by Rizzo, John
I was confident that I could squelch at least the more aggressive proposed EITs, then and there, if I wanted to. Besides being the Agency’s chief legal officer, I had the experience, credibility, and influence to have made that call, and to have made it stick with the DDO, Jim Pavitt, and George Tenet. At that point, no one outside the Agency was aware that these sorts of tactics were even being contemplated—the Bush MON issued days after 9/11 authorized the capture, detention, and questioning of Al Qaeda leaders, but was silent about the means by which any of it could be carried out. I have no doubt that if I had said the word, much if not all of the EIT initiative would have quietly died before it was born. It would have been a relatively easy thing to do, actually.
But over the next day or two, as I turned things over and over in my mind, I concluded that the issue was anything but easy. We were less than six months removed from 9/11, the nation was still in the throes of fear and dread about another catastrophic attack, intelligence reports were cascading in indicating the possible imminence of such an attack, and the CIA had in its custody and control the one guy who would likely know when, where, and by whom the next attack would be carried out. And he was taunting and mocking us about it. The Agency’s singular objective, for the sake both of the country and of its own institutional existence, was to do anything and everything in its lawful power to prevent another attack from happening. At the same time, the CIA was being pilloried in Congress and the media for having been “risk averse” in the years leading up to 9/11—too unimaginative, too timid about dealing with the evil forces in the world.
With all of that churning in my head, I couldn’t shake the ultimate nightmare scenario: Another attack happens, and Zubaydah gleefully tells his CIA handlers he knew all about it and boasts that we never got him to tell us about it in time. All because at the moment of reckoning, the Agency had shied away from doing what it knew was unavoidable, what was essential, to extract that information from him. And with hundreds and perhaps thousands of Americans again lying dead on the streets or in rubble somewhere, I would know, deep down, that I was at least in part responsible. In the final analysis, I could not countenance the thought of having to live with that.
Less than a week after the CTC gave me the EIT briefing, I attended one of those “rump” sessions in George Tenet’s office after the daily five o’clock meeting. The topic was whether or not to move forward with the EIT proposal (because of its sensitivity, it was something that was never discussed at the larger meeting in those early days). I cannot remember now if George knew all the details about the proposal beforehand, but in any case the CTC went over everything again. George asked me if I thought the EITs were legal. My staff had done some hurried research on the torture statute, a federal law making it a criminal offense for “any person outside the United States acting under the color of law, to commit torture.” Thus, it covered anyone overseas affiliated with the CIA or acting on its behalf. The research didn’t provide much in the way of guidance; the definition of torture was vaguely worded (phrases like “severe mental and physical pain and suffering”), and there had never been a prosecution under the statute, even though it had been on the books for many years.
This was the moment I knew was coming. “Well,” I responded, “some of the techniques seem okay, but others are very harsh, even brutal. What I can’t do is sit here and tell you now if it legally constitutes torture. And if it does meet the torture threshold, it doesn’t matter what the justification is, even it’s being done to prevent another nine-eleven.” Everybody just looked at me. Understandably, nobody in the room found that response satisfying. Finally, someone—I believe it was the CTC chief, Jose Rodriguez—broke the silence and declared, “Our people won’t do anything that involves torture.”
“You’re damn right,” George interjected. I couldn’t tell if their reaction was based on the law or their moral dictates, but it was exactly the right response.
But by then I had decided not to just end things there. “Look,” I said, “let me take this to the Justice Department, to get something definitive, something in writing. We tell them everything we want to do, every detail about how we would conduct the EITs. And let them make the final legal call. And not just settle for a simple yes or no—we make them go on the record for every single one of the techniques, especially if it’s a yes.”
I was punting, of course, but it was a strategic punt. The Justice Department—specifically, its Office of Legal Counsel (OLC)—has always served as the final, binding arbiter inside the Executive Branch for legal interpretation of all federal statutes and the U.S. Constitution. Over the course of my career, the CIA referred proposed operational activities to the OLC dozens of times, so while dumping the EIT proposal in the OLC’s lap would dwarf all the others in terms of scope and sensitivity, it would not be a new departure for us to bring the OLC into the loop.
Above all, I wanted a written OLC memo in order to give the Agency—for lack of a better term—legal cover. Something that we could keep, and wave around if necessary, in the months and years to come, when memories would fade or be conveniently altered to tack with the shifting political winds. I didn’t know how the OLC was going to come down on the proposed EITs. What I did know was that, either way, there would be eventual fallout, somehow and someday. If the OLC were to rule out their use, and there was another attack, then at least the CIA wouldn’t have to bear the brunt of a renewed fusillade of “risk averse” accusations. If the OLC did authorize the use of EITs, and there was no second 9/11 attack, then I knew that eventually and inevitably, there would be those in some parts of the government—maybe in the Bush administration, more likely in a different administration—who would charge that the EITs were not only barbaric but lapsed into criminality. An OLC legal memorandum—the Executive Branch’s functional equivalent of a Supreme Court opinion—would protect the Agency and its people forevermore. It would be as good as gold, I figured confidently. Too confidently, as things would turn out.
Before the “rump session” broke up, George gave me the go-ahead to approach the Justice Department. Get all the lawyers involved who you think need to be involved, he instructed, but no more than absolutely necessary. Meanwhile, he said, he would let the White House know what we were up to, beginning with National Security Advisor Condi Rice.
The EITs were leaving the building. It was early April 2002. Zubaydah at that point had been in custody for two months, and the CTC was more convinced than ever that he was holding out. Time was becoming of the essence.
Right away, I called John Bellinger, legal advisor to the NSC, to broker the first discussion with the OLC. I had first met John in 1988 when he was a very young attorney whom DCI Bill Webster brought in to serve as his executive assistant. I had kept in touch with him, and I was pleased when Condi Rice named him to be her chief counsel at the beginning of the George W. Bush administration. I liked and trusted John. By now he was in his early forties and an experienced Washington lawyer, but he still retained the boyish good looks and earnestness that he had in his Webster years.
I wanted John in the loop from the beginning on the EITs for several reasons. First, since George Tenet had indicated he was going to let his boss, Condi Rice, know about the issue, I thought that as a professional courtesy John should know as well. Second, I knew that he was hurt and frustrated that the White House had cut him out of internal legal deliberations in the early days after 9/11, possibly because of tensions between him and Vice President Cheney’s chief legal advisor, David Addington (another guy I had met when he was a young lawyer at the CIA in the 1980s, and for whom I also had great respect and affection). Finally, and most important, I wanted as many lawyers as possible in the government’s national security establishment to be aware of the EITs from the get-go, to the extent that the extreme sensitivity of the matter would allow. DOJ involvement was essential to protect the Agency, but I wanted White House lawyers in the boat, too. And I knew John Bellinger, both for his own protection a
nd because he was a good soldier, would be sure to bring Addington and the White House counsel, Al Gonzales, along as well. We would all be in this together, for better or worse.
After I gave him a brief overview of the impasse with Zubaydah and the proposed interrogation techniques the CIA was considering, John quickly set up a meeting in his office on April 16 with John Yoo, the number two guy in the OLC, and Mike Chertoff, head of the Justice Department’s Criminal Division. I had known Mike for about ten years, dating back to his service in the first Bush administration. Mike was an enormously impressive guy, a brilliant legal intellect combined with an easygoing, imperturbable personality. I had met John Yoo only a couple of months before, when he was the OLC rep at White House meetings (the ones where John Bellinger had been excluded) to discuss legal issues in the immediate 9/11 aftermath. A courteous, soft-spoken Korean American in his early thirties (who looked like he could pass for half that age), Yoo had been so quietly authoritative in those earlier meetings that I mistakenly assumed he was the new chief of the OLC. Turns out he wasn’t, but he was clearly the Bush administration’s designated go-to guy in the OLC for the most important and sensitive post-9/11 legal issues.
I arrived at the meeting with two of our lawyers from the CTC. I decided not to bring the CTC officials who actually came up with the EITs, because I had no idea how the outside lawyers would react to the proposal and I didn’t want our guys getting grilled at that point. We took Bellinger, Chertoff, and Yoo down the list of EITs, as well as what our preliminary, hurried legal research had yielded. The idea was to give them—Yoo, especially—enough detail to either get the formal legal review under way or to tell us we had lost our senses and that a lot of this stuff clearly constituted torture. Which, if they had, would have been perfectly okay with me—provided the “no way” was put in writing.
Mostly, however, they just sat there, taking it all in. They asked a few follow-up questions about why the CIA had concluded such measures were necessary for Zubaydah and how a few of the techniques would actually be applied and monitored—not surprisingly, the bug in the box and the waterboarding elicited the bulk of their questions. John Yoo’s overall reaction was that he didn’t think the EITs crossed the line into torture but stressed this was only his preliminary view, pending a more thorough analysis. John Bellinger said very little; I felt sorry for him, knowing that he was by nature a very straight arrow and that this stuff must have sounded pretty gnarly to him. Mike Chertoff was courteous and collected as always, but by observing his body language as the meeting went on, I sensed he was wishing he could be somewhere—anywhere—else.
The meeting broke up with Yoo agreeing to start work on a memo. He said he would need more details about Zubaydah’s background and about the precise means by which each of the EITs would be carried out to include in his memo. That was fine with me; as far as I was concerned, the more the OLC was immersed in these often unsavory details, the better. I emphasized that we didn’t have the luxury of time to await an answer from the OLC—Zubaydah was sitting in his cell with knowledge of another imminent attack potentially in his head, and basically he was giving his interrogators the finger. That was as close as I got to advocating the EITs. I returned to the Agency and told our people that this initial meeting went about as well for the CIA as could be expected: We had not been summarily dismissed as lunatics or aspiring criminals.
Three months later, on July 13, the group assembled in Bellinger’s office again. Other than responding to OLC requests for additional, specific factual information, the Agency did not play a role in any of the OLC’s internal deliberations. Still, I didn’t have to be a CIA spy to figure out by that time that the OLC was going to conclude that most, if not all, of the proposed EITs did not violate the torture statute. The purpose of the meeting was to go through all the proposed techniques again (the CTC by then had a much more comprehensive, nuanced plan on how they would be administered) and for Yoo to give the group a status report of where the OLC was in its analysis.
There was one new face at this second meeting: Dan Levin, chief of staff to Director Bob Mueller of the FBI. The Bureau, which had participated in the initial questioning of Zubaydah in the first few weeks after his capture, had pulled its people out when it learned that the CIA interrogators were recommending a new, harsher interrogation regimen. Going into the meeting, I didn’t know how much Dan knew about the proposed EITs. But he must have known enough, because at the beginning of the meeting he calmly announced that the FBI as a matter of policy was not going to be part of any questioning of Zubaydah that did not conform to established Bureau guidelines (basically, how it treats suspects in criminal investigations). I was not surprised by Dan’s position; it was a legitimate and understandable one for the FBI to take. However, I was a bit surprised that Dan, after making that announcement, remained in the meeting, listening intently as all of the EITs were being discussed in explicit, excruciating detail.
I did take the opportunity to raise a new issue at this second meeting. I asked whether, in addition to an OLC memorandum legally authorizing the EITs, the Justice Department would be prepared to issue an advance declination of prosecution for any CIA employee involved in the EIT program whose participation was in good faith and within the terms and conditions of the memorandum. It was my idea alone, and I floated it because of my determination to secure the maximum possible legal protection for our people. At the time, I thought that the need for additional legal cover beyond the OLC memo was unlikely; little did I anticipate that less than two years later, John Yoo’s successors at the OLC would start moonwalking furiously away from a number of Yoo-authored national security legal opinions.
Anyway, when I floated that trial balloon at the meeting, the DOJ Criminal Division chief, Mike Chertoff, shot it down before it got off the ground. “Out of the question,” he said flatly. “The Justice Department doesn’t decline criminal prosecutions in advance. Period.” And that was that, as far as I was concerned. I felt a little grubby about putting Mike, who was and is a good friend to me and the Agency, on the spot like that. A few minutes later, he announced that he had to leave; it was a Saturday afternoon, and Mike said he had tickets to a Sheryl Crow outdoor concert. I am certain that was true. Still, I speculated to myself at the time that Mike would have happily accepted tickets to a Tiny Tim ukulele concert if that’s what it took to get the hell out of there.
By the end of the meeting, I knew that the OLC was going to write a memorandum giving a bright green light to the EITs. John Yoo, in his low-key way, sounded utterly convinced in the strength of his conclusions—no equivocation, no obfuscation, no loopholes. That was exactly what I thought the Agency needed in order to proceed. I spent the last two weeks in July fielding John’s final few questions as he completed work on his memo. First, he called me about one proposed EIT. “How important is that to the program?” he asked politely. “If you absolutely need to have it, the memo will take a while longer to finish because I’m not sure we can get there on that one.” I was quietly relieved—this was the EIT that I thought was the most chilling, even more than the waterboarding. I consulted with CTC management, and since getting a definitive OLC memorandum as soon as possible was the first priority, CTC management agreed not to hold things up just to try to get OLC blessing for that one.
A day or two later, John Yoo had another question. The memo he was drafting, he said, would be signed by his boss, Jay Bybee, the head of the OLC. John wanted to know whom I wanted as the CIA addressee. Honestly, I hadn’t given it any thought before then. Historically, OLC memoranda to the Agency were addressed either to the director or the general counsel. Given those alternatives, it took me only a couple of seconds to decide. I didn’t think it was necessary, and certainly not desirable, for George Tenet’s name to be on a document that was going to have hairy stuff like EITs in it. That’s what his lawyer was for. “Address it to me,” I told John.
On August 1, 2002, the eighteen-page OLC memo arrived. It was stamped T
OP SECRET, and it was circulated only to a handful of people outside the DOJ and the CIA. Save for the one abandoned option, the OLC concluded that none of the EITs that the CTC originally proposed violated the torture statute. The memo painstakingly laid out the specifics of each EIT and gave each of them explicit legal approval, taking care to lay out all terms and procedures we told the OLC the Agency would follow in administering them. As agreed, on top of the first page, in bold print, it read: “Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency.”
The Agency quickly converted the OLC memo into a detailed “guidance” cable to the black site where Zubaydah was being held, and the EITs started, with the least coercive going first. The site soon reported back that Zubaydah was still being resistant; accordingly, pursuant to the protocols that had been set up, headquarters approved use of waterboarding. Over a period of several days, the technique was applied eighty-three times (meaning each occasion where water was poured onto the cloth covering his face—not, as some critics would later charge, the number of times Zubaydah was actually strapped up for a session). Just days after the EITs began, they ended. They ended as soon as Zubaydah’s resistance ended—he had reached the stage of what our outside consultants called “learned helplessness.” He began to talk. A lot. The site reported that Zubaydah was becoming downright loquacious, in fact.
Among other revelations, Zubaydah provided information that soon led to the capture of two other Al Qaeda “big fish.” One was Ramzi bin al-Shibh, a member of Al Qaeda’s “Hamburg cell” and a close associate of several of the 9/11 hijackers, including their leader, Mohamed Atta. The other was Abd al-Rahim al-Nashiri, a key figure in the October 2000 Al Qaeda bombing of the navy warship USS Cole in the Gulf of Aden, which killed seventeen U.S. sailors. Bin al-Shibh and al-Nashiri were hardened, cold-blooded lieutenants in the Al Qaeda chain of command, the type of tough nuts not only eager to kill more Americans but also potentially knowledgeable about ongoing plots to do so.
