That initial answer from the Office of Legal Counsel at Justice necessarily involved a degree of subjective judgment, and that judgment was likely to be affected by the political environment, the degree of public fear of terrorist attack, and the beliefs of the individual lawyers concerned. Unsurprisingly, two years later, after some key personnel changes, the Office of Legal Counsel’s practical interpretations of the law changed with them.
For CIA, the situation was doubly difficult. We were charged with preventing the next mass terrorist attack by al-Qa’ida. We knew by early 2005 that information we had extracted from the high-value detainees—including through use, in some cases, of aggressive interrogations—had prevented several such attacks at different stages of maturity. Of the approximately one hundred individuals interrogated by CIA during the seven-year life of the program, both before and after my tenure at CTC, only a minority were ever administered enhanced interrogation techniques; a majority of the captives willingly cooperated without resort to any extreme measures. Still, the techniques had been highly effective against a number of hard cases. With the fear of attack constantly hanging over our heads, no one wanted to be in the position of having to live with the thought that we had failed to employ all the legal means at our disposal to protect the country. Again, the question was: Where is the legal red line?
When I took over CTC, we no longer had a definitive answer. As my lawyers in CTC explained it, the Department of Justice had backed off its earlier interpretation of what was permissible under international law, but had not updated its specific judgment regarding whether use of the enhanced interrogation techniques was legal. Instead, they had given us a dodge: The law against torture would not apply in our case, because any signatory to the international convention was only responsible for actions taking place on its territory. CIA was operating outside U.S. territory, and so was not subject to the law. If that sounds flimsy, it’s because it was. We insisted on a new legal judgment on the techniques to replace the one Justice had rescinded—one we could rely upon even if we were operating on U.S. territory. In the spring of 2005, we finally got the supportive legal guidance we wanted, but it would provide only fleeting comfort.
If I was facing enormous difficulties outside CIA, I wasn’t getting much love at home, either. My relationship with Jose Rodriquez, the hastily elevated head of the Clandestine Service, had gotten off to a shaky start and had deteriorated steadily from there. By late spring 2005 the rift was an open secret, and the subject of many rumors.
As best I could intuit the problem, Rodriguez wanted me to run the center as he had done. His occasional questions of me usually involved the minutia of day-to-day operations, and that was where he wanted me to be focused. He couldn’t understand why I was wasting so much of my time with the White House, with Congress, and with the Pentagon, to say nothing of my misbegotten strategic planning. In his time at CTC, he had avoided all of that.
Of course, I inevitably spent much of my time engaged on operational issues, especially those where we needed help from outside CTC. In the last half of 2005 alone, after my lengthy trip to Pakistan and Afghanistan, I traveled to Tampa and Doha, Qatar, for operational coordination with CENTCOM; twice to East Africa, where Somalia was becoming a worry; once to Europe for coordination with allies; and once to the Middle East. Ultimately, operations drove everything we did.
But I found my boss’s attitude incomprehensible. Our operations were going extremely well. My senior operations managers were terrific—certainly at least as capable as I was. I didn’t have the time to duplicate their efforts—not when our analysts were being hijacked, the government wouldn’t devote the resources necessary to conduct a proper drone war, operations were being thwarted by poor relations with the Pentagon, my workforce lacked support, parts of my organization were working at cross-purposes and, worst of all, the legal basis of our detention and interrogation program was under multipronged attack. My ops guys didn’t need kibitzing; they needed the support that only their director could give them. Rodriguez’s views, though never directly expressed to me, were clear enough; I just didn’t have time for them. In deference to his interests, I stopped going to his morning meetings, and sent my chief of operations, instead.
From the start of 2005, Steve Hadley, newly promoted to national security advisor after serving four years as deputy to Condoleezza Rice, understood that aspects of CIA’s detention program were simply not sustainable. Already there were detainees in CIA’s prisons who had long since outlived their usefulness as intelligence sources. We couldn’t keep such individuals indefinitely; sooner or later they would have to come to light, be declared to the International Committee of the Red Cross, and be given some form of due process, whether they ultimately went to trial or not. As I said repeatedly in interagency meetings in those days, we couldn’t simply “disappear” people. If we couldn’t risk returning them to their home countries where they might well be set free, where could we send them? They would have to surface somewhere. When that happened, the U.S. government would have to say something publicly about where they had come from and where they had been since their capture, which in many cases had been publicized. Word about their interrogations would also get out. We would need something to say about that as well. There would be a huge “public diplomacy” aspect to what we came to refer to as the “end game.”
The fate of CIA’s detainees was also linked to Guantánamo. Public and congressional pressure was increasing to shut the place down and to adjudicate the status of inmates there—to release those who could be safely released, to repatriate those who could not be tried in court but whose governments could be trusted to incarcerate or monitor them, and to prosecute those who could be tried by military commissions. Throughout the early fall of 2005, I participated in endless meetings at the working level, as well as at the Deputies’ Committee and Principals’ Committee levels, all dealing with the “end game.” There was much thrashing about, but nothing ever seemed to get resolved. Everything was dependent upon everything else, and the Department of Defense seemed reluctant to do anything. DoD had supposedly been preparing for years to hold military commission trials. They continued to go through the motions, but nothing ever happened. It was mysterious: Secretary Rumsfeld was a fierce taskmaster. If he’d wanted results, surely he’d have gotten them.
Early on in the interagency process, I was approached by Steve Cambone, the under secretary of defense for intelligence. Recognizing that our two agencies were the keys to the “end game,” he proposed that he and I hold a series of meetings off-line to work out a strategy for “black site” detainees; if we could agree, he reasoned, the other agencies would fall in line. Steve was not much trusted in my building because of his close association with Rumsfeld. It was true he could be very clever in advancing his secretary’s agenda; that was his job. But I always found Cambone to be decent and reasonable. He soon came to realize that there was no alternative but eventually to move CIA’s detainees to Guantánamo, and he helped to work through a strategy designed to get us there. I believe he worked in good faith to convince Secretary Rumsfeld to agree to it. He would fail to deliver his boss in the end, but I’m sure it was not for want of trying.
When, in November 2005, Dana Priest of The Washington Post came out with a series of articles exposing the fact that CIA was interrogating terrorist suspects in a string of “black sites” in foreign locations, the pressure on us increased exponentially. The reaction of those hosting these secret prisons was about what one would expect. Their cooperation was based on our ability to maintain the secret. Even if they themselves had not been exposed—and of course they could not be sure how accurate the Washington Post stories were about others—the fact that the program had come to light at all undermined their confidence. Several asked us to pack up and leave as quickly as possible. This further ratcheted up the pressure to decrease our detainee population and shift those we still needed to hold elsewhere. Again Guantánamo came into the conversation.
Still Rumsfeld refused. He was trying to decrease the population at Gitmo, he pointed out, not increase it. Left unsaid was that he was already tarred with Abu Ghraib. He saw no reason to be connected to CIA prisons and interrogations as well. If CIA had a problem, he saw no reason why he should have to take responsibility for it.
If all that were not bad enough, another large shadow loomed on the horizon that fall, threatening the legal underpinnings of the CIA interrogation program so recently won in June. Senator John McCain of Arizona was one of the most powerful and influential members of the Republican Party. As a former prisoner of war and survivor of brutal mistreatment at the hands of the North Vietnamese, he also spoke with unparalleled moral authority on the issue of torture. He was loudly uncomfortable with what he understood to be administration policy on interrogation, and indicated he would introduce new legislation to deal with it. It wasn’t clear at first if McCain was solely concerned with the military, but even if so, it appeared that CIA’s interrogations might be an unintended victim of whatever legislation he introduced.
Again, Vice President Cheney took the lead. Convinced that CTC’s use of enhanced interrogation techniques was critical to national security, he set out to persuade McCain to provide a “carve-out” that would exempt CIA from his legislation. I thought it a very bad idea, and said so in a meeting with Goss and the acting general counsel. The legislation simply banned “cruel, inhuman or degrading treatment or punishment.” That was already the law. Did we want exemption from that? The point of potential disagreement did not regard the principle, but the way it was interpreted. Nonetheless, Cheney and Goss met alone with the Arizona senator to brief him on our program. After sitting in on Goss’s “pre-brief,” I felt uncomfortable. He seemed not to have a good grasp of the details of the program; but in the end it didn’t matter. From Goss’s account of the meeting, Senator McCain was not prepared to listen to anything he had to say anyway. No one was going to convince him that our methods didn’t amount to torture. His legislation passed the Senate in October as an amendment to a supplemental military appropriations bill.
Things got worse from there. Expecting to get greater support in the House, the National Security Council continued negotiations with McCain’s people to win protections from future prosecution for CIA personnel who were acting in good faith on the basis of Justice Department legal approvals. It became obvious that McCain didn’t trust Bush’s Justice Department to interpret the law, and so would not provide CIA employees such assurances. He wanted them to be potentially subject to prosecution by a future administration if it decided, after the fact, that Justice’s legal rulings had been incorrect. On the other hand, he wouldn’t specify what CIA would be permitted to do; instead, he chose to leave them in doubt as to their legal standing if they went beyond what the military was permitted. Now we were in an even deeper hole: these discussions would become part of the “legislative history” of McCain’s bill, and determine how its intent would be interpreted by the courts.
Confronted with the twin threats of exposure of the black sites and House passage of the McCain Amendment, the interagency process kicked into high gear. Beginning in early November, J. D. Crouch, the deputy national security advisor, chaired a feverish series of so-called “Tiger Team” meetings, comprised of senior representatives from State, Justice, Defense, and CIA. Our charge was to work out the “end game” for terrorist suspects in both CIA and DoD custody, and to explore how the CIA interrogation program might be adapted and saved in light of McCain. Tiger Team recommendations would go up for consideration by the Principals’ Committee. I and my senior lawyer, Bob Eatinger, represented CIA. As the late-evening meetings churned on, I had a growing sense of despair. In mid-December, Rumsfeld was still adamant that he would not accept CIA detainees at Guantánamo, and it was even clearer that there would be no protections for CIA in McCain’s pending legislation. His amendment limited the military strictly to interrogation methods prescribed in the Army Field Manual, which did not allow anything more aggressive than various forms of the “good cop, bad cop” routine. It did not address CIA explicitly, but provided no exception for it, either. CIA officers could follow Justice Department guidance, but would do so at their peril. The pressure from all sides was becoming suffocating.
At a meeting in the White House Situation Room on December 20, again chaired by Crouch, he reminded me that it was CIA that had made such a strong case for the importance of the EITs. For the safety of the country, we would have to carry on. “Can’t you convince the interrogators to continue?” he asked.
“I probably could,” I said. “These people are highly dedicated. I’m sure they would continue if I let them. But I won’t. If McCain passes, they will have no legal protections. If I allow them to continue under those circumstances, where is the leadership in that?” I told him that if the bill passed, we would do nothing beyond what was permitted in the Army Field Manual.
I was out on a limb, and he knew it. He looked at me steadily. “Is that the CIA position?”
Though we hadn’t discussed it—we were barely speaking—I felt confident that Rodriguez would back me up; he was all about protecting our people. But I honestly didn’t know where Goss stood on this. “It’s the DO [Directorate of Operations] position,” I said. I hoped to get Goss’s support as well, but in the end it really wasn’t going to matter. Without appropriate legal protections for our officers, we weren’t going to continue as though McCain hadn’t happened.
Back at Langley, I reported to Goss on what I’d told the NSC and the interagency. “You did?” He sounded pleased. By his account he’d been excusing himself at the White House for some time, protesting that he couldn’t order us to move forward with coercive interrogations if we refused. “This isn’t the military,” he’d said. Now, to his relief, I was substantiating his warnings.
On December 23, Andrew Card, the president’s chief of staff, paid a visit to CTC on short notice. I gave him a walking tour of our Global Response Center, and then ushered him into a small conference room to meet with the managers of our detainee program. Card thanked them and stressed the importance of what they were doing for the safety of Americans.
Finally, he said, “I’d like to know if there is anything I can say that would increase your confidence. Is there anything you would like to hear from me? You should know that I begin every day the same way: I walk into the Oval Office, and say, ‘Pardon me, Mr. President.’ ” There was a moment of confused silence. His words rolled out on the table, as though daring someone to pick them up.
Quick calculations ran through my head. Was Card suggesting what I thought? Could the White House really provide preemptive pardons to protect against something a future administration might do? Surely the president would only do it at the end of his term. But a promise now to do something then would be worthless; could one get such a commitment in writing? And was it even worth exploring? This sounded like the pardon former President Ford had provided to Nixon. How would that look? Wouldn’t it appear like a tacit admission that we were violating the law? Anyway, how could we trust these people? If they were really concerned about protecting us, wouldn’t they be standing up more forcefully to McCain? Instead, they were claiming confidently that a compromise would be reached, when in fact there was none in sight. No, I concluded; we wouldn’t go down that road.
Card and I chatted amiably as I walked him out to his waiting car. Nothing about pardons was ever said again.
In the end, my suspicions were confirmed. The opportunity for a last-second reprieve in the House came and went a few days later. Duncan L. Hunter, the Republican chairman of the House Armed Services Committee, threatened to withhold the supplemental Defense Appropriations bill from a floor vote unless he received firm assurances from the intelligence community that passage of the McCain Amendment would not harm counterterrorism efforts. The administration wanted that legislation; the appropriate assurances were arranged. The bill, with the McCain Amendment attached, passed
on December 30, 2005. The White House had caved, disingenuously claiming success in its negotiations. The president was even photographed shaking hands with McCain.
* * *
I believe it is a reasonable view, perhaps the correct one, to argue that Americans should never engage in any form of coercive or abusive interrogation. It seems to me that those making that moral argument also need to be prepared to follow their principles in all circumstances, and to accept a higher degree of risk, even if it means their fellow citizens may be killed, in order to uphold them. Unless they’re willing to say that—and in my experience, very few are—I have trouble taking them seriously.
For me and others, this was not an academic question. It involved hard decisions, with real consequences either way. When I headed CTC, I did not consider what we were doing to be torture; nor do I think so now. As I reflect, putting myself where I was then, knowing what I did about our past success, having the concerns about imminent attack that we all did, and with the legal assurances we had, I still come out in the same place I did then.
CIA has borne a considerable degree of opprobrium for its part in what once was called the global “War on Terror.” It still does today, especially in the context of targeted killings. But it seems to me that if people have problems with policy, they should bring their concerns to the policymakers; and if they disagree over legal interpretation, they should complain to the U.S. attorney general. That doesn’t absolve CIA people from personal responsibility. Individuals in CIA, as elsewhere, can and should make decisions for themselves about whether they feel morally justified in doing as they are ordered, irrespective of its legality; they should decline, as individuals, to follow those orders, and even to resign, if they do not. But it is manifestly not in the interest of the American people to foster an institutional climate that encourages their national intelligence service to decide for itself which of its legal orders it will follow, and to decline to carry out those assignments it deems risky or inconvenient to itself. I had seen this tendency earlier in my career, when some had ducked the dicey effort to overthrow Saddam Hussein. I had disapproved of their behavior then, and I disapprove of it now. If we are not careful, institutional insubordination will be the unwanted legacy of our collective moral ambiguity on the difficult measures which have been taken, and are still being taken now, to deal with vicious, committed non-state actors who hide in the shadows, and plot to do us harm.
88 Days to Kandahar: A CIA Diary Page 44
