartz also told us that he recalled discussing interrogation issues in meetings at the NSC-chaired PCC meetings regarding the return of GTMO detainees. He said that he raised the ineffective and wrongheaded practice of the military interrogations at GTMO as a continuing theme of these PCC meetings. Swartz said that from GTMO’s inception he took the position within DOJ and in inter-agency meetings that GTMO was doing grave damage to the United States’ position internationally and in particular with regard to law enforcement and the rule of law.

The Committee should question the IG on the role of Bellinger in discussions or approval of interrogations or the use of torture or abuse, whether he knows if Bellinger provided legal advice to the NSC or its committees on any interrogations, and whether and when he ever stopped any interrogations that included torture or abuse. The Committee should also determine whether Bellinger was interviewed by the IG and whether the IG ever requested to interview Bellinger.

IG on Discussions of Legality of Torture Tactics at NSC Meeting

The IG reported that the NSC meetings, during the period when Rice and Bellinger were at NSC, included discussions of the legality of CIA interrogation techniques. Specifically, page 73 of the IG report states that

[FBI] Director Mueller’s former Chief of Staff, Daniel Levin, told the OIG that in the context of the Zubaydah interrogation, he attended a meeting at the National Security Council (NSC) at which CIA techniques were discussed. Levin stated that a DOJ Office of Legal Counsel (OLC) attorney gave advice at the meeting about the legality of CIA interrogation

techniques.

The Committee should ask IG Fine to explain his understanding of how and when legal opinions were requested from the Justice Department and whether Bellinger or any other attorneys provided legal advice on the legality of interrogation practices during any of the meetings of the NSC or its committees.

IG on the Breadth of NSC Determinations on Torture and Interrogations

Based on the IG report, the discussions at NSC meetings on interrogations and torture appear to have been very specific and also wide ranging. For example, pages 94-95 of the IG report quote the “agenda for a January 8, 2003 NSC meeting,” which it excerpts as

Interrogations of Al Qatani in Mghanistan and at GTMO have

produced little information. Since September, his interrogations have been conducted by [Defense Intelligence Agency]. Since late September, FBI, DOJ, XXXX, and some elements of DOD have been proposing XXXX Very recent and unevaluated reports suggest that he may now be providing intelligence; if so, XXXX may not be appropriate.

(with XXXX indicating redactions by the IG). Similarly, page 114 of the IG report states that

David Ayres, the former Chief of Staff to Attorney General Ashcroft, . . told us that the dispute between DOJ and FBI on one side and elements of the military on the other was the subject of “ongoing, longstanding, trench warfare in the inter agency discussions” between the FBI and the military, including at the Principals Committee, the Deputies Committee, and the line-level.

Moreover, in what appears to be a reference to a discussion at an NSC meeting, page 127 of the IG report states that former Deputy Attorney General Larry Thompson recalled a discussion of whether a detainee could be made to believe that we was going to be buried alive, as it states

the only thing he remembers along those lines [of discussions of torture] was a proposal to give a detainee the illusion that he was going to be buried alive, but he said a decision was made that DOJ would not permit that.

Clearly, the Committee should ask the IG whether he knows of other specific interrogation techniques discussed, approved, or declined at NSC meetings, and to identify specific persons at the NSC or the State Department who would have personal knowledge of these NSC proceedings.

Do Not Miss this Opportunity to Shift the Narrative on Torture to the National Security Council

The ACLU urges you to use the hearing tomorrow to shift the narrative on torture to the National Security Council. With the recent ABC News report and the IG report, it is now time to investigate the role of the National Security Council as the central locus of decision-making on the use of torture and abuse during interrogations.

The ABC News report and the references in the IG report to the NSC provide a small window into what has been a completely hidden and ignored piece of the torture puzzle—but perhaps the most important piece of all. It would be very helpful and important for the Senate Judiciary Committee to squarely address the role of the NSC—and begin to build an NSC-focused narrative on the torture issue. We are requesting that you use this hearing to shift the narrative on torture.

Up to this point, the focus of the congressional committees—including the Senate Judiciary Committee—has been the role of lawyers at the White House and Justice in trying to insulate officials from prosecution, the role of soldiers (from privates to generals) in authorizing or carrying out abusive interrogations, the role of CIA agents in torturing or rendering to torture, and the role of contractors in torture. While all of these people should be held responsible, there has been absolutely no committee focus on the central and ultimate decision-making, which appears to be at the White House, including the NSC and its Principals Committee, and not any individual soldier, lawyer, or department head.

Whatever can be done to build on the newly reported role of the NSC, would be very helpful in bringing the investigation to another level—and to the appropriate level. We will never truly get to the bottom of what happened in the authorization of torture and abuse without understanding the role of the NSC.

The ACLU greatly appreciates the work of you, the Committee, and your staff in your hearings on torture and rendition. Please do not hesitate to call us at 202-675-2308 if we can be helpful to you as you continue your oversight over this critically important issue.

Sincerely,

Caroline Fredrickson Christopher E. Anders

Director Legislative Counsel

[1] The ABC News report is consistent with the report of New York Times reporter James Risen, on pages 24-26 of his 2006 book, State of War: The Secret History of the CIA and the Bush Administration, that then-CIA Director George Tenet briefed Vice President Cheney, then-National Security Advisor Rice, then-Attorney General Aschroft, then-White House Counsel Alberto Gonzales, and “a small group of other top officials” on CIA interrogations. The ABC News report is also consistent with several references in documents obtained or at least identified in the ACLU’s Freedom of Information Act case. Several documents reference the NSC or then-National Security Advisor Rice. The involvement of Rice began very early in the Administration; in the FOIA case, the government identified, but refused to produce, a document described as: “Jan 25, 2002 Memo from Condoleeza Rice to the Vice President and others, Subject: Memorandum on the Geneva Conventions, Contains discussions between the White House and Executive Agencies.”