Philip Zelikow is the fomer executive director of the 9/11 Commission. Before returning to the University of Virginia, he served most recently as counselor of the United States Department of State. Among his academic degrees is a law degree from the University of Houston Law Center. Professor Zelikow writes in connection with John Hinderaker’s December 24 post “An odd controversy gets odder.” Professor Zelikow comments:
I just had an opportunity to read the post in which you were puzzled by the 9/11 Commission leaders’ dismay at learning about the CIA’s possession of recordings of the interrogations of Zubaydah and Nashiri. I appreciate your care in going over the December 13 report prepared for Tom Kean and Lee Hamilton that was later disclosed to the press.
In your post you emphasized that the report was not sufficiently clear about whether the CIA had transcripts and whether we asked for them.
As my report recounts, and as you mentioned in your blog, the Commission staff at first was uncertain about the transcripts issue too, and was respectful of the intelligence equities. So we started by asking for all reports or intelligence information from the interrogations. As our report explains, we were then surprised that the reports did not have many of the details we sought. We then followed up, as our report mentions, with discussions to understand completely what other information the CIA had in its possession from the interrogations. We were told there were no transcripts, only the operational cables that were then turned into the reports we had received. As the reporting process was detailed to us, we understood that the operational cables had no additional substantive information that would help with our questions.
This may then help you see the context for our next wave of requests, in October 2003. Since we were told there were no transcripts, and we had received detailed descriptions of the reporting process without any mention of recordings, we were pressing for any information the CIA had in any form, from anyone who had it, that could shed light on dozens of questions we had about the context of the interrogations and the reported statements we were analyzing. CIA told us: Give us your questions; we’ll give you everything we have that can answer them.
So we posed, in writing, two lengthy sets of questions in October 2003. The second of these, the one I sent directly to the CIA general counsel, requested any information that the CIA had that was responsive to numerous questions about the context of the interrogations, how they were conducted, the demeanor of the detainees, and so on. The report you have has clauses describing the topic headings in my memorandum, and there were various questions posed underneath each of these headings.
Our disappointment with the responses to those sets of questions then led us to the conclusion that we had no option, if we were to find answers to these questions, except to question the detainees ourselves, and the interrogators too, in at least the cases of the seven detainees most important to our investigation (which included Abu Zubaydah). The report to Kean and Hamilton describes what then occurred.
I have been careful not to accuse anyone of committing crimes. But it is important to understand that, under the applicable federal law, this is not a parlor game of “twenty questions.” Under the applicable federal criminal law, our written and very detailed requests established certain issues as being material to our investigation. Officials were obliged by law to provide any responsive information in their possession (or withhold with a claim of privilege) and they were obligated not to conceal, knowingly, any fact related to such material issues. In addition to the various discussions at staff levels, Lee Hamilton pointedly reminded DCI Tenet and his chief aides of the breadth of their obligation at a meeting, one occasioned by these very issues, on December 23, 2003.
As I said earlier, I appreciate your conscientious effort to puzzle over these papers and regret that the document you found was not clearer on its face. The memo was prepared for Kean and Hamilton, who were familiar with the problem.
White Burkett Miller Professor
Department of History
University of Virginia
PAUL adds: It was kind of Professor Zeilkow to respond in detail to John’s post.
As a general matter, I should add that I’m not a fan of either the 9/11 Commission’s recommendations or the “rush to judgment” style in which they were adopted. Moreover, I don’t think the Commission’s need to find out what happened during detainee interviews was very compelling. As I understand it, the Commission’s task was to find out why our intelligence services didn’t do a better job of anticipating 9/11 (something of a fool’s errand) and to recommend how these services might do a better job in the future.
The detainee interviews may have had some relevance to this mission, but not much. Can anyone imagine the Commission issuing a different set of recommendations based on what a particular terrorist said during an interview? Did the Commision state in its report that its recommendations were subject to change on that basis? The CIA’s interest in destroying the tapes — protecting the identity of its interrogators, protecting the secrecy of the interrogations, etc. — seems at least as weighty as the Commission’s need to review them.
If, however, members of the CIA or the executive branch violated any legal obligation by not turning over the tapes to the Commission or by not honestly answering its questions, then none of this matters. Government officials, like everyone else, must meet their legal obligations or face the consequences.
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