by Rizzo, John
So that was the big turd dumped on my desk shortly before the arrival of the new general counsel. “Who else in senior management knows about the tapes and what you want to do with them?” I asked Jose. “What about Pavitt?,” referring to his superior, Jim Pavitt, the head of CIA covert operations.
“Pavitt knows, and he’s ready to authorize the destruction, but he said I needed to get your okay,” Jose responded.
“Where is George Tenet on this?” I then asked as calmly as I could, referring to the CIA director.
“I don’t know. I haven’t spoken to him about it.”
I informed Jose that he was not to do anything with those tapes. Not then, and not until further notice. I needed to talk about this with the new general counsel.
Poor Scott Muller, I thought. Here he was coming in from private life, with a totally blank slate, and now I had to firehose him not only on a counterterrorist program of an unprecedented scope and nature, but also, by the way, on an urgent request to destroy hair-raising evidence about the program. I was hoping he wouldn’t quickly conclude he was joining an organization, and inheriting a deputy, who were completely crazy.
Thankfully, Scott proved to be a quick study and not easily rattled. He agreed that precipitously destroying the tapes was a terrible idea. At the same time, after hearing out Jose and Jim Pavitt, he came to the same conclusion I had: These were honorable men whose deep concerns about the security risks the tapes posed to the interrogators were genuine. Absent some legal requirement that the tapes had to be preserved forever, Scott and I were not prepared to simply rule out ever destroying them. As we put it to Director Tenet in late December 2002 (Scott insisted that we deliver the message together), “the question is not whether to destroy the tapes, but when.”
First, we decided, a CIA lawyer had to review every minute of the tapes, but it had to be someone with no connection to the interrogation program who could look at them with no preconceived notions or stake about what was on them. We settled on John McPherson, one of our most experienced lawyers, and the chief of the CIA’s Litigation Division. He was someone I knew to be disciplined, thorough, and unflappable. John had had no prior role, or even any knowledge of, the interrogation program, but we thought it made sense to bring him into the loop, given the certainty that the program would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come.
In the days after Christmas 2002, John traveled to the country where Zubaydah had been held and where the sole set of tapes in existence was under zealous guard in the local CIA office. By this time, Zubaydah had been moved to a new detention facility in another part of the world. But the last thing we needed was to have the damn things get somehow lost or damaged in transit.
John methodically plowed through the roughly hundred hours of videotape, each tape recording a day’s work of interrogation. Ninety-six of the videotapes were recordings of the Zubaydah sessions. (There were also recordings of the interrogation of Abd al-Rahim al-Nashiri, a key perpetrator of the October 2000 bombing of the USS Cole. He was captured in October 2002 and taped only briefly before the CTC halted all videotaping.) Much of the ninety-six tapes depicted Zubaydah simply being questioned or sitting alone in his cell, so John skimmed those parts. But he painstakingly watched the segments where EITs were being applied. He compared everything that the interrogators said and did, and everything Zubaydah said and did, with the daily reports the interrogators sent back to CIA Headquarters. He particularly focused on the waterboarding sessions.
After three days, John was done. His conclusions, contained in a written report, boiled down to this: The reports were accurate and complete, and the interrogators had done nothing to Zubaydah that was outside the guidelines or not described in the reports. But when he returned home I made sure to ask him about two things he hadn’t covered in his written findings. Were the faces of the interrogators visible? “Clear as day, and over and over again,” he replied in his usual just-the-facts way. And what about Zubaydah, when he was being waterboarded? “Up close and personal. Some crying. Some gagging. Just very unpleasant to look at.”
No wonder Jose wants them to be destroyed, I thought.
By comparison, the next item on our to-do list was easy: telling Congress about the existence of the tapes and why the Agency intended to destroy them as soon as feasible. Scott was part of the team dispatched in late January 2003 to brief Senators Pat Roberts and Jay Rockefeller, the leaders of the Senate Intelligence Committee, and their House counterparts, Porter Goss and Jane Harman. Their reactions, as Scott later reported to me, were typical of those of congressional leaders in any dicey, sensitive briefing I had ever participated in or heard about in my years at the CIA. They sat there, clearly uncomfortable, said little if anything in response to what they were being force-fed, with a “Why are you telling me this?” look frozen on their faces, and gave every impression of wanting desperately to get the hell out of the room.
In fairness, I should note that shortly thereafter Jane Harman did send a letter to the CIA expressing concern about the wisdom of destroying the tapes. Otherwise, none of the leaders ever followed up about the issue until the story leaked to the media almost five years later.
Still, even with our lawyer’s report in hand and the congressional notification box checked, Scott and I weren’t prepared to green-light the destruction. Far from it. In 2003, several internal and external investigations were under way in which the tapes were potentially relevant, and we had to see how each would play out.
Early that year, CIA inspector general John Helgerson began a review of the still-unfolding interrogation program. We told Helgerson about the tapes, and he wanted his people to look at them. Helgerson’s office was already in the midst of a major investigation into the CIA’s failure to uncover and prevent the 9/11 attacks, and the CTC was the focus of the investigation. The tension between the two offices within the CIA was palpable. What’s more, Helgerson, an Agency veteran of more than three decades, had expressed to me misgivings about the wisdom and morality of the interrogation program. But I had developed great respect for him over the years as professional and fair-minded. I don’t recall anyone expressing any objection to giving the IG access to the tapes, and a couple of Helgerson’s investigators reviewed all of them sometime in 2003. In its report on the interrogation program issued in May 2004, the Office of the Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC’s numbers on how many waterboarding sessions were conducted, did not find that any unauthorized techniques were used on Zubaydah.
The IG report was sent to the two intelligence committees shortly after its completion in May 2004 for review by the committees’ leadership. None of the four leaders would ever ask to look at the tapes. None of them ever inquired about their status, even though the CIA had put them on notice more than a year earlier that the Agency intended to destroy the tapes at some point. None of them ever asked anything about the tapes. Not, that is, until the shit hit the fan years later, courtesy of the New York Times.
Concurrently with the OIG review, the presidentially mandated 9/11 Commission got under way. Its charter was markedly different from the OIG review: It was conducting a comprehensive postmortem on the events, and the U.S. Government’s actions, in the years leading up to the 9/11 attacks. It was not the 9/11 Commission’s mandate to look into the measures the government took, such as the interrogation program, in response to the attacks.
The 565-page final report the commission issued in late 2004 relied heavily on the CIA-prepared accounts of Abu Zubaydah and several other key Al Qaeda figures (including the self-proclaimed 9/11 mastermind, Khalid Sheikh Mohammed [KSM]) the CIA had in its custody by 2003. The commission staff, led by a very aggressive former federal prosecutor named Dieter Snell, pressed the Agency hard for access to the detainees so they could pose their own questions to them. I could understand why; after all, our interrogators were
most focused on Al Qaeda plans and actions post-9/11, not before.
Nonetheless, the Agency strongly opposed the idea, and we didn’t budge. First, the foreign location of the “black site” was a zealously guarded secret; outside the Agency, fewer than a dozen people in the entire government knew where it was (indeed, to this day it is one of the very few details about the interrogation program that remains classified). The foreign government hosts, in allowing the CIA to build its detention facility, insisted that only CIA personnel could have access to it; they themselves stayed away. Second, our psychologists and analysts studying the detainees argued against introducing any new interlocutors on the scene beyond the handful already there. They feared that diabolical but cagey manipulators like Zubaydah and KSM would seize the opportunity to posture, prevaricate, and rupture the flow of the ongoing interrogations.
Finally, the 9/11 Commission leadership grudgingly agreed to a compromise: Their staffers could submit their questions in writing and the CIA interrogators would sprinkle them into their regular sessions with the detainees as unobtrusively as possible.
For months, the commission also bombarded the Agency with a relentless volley of requests for thousands of documents, and the CIA provided mostly all of them. We scoured all of the requests, provided in writing and in specific detail by the commission staff. They knew exactly what they wanted, and they took pains to spell it out. They never asked us if we had any videotapes of the detainees. If they had, we would have told them the truth.
Instead of parsing literally every word in each of the commission’s requests, should we have taken the initiative to tell the commission about the existence of the videotapes? In hindsight, I think the answer is clearly “Yes.”
Volunteering their existence would have prompted the commission to ask to look at them. But then we could have just said “No.” Just as we did when they wanted access to the detainees, and just as we did when the commission wanted a briefing on the EIT program. Both times the commission backed down.
The commission’s co-chairs, Lee Hamilton and Tom Kean, were serious, substantial men. They were consistently fair and trustworthy in their dealings with the Agency. We could have told them, and them alone, about the tapes and why we couldn’t give the commission access to them. We didn’t. Big mistake, as things turned out.
The third matter to come along in 2003 that argued against destroying the tapes was the criminal prosecution of Zacarias Moussaoui, a malignant but spectacularly inept Al Qaeda operative who had been arrested in Minneapolis about a month before 9/11. Moussaoui, who proved to be as unhinged as Zubaydah but nowhere near as capable, had managed to draw attention to himself by seeking lessons in Texas and Minnesota flight training schools and by loudly insisting on instructions on how to fly a 747, but not how to take off or land one. The 9/11 Commission would ultimately conclude that he had been dispatched to the United States by Al Qaeda as part of the original roster of hijackers. For two years, he had been sitting in jail awaiting trial for his role in the conspiracy, and the case was now beginning in federal district court in Alexandria, Virginia. Although Zubaydah’s interrogation did not appear to yield anything that would bear on Moussaoui’s case, there was no way of knowing which way the frequently chaotic proceedings would go. We weren’t going to do anything that might sabotage the only 9/11 criminal case the government had going.
And so, with all these investigative balls in the air, as 2003 turned to 2004, it fell to me to tell Jose and his people that any decision to destroy the tapes would have to wait.
“How much longer?” they would periodically ask, politely but persistently.
“I don’t know,” I would respond each time, “but don’t hold your breath.” I had spent my entire career hand-holding anxious CIA operatives who were upset or frustrated by one thing or another, and I thought I had gotten pretty good at the art of assuaging. Looking back at that period now, however, I clearly misjudged the depth of angst and impatience.
And it was only going to get worse in the months to follow.
By mid-2004, the OIG had completed its report, and Helgerson told me that as far as he was concerned, the fate of the tapes was now a “policy call” for senior CIA management. The 9/11 Commission had also wrapped up its investigation, and we still hadn’t seen, in their many requests for materials, anything that implicated the tapes. The Moussaoui prosecution was still careering along, however, with the defendant shouting daily epithets in court at the judge and the prosecutors when he wasn’t trying to fire his capable but besieged court-appointed lawyers.
But that was no longer the only roadblock to destroying the tapes. During that summer, George Tenet resigned as CIA director. George had known about the existence of the tapes—and Jose’s strong desire to destroy them—for about as long as I did. My sense had always been that he would have been happy to see the issue somehow go away, but that he didn’t want his fingerprints on any decision to destroy them. Jim Pavitt and Scott Muller also left the Agency about the same time. None of the departures had anything directly to do with the simmering internal controversy over the tapes: Tenet was leaving after seven grueling years as director, the second-longest tenure ever; Pavitt was retiring after a long and successful career in our clandestine service; and Muller was simply exhausted and burned out after eighteen months in a job that, post-9/11, was way more politically pressurized than he, or anyone else, for that matter, could have imagined.
Still, I couldn’t help suspecting that none of them was unhappy about not being in the chain of command when the legal impediments were gone and a decision had to be made whether or not to destroy the tapes. Tenet, Pavitt, and Muller were no longer at the CIA, but the tapes were.
About a month before he left, Scott got the White House into the act. The catalyst was the Iraq/Abu Ghraib scandal, which had exploded into the nation’s consciousness several weeks earlier with the release of repulsive photographs of U.S. military prison guards tormenting Iraqis in their custody. The photographs sparked a national outrage, and the White House was in major political damage-control mode.
Early in the Bush administration, a process was established whereby Scott Muller or I, or both of us, would travel to the White House every month to meet with the president’s counsel, Alberto Gonzales; the vice president’s counsel, David Addington; and the national security advisor’s counsel, John Bellinger. The meetings were held in Gonzales’s West Wing office, and they were intended as a way for us to discreetly alert and update the White House about CIA legal matters that weren’t already being covered in the larger interagency lawyers’ group meetings the White House was frequently convening post-9/11. When the scheduled June 2004 meeting took place, I had a scheduling conflict, so Scott took with him Bob Eatinger, our senior lawyer for counterterrorism matters.
As far as I know, no one in the White House at that time had been told about the existence of the tapes. It was not a matter of hiding them. Instead, our thinking at the CIA was that the time was not yet ripe: The tapes were being safeguarded thousands of miles away, their destruction was on indefinite hold, and there was nothing we were asking the White House to do. In short, up to that point we didn’t think the White House had a “need to know,” the classic litmus test in the intelligence business.
Abu Ghraib changed that calculation, even though that debacle had little to do with the CIA. As Scott later explained it, John Bellinger, in the context of a discussion of the Abu Ghraib photos, asked him an open-ended question in the meeting, along the lines of “the Agency doesn’t take any pictures of its detainees, does it?” I suspect he was assuming/hoping that the question was rhetorical, but Scott decided on the spot, correctly in my view, that the time had come to tell Gonzales, Addington, and Bellinger not only that the tapes existed, but also that the CIA planned to destroy them at some point. Their reaction was immediate and unanimous: “You plan to do what?”
The fact was that we CIA lawyers would never have taken the ultimate step to destroy the tapes
without first clearing it with the White House. Not as long as I had anything to say about it. Here, the White House lawyers weighed in sooner than they really needed to, but their reaction wasn’t exactly surprising. “Don’t do anything with those tapes without coming back to us first,” they admonished Scott.
“No problems there, fella,” I told Scott when he relayed that message back to me. Then, a few weeks later, he resigned. I was acting general counsel. Again.
Porter Goss was confirmed as the new CIA director in the fall of 2004. A longtime congressman from Florida, he gave up a seat in a safe district to take the DCI job. Porter had been a young CIA officer for a number of years in the ’60s before resigning to get into local politics. He was always interested in intelligence issues, and during his final years in Congress he chaired the House Permanent Select Committee on Intelligence (HPSCI).
In our first meeting I went through a list of matters that I thought he would need to focus on soon. It wasn’t a long list, but the status of the tapes was on it. Porter, unlike his predecessor, is not a very demonstrative man, but when I mentioned the tapes he clearly seemed taken aback. “The tapes are still around?” he asked with quiet incredulity. “I thought you guys told us you were going to destroy them.”
