by Rizzo, John
Since the OLC memo we had gotten a couple of months before was specifically addressed to the EITs being applied only to Zubaydah, I quickly got confirmation from the DOJ that the conclusions reached by the OLC on its August 1 memo pertaining to Zubaydah would also cover similarly high-value—and resistant—Al Qaeda prisoners. And so the EITs began with al-Nashiri and bin al-Shibh. But it’s important to note here that the EITs were never intended to be applied in a cookie-cutter, “one size fits all” way. For example, Agency psychologists and interrogators at the site assessed that the ultimate EIT—waterboarding—was necessary for al-Nashiri, but not for bin al-Shibh. And even with al-Nashiri, the waterboarding was stopped almost as soon as it started—for all his thug bravado, al-Nashiri’s resistance to cooperation ended after only a few doses, in marked contrast to the more academically inclined psychopath Zubaydah. (By the way, the “bug in the box” EIT was never actually employed on any of the CIA detainees.)
A few months later, in March 2003, the biggest Al Qaeda fish of all—with the exception of bin Laden himself or his second in command, Ayman al-Zawahiri—was caught in the CIA’s net. It was Khalid Sheikh Mohammed (KSM), the undisputed (least of all by him) mastermind of the 9/11 attacks and proud personal butcher of the Wall Street Journal reporter Daniel Pearl. It had been less than a year since anyone in the intelligence community even knew he existed. Certainly, no other Al Qaeda detainee, before or since, came close to him in terms of cunning and cold-blooded evil. In the years since, I have sometimes wondered what would have happened if KSM, rather than Zubaydah, had been the CIA’s first high-value prisoner. My guess is that the now-infamous EITs the Agency originally conceived would have been even more brutal and relentless.
As it happened, however, the CIA made do with what it already had in its kit bag. They were used on KSM, all doughy five feet three of him, again and again for weeks. Each night back at headquarters, I would hear the reports and cringe to myself—there was waterboarding and then more waterboarding. A CIA IG report would later put the number of times at 183, and while there would be heated debate in the succeeding years over how that number was arrived at, I knew that no matter how you cut it, this guy was withstanding simulated drowning longer than I would have ever imagined humanly sustainable. All the while, KSM was cryptically responding “Soon you will know” to demands for information about future attacks on the homeland. As the days dragged on, I increasingly became worried that one of two results was inevitable: 1) KSM was going to die before telling us about the next catastrophic attack, and when the attack happened blame would be laid at the Agency’s feet for killing him before he could tell us; or 2) he would weather the EITs, not tell us about the next attack, and when the attack happened blame would be laid at the Agency’s feet for not getting the information out of him. Either way, it was an unthinkable scenario.
Finally, his interrogators reported back that his resistance had been broken. He was prepared to talk, probably not entirely fully and honestly, but enough to justify stopping the EITs. What EIT ultimately brought him to “learned helplessness”? The interrogators seemed divided, but when I later talked to the one that I knew longest and best, a guy I knew to be a total straight shooter, he had no doubts. “It was the sleep deprivation,” he told me as we smoked cigars during a lunchtime walk around headquarters one day. “We figured out KSM would rather die than not be able to sleep. Besides, he also figured out after a while that we weren’t going to waterboard him to death.”
KSM was the third detainee in CIA custody to be waterboarded. That was in the spring of 2003. Overall, the Agency kept a cumulative total of about one hundred prisoners in its black sites in the seven years the EITs were in existence, from 2002 until early 2009. KSM was the last one waterboarded. Again, in succeeding years outside groups would claim otherwise. If that were true, I am convinced I would have known about it. And I didn’t.
Meanwhile, during these early months of the EIT program, a small, select group of senior government policymakers were being brought into the loop. On White House orders, the OLC had provided its August 1 memorandum only to the CIA and the White House. Nonetheless, the existence of the memo and the details of the EITs were soon briefed to the National Security Council Principals Committee, which, as the term implies, consists of the most senior of the president’s national security and foreign policy advisors. Every administration has had such a group, although the official name and membership have sometimes varied over the years.
In the first term of the Bush administration, the Principals Committee was chaired by National Security Advisor Condi Rice. She would sit at the head of the table in the cramped White House Situation Room, with the seal of the president of the United States appearing over her head on the dark-paneled wall behind her. Arrayed on either side of the table would be the members: Secretary of State Colin Powell, Secretary of Defense Don Rumsfeld, Chairman of the Joint Chiefs of Staff Dick Myers (and later Pete Pace), Attorney General John Ashcroft, White House Chief of Staff Andy Card, White House Counsel Al Gonzales, and DCI Tenet. Vice President Cheney occasionally would sit in on the sessions in which the EITs were discussed (otherwise, his chief of staff, Scooter Libby, or his counsel, David Addington, would attend). Each member would be allowed to bring what was referred to as a “second,” meaning an aide who would sit behind his boss, crunched into the small chairs along the walls of the Situation Room. As the designated briefer for the EITs, George Tenet was allowed to bring a couple of additional aides, which always included his deputy, John McLaughlin, and frequently included me and a senior CTC official.
As a backbencher, I found it fascinating to observe the body language and dynamics of the various principals at these sessions—held every month or so—as George would give his detailed updates on the specifics of the EITs and how they were being administered first to Zubaydah, then al-Nashiri and bin al-Shibh, and finally KSM. Some, such as Card and Myers, would sit there stoically. Ashcroft was mostly quiet except for emphasizing repeatedly that the EITs were lawful. Rumsfeld was notable more for his frequent, conspicuous absences during these sessions—he kept trying to get his chief intelligence deputy, Steve Cambone, to attend in his place but was always rebuffed by the White House. It was quickly apparent that Rumsfeld didn’t want to get his fingerprints anywhere near the EITs. But the most interesting figure of all at these meetings was Colin Powell. Now, there was a man giving off an unmistakable vibe of being there out of a sense of duty but intensely uncomfortable about it. At the end of each EIT update session, Powell would bolt out of the Situation Room as fast as he could.
It was also interesting, and illuminating, to listen to how the various principals reacted to the descriptions of the various EITs. Understandably, George Tenet spent more time talking about waterboarding than anything else. Yet I don’t recall there ever being much in the way of resistance from any of his colleagues around the table about waterboarding, or the way it had been used extensively on Zubaydah and KSM. What instead sticks in my mind is how Condi Rice, for instance, seemed troubled by the fact that the detainees were required to be nude when undergoing some of the EITs. Colin Powell, on the other hand, seemed to view sleep deprivation as the most grueling of all the techniques.
The one senior U.S. Government national security official during this time—from August 2002 through 2003—who I believe was not knowledgeable about the EITs was President Bush himself. He was not present at any of the Principals Committee meetings (in my experience over the years, it was rare for any president to attend such sessions), and none of the principals at any of the EIT sessions during this period ever alluded to the president knowing anything about them, or expressing the view that he needed to be told. I also never heard anything to that effect in the numerous other separate discussions on EITs we had with individual principals. As late as 2005, I relayed to Steve Hadley, who had succeeded Rice as national security advisor, a recommendation by the CIA inspector general that President Bush be briefed on what the EITs were.
Hadley, an experienced foreign-policy hand and a careful, disciplined lawyer, responded evenly: “That recommendation will be taken under advisement.” I did not hear anything further on the subject.
Therefore, I was startled, to say the least, when I read Decision Points, President Bush’s 2010 memoir. In it, Bush not only forthrightly defended the use and effectiveness of EITs but put himself in the middle of their conception and employment on Zubaydah and KSM. On pages 168 through 171, he wrote the following:
[In late March 2002] CIA experts drew up a list of interrogation techniques that differed from those Zubaydah had successfully resisted. George [Tenet] assured me all interrogations would be performed by experienced intelligence professionals who had undergone extensive training. Medical personnel would be on-site to guarantee that the detainee was not physically or mentally harmed. . . .
I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. . . .
[On March 1, 2003,] George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Shaikh Mohammed. . . . “Damn right,” I said.
All of this was news to me. And some of it didn’t compute. The president reviewed the EITs to be used on Zubaydah in advance? When would that have been? The Agency began them just a couple of days after we got the go-ahead memo from the OLC. As for the two techniques he said he vetoed, I have no idea what they could have been. Finally, there would have been no need to consult with the president in advance before using EITs on KSM—we had already gotten the okay from Justice that all the EITs it had green-lit for use on Zubaydah could also be applied to KSM.
The president’s narrative might have made more sense to me if he had attributed it to conversations he had with one of his close White House advisors—say, Condi Rice, Al Gonzales, even the vice president. After all, we at the CIA necessarily would not have been made privy to private, offline discussions inside the West Wing. But Bush didn’t assert that in his memoir—instead, he said he had the conversations in question with George Tenet. And that’s what I found most puzzling of all. I was in daily contact with George in the run-up to the authorization to the EITs and their use on Zubaydah and the other detainees in the 2002–2003 time frame. All during that time, George had said nothing about any conversations he had with the president about EITs, much less any instructions or approvals coming from Bush. It simply didn’t seem conceivable that George wouldn’t have passed something like that on to those of us who were running the program.
The EIT program in general, and the waterboarding in particular, were—and continue to be—probably the most contentious issues growing out of the Bush administration’s response to the 9/11 attacks. Moreover, EITs played a predominant role in the last seven years of my own career and in many ways were most responsible for my suddenly becoming a public, controversial figure in those final few years. So I was simply curious as hell—just what was President Bush talking about? Had I been missing something this important all along?
I decided to contact George Tenet after reading Bush’s book. We have remained in touch over the years, and I consider him a close and trusted friend. In November 2010, I sent him an e-mail in which I posed the question as directly as I could: Were Bush’s assertions accurate? George’s response was just as direct: He did not recall ever briefing Bush on any of the specific EITs.
I am left baffled by all this. I view President Bush as a man of great integrity, and I will always be grateful to him for nominating me in 2006 for the position of CIA general counsel. Still, the account in his memoir about his conversations with George Tenet about EITs is specific and vivid, and yet George doesn’t remember any of it. How could George—how could anyone, for that matter—ever forget having conversations with the president of the United States about something like that? It’s impossible. And, as I indicated earlier, there are aspects of the Bush version of events that just don’t add up. So, in the end, I have to conclude that the account in Bush’s memoir simply is wrong.
In the final analysis, I find the episode perplexing but nonetheless admirable on Bush’s part, odd as that sounds. My experience over the years is that a president, and those closest around him, instinctively try to put some distance between him and risky, politically controversial covert actions the CIA is carrying out, even when those actions are being conducted pursuant to a specific authorization by the president. This phenomenon is sometimes referred to as “plausible deniability.” In his memoir, however, Bush does the exact opposite: He squarely puts himself up to his neck in the creation and implementation of the most contentious counterterrorist program in the post-9/11 era when, in fact, he wasn’t.
Now, that’s a stand-up guy.
And then there’s the role of Congress in the EIT saga. The secret directive to the CIA that Bush issued a few days after 9/11 was provided promptly to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. When the EIT program was created in 2002, the White House instructed the CIA to restrict knowledge of the program to the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees—the so-called Gang of 8. As always, the CIA dutifully followed White House orders, so for the next four years we told only those select members about the EIT program as it developed and expanded.
The Gang of 8 notification process is explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of “extraordinary sensitivity.” Thus, it was an entirely lawful way to proceed. Nonetheless, I have come to believe that in retrospect, that approach would prove to be one of the biggest strategic blunders the Bush White House made in the post-9/11 era, and I and other Agency veterans also deserve blame for not pushing back at the White House orders much earlier and harder than we did.
The CTC chief, Jose Rodriguez, led the delegation that first briefed the Gang of 8 in early September 2002, shortly after use of EITs began on Zubaydah (the briefing would have been earlier had Congress not been away on summer recess). In his 2012 memoir Hard Measures, Jose recounted (and contemporaneous notes by the other CIA representatives, including one of our CTC lawyers, confirmed) how all of the approved EITs were described in detail and how no one on the congressional side expressed any objection to any of them, including waterboarding. Follow-up briefings were given in February 2003 and thereafter, still with not a word of opposition from the Gang of 8.
Flash forward six years—seemingly a lifetime away from the shock and fear spawned by 9/11—to when the newly inaugurated President Obama publicly rescinded and repudiated the EIT program, and for good measure declassified all the EITs. Several members of the erstwhile Gang of 8 seemed to have amnesia about having been briefed at the creation of the program. On the other hand, Nancy Pelosi (ranking minority member of HPSCI in 2002 and by now House Speaker) was anything but wishy-washy: She went before the cameras in May 2009 and insisted strenuously, with a tight grimace and darting eyes, that all the CIA had ever—ever—told her in previous years was that waterboarding had been “considered” as an interrogation tactic, not that it would ever be used.
On its face, her claim was preposterous (the CIA would brief the Hill leadership on something that it was not doing?), and even the new CIA director, Leon Panetta, a staunch Democrat and friend of Pelosi’s, couldn’t let that stand. He released the contemporaneous notes of the 2002–2003 briefings, and Pelosi had to back down. Sort of. Her story then evolved into, well, maybe she knew all along about waterboarding and the rest that were going on, but she had always opposed EITs and, alas, was powerless to do anything about them. All of which was also total, demonstrable bunk. And then, flustered and in full retreat, she refused to say any more about the subject publicly, except to blithely observe, without a hint of irony, that “the CIA lies all the time.” A classy final touch, that, casually slandering an entire i
nstitution and workforce. (Not missing a beat, she would continue to receive the personal classified intelligence updates every House Speaker gets, always being gracious and complimentary to her CIA briefers.)
But my main point is this: Pelosi’s prevarications, however reprehensible, in hindsight were hardly unforeseeable. We—meaning the White House and those of us in the CIA who had been around long enough to know better—were naïve to expect that a handful of politicians would remain stalwart forever after being forced to sit and listen to the dicey and disagreeable details of the EIT program in sporadic, off-the-record sessions. The decision in 2002 to limit congressional knowledge of the EITs to the Gang of 8 and to stick to that position for four long years—as the prevailing political winds were increasingly howling in the other direction—was foolish and feckless. For our part, we in the CIA leadership should have insisted at the outset that all members of the intelligence committees be apprised of all the gory details all along the way, on the record, in closed congressional proceedings. To allow all of our congressional overseers—to compel them, really—to take a stand and either endorse the program or stop it in its tracks.
Looking back, it is my biggest regret about the role I played in the EIT program.
But I am getting ahead of myself. By the end of 2002, the EIT program was newly up and running, and all of us involved in it at the CIA were convinced that it was the only way to go. With the August 1 OLC memo to me in hand, I thought that we had strong, enduring legal protection against any charges that the program amounted to torture. But even then, in those halcyon days when the public and the politicians were firmly on the side of protecting the country at all costs against a second wave of Al Qaeda attacks, I couldn’t entirely suppress a vague sense of foreboding about what starting down the EIT road might ultimately mean to the Agency and to me.
