by Rizzo, John
On November 21, 2002, the American Bar Association’s Standing Committee on Law and National Security was holding its annual conference in the ballroom of a large Washington, D.C., hotel. With the 9/11 attacks still fresh in everyone’s hearts and minds, the audience of four hundred or so was the largest ever for the event. As I had done in previous years and would continue to do in the years to follow, I agreed to serve on a panel, with my counterparts at State, the DOD, and the FBI, to give the audience the views of the Executive Branch.
The EITs were the elephant in the ballroom that only I could see. So when the time came for each panelist to offer parting comments, I allowed myself to say this: “We at CIA have to be careful what we wish for. The Agency has gotten all the authorities it has requested, but I wonder what will happen if something goes awry. The pendulum is bound to swing back, and today’s era of political consensus for increased intelligence authorities will come to an end sometime in the future. It will be good for the country when the terrorist threat is perceived to be less, but it could be bad for CIA.”
It was far from a Cassandra-like warning. But for 2002, it wasn’t all that far off the mark, either.
CHAPTER 12
Trouble on the EIT Front, and the Valerie Plame Diversion (2003–2004)
My November 2002 appearance at the ABA conference was a milestone of sorts in my post-9/11 career. It coincided with turning over the reins of the OGC to Scott Muller, who had just been confirmed by the Senate as CIA general counsel. About fifty years old, he was an experienced and highly successful litigator who specialized in high-profile white-collar criminal defense cases. Sad to say, that was a highly desirable skill set for the top CIA lawyer at that point in the Agency’s history.
I had first met Scott during the vetting process a few months earlier, when the White House sent his name, along with those of two other outside lawyers, over to the Agency for consideration. Director Tenet asked John Moseman, his chief of staff; Buzzy Krongard, the executive director; John Brennan, Tenet’s close aide; and me to interview and rank the candidates. We met with each of the three and agreed Scott was clearly the best choice. He came across as a mature, nonideological, low-key guy with a sense of humor. I thought he was a perfect fit for the Agency. He volunteered to us that he considered his greatest strength was as a “crisis manager,” and we all thought that neatly summarized the CIA’s posture in the year since 9/11.
Tenet met Scott and agreed with our assessment. The White House then submitted Scott’s name to the Senate. Scott’s Senate confirmation hearing in October had gone smoothly and was largely uneventful, save for some remarks made at the outset of the hearing by the Intelligence Committee chairman, Bob Graham of Florida, a Democrat. The hearing was open to the public, so Graham’s remarks were obviously meant to be a message not just for Scott, but for the Agency and the outside world. Here is what he said:
“I know from my work on this committee for the past ten years that lawyers at the CIA sometimes have displayed a risk aversion in the advice they give their clients. Unfortunately, we are not living in times in which lawyers can say no to an operation just to play it safe. We need excellent, aggressive lawyers who give sound, accurate legal advice, not lawyers who say no to an otherwise legal operation just because it is easier to put on the brakes. . . .”
I was not at the hearing, but when I read Graham’s remarks the next day, I had a number of reactions. The “risk aversion” charges were not new—a bipartisan bevy of Congress members had been hurling them at the CIA ever since the 9/11 attacks. The only difference here was that the charges for the first time were being specifically leveled at Agency lawyers, and I have to admit that personally they stung. I imagined giving my own rebuttal to Graham: Hey, Senator, if we lawyers were risk-averse during the ’90s, maybe it was because all during that decade your colleagues on the Hill and the media were loudly and mercilessly castigating and hounding our clients at the CIA for consorting with thugs and lowlifes, when all they were trying to do was perform their difficult and dangerous jobs. And we were supposed to counsel them to do risky and aggressive things in that sort of toxic environment?
But I belatedly realized that maybe I was missing the larger and more important message Graham was implicitly sending. Only a few weeks before, he had been one of only a small handful of members of Congress who were informed in detail about the new EIT program. I allowed myself to think that Graham was trying to signal to the Agency, and Agency lawyers, that risky and unprecedented tactics such as EITs would not only be tolerated, but also encouraged, in the post-9/11 world. It was okay, I thought the top Democrat on the Senate Intelligence Committee was trying to say. And as I entered 2003 with a new general counsel at the helm, that thought assuaged the vague sense of foreboding I had, at least for a while.
Instead, my predominant feeling was a profound sense of relief. I had been acting general counsel for an extraordinarily eventful and stressful year, but now I could step aside for the new guy. I figured Scott, who seemed excited to take the job, would stay for at least the remainder of Bush’s first term, if not longer. Of course, I was prepared to stay by his side and help him in any way I could, just as I had done for his predecessor GCs. But I would no longer have to shoulder the burden—and the pressure—of making the final legal calls for the Agency. I knew that the tumultuous times at Langley would continue, but at least it wouldn’t be me in the hot seat anymore. Not for a long time, if ever again. That’s what I figured.
In March 2003, the war against the Saddam Hussein regime in Iraq began. Among many other things, it would consume a vast amount of the Agency’s attention and resources for years to come. And, of course, it would embroil the CIA in a seemingly never-ending torrent of criticism, both from Congress and other quarters in the Bush administration. The CIA came in for relentless pounding over its abject failure—there is no other way to put it—to accurately assess whether or not Saddam possessed weapons of mass destruction. From my parochial perspective, the quixotic search for WMD, and for that matter the toppling of the Iraqi regime and the chaos that followed, was an anomaly. It was one of the very few major public controversies ensnaring the CIA during my career that did not heavily involve lawyers. Instead, it was largely about the expertise and integrity of the Agency’s analytical side.
My most vivid recollection about any of these swirling controversies is a small vignette in which I was merely an observer. The single most supposedly authoritative human source about the existence of WMD was an Iraqi expatriate living in Germany, who was given the code name Curveball. Although Curveball was handled exclusively by the German intelligence service, the stream of information he provided was regularly passed to the Agency, which judged it to be highly credible. Accordingly, the CIA relied on it heavily in its written analytical assessments, which were passed on to the highest-level Bush administration policy makers, including Secretary of State Powell, who cited Curveball’s reporting extensively in his dramatic presentation at the U.N. General Assembly in February 2003, making the case for the invasion of Iraq.
By early 2004, however, it was becoming increasingly apparent that a more apt code name for Curveball would be Foul Ball. His story and his supposed expertise as an insider to the Iraq WMD program were not holding up to scrutiny. He turned out to be a fake, and his story was a fabrication. It was an embarrassing, high-profile debacle for the Agency, and George Tenet felt it more than anyone: After all, Powell had insisted that George sit behind him, in full view of a world television audience, as Powell delivered his U.N. speech with its heavy reliance on Curveball’s reporting. One day, as the Curveball story was collapsing, I looked up from my desk and unexpectedly saw George, coatless and with his tie askew, shuffling into my office. Without a word, he flopped onto my couch, sprawled on his back, and stared at the ceiling. After a few seconds, he finally said something, more to himself than to me.
“I am so fucked,” George muttered quietly.
All that said, in the early months
of the Iraq conflict I did manage to get sucked into one of its most baroque and longest-running sideshows: a July 2003 article by the syndicated columnist Robert Novak publicly “outing” the covert CIA employee Valerie Plame, wife of the former ambassador Joseph Wilson, a highly vocal critic of the Bush administration’s policies on Iraq.
At the time this minidrama began, Plame was a midlevel officer in the Counterproliferation Division, which was part of the Directorate of Operations. Although she had been an Agency officer, she was so obscure that I didn’t ever recall hearing her name, much less meeting her.
Nonetheless, “outing” an undercover officer is never a trivial thing, no matter where that officer is located in the hierarchy. Over the years, CIA covert personnel have been attacked and sometimes murdered as a result of being compromised like that. So, a few days after the Novak column appeared, I dutifully had our office send a “crimes report” to the Justice Department, notifying it of the leak. The OGC sends dozens of such letters to Justice every year, since hardly a day goes by without some piece of classified CIA information popping up somewhere in the media. (Contrary to media speculation at the time, Tenet did not instruct the OGC to make the crimes report. It is obligatory for the Agency to report a possible crime to the DOJ; a CIA director cannot dictate whether or not to file a report. As it happened, I told George after the fact that we had made the report.) And, on the scale of such things, the Plame leak, while deplorable, was negligible in terms of harm to the nation’s security. I fully expected Justice to treat it the way it treated 99 percent of our crimes reports, which is to say, to do little or nothing.
Based on the assessment we made, the Plame leak appeared to be a most unlikely candidate for a full-blown Justice/FBI investigation. There was no evidence indicating that any CIA source or operation—or Plame herself, for that matter—was placed in jeopardy as a result of the “outing.” And it appeared that dozens if not hundreds of people knew she was an Agency employee. (To be sure, that was not Plame’s fault—indeed, the ensuing investigation would show that she was always remarkably careful and discreet about maintaining her “cover,” even with her close friends on the outside. For that, she deserves considerable credit—being that disciplined is an arduous task for an undercover operative.)
Accordingly, I confidently predicted to Scott Muller and George Tenet at the time of the referral that there was no way Justice/FBI would devote time and resources to pursue an investigation. Not after having witnessed Justice over the years repeatedly take passes on truly damaging leaks that had far smaller pools of potential suspects.
Surely, I figured, a marginally harmful leak such as the Plame disclosure wouldn’t be investigated and prosecuted simply because of the partisan political pressure being applied at the time by opponents of Bush administration policies in Iraq. The crimes reporting process had never been trivialized and distorted like that in all my years at the CIA. The entire episode would quickly fade away, I sagely concluded.
Well, nobody’s perfect.
Patrick Fitzgerald, a noted crime buster who was a longtime friend of mine dating from his days as the lead prosecutor in pre-9/11 terrorism cases, was appointed by the DOJ as a special prosecutor with unfettered power. Pat carried out his mandate with his trademark thoroughness and zeal, doggedly pursuing an investigation that would last four years. It finally culminated in the conviction of Lewis “Scooter” Libby, chief aide to Vice President Cheney, for lying to the FBI and a grand jury. Mind you, Libby was not found guilty of leaking Plame’s name—it turned out that Pat learned who those culprits were early on. For reasons that remain unclear to me, they never faced prosecution. In the end, therefore, the Plame case was hardly a compelling cautionary tale for future would-be leakers. And, at least insofar as we at the CIA were concerned, hardly worth the thousands of hours Agency personnel (including two of our lawyers working on the case full-time) had to devote to supporting the four-year investigation and trial of a guy who wasn’t even the leaker.
To this day, I have not met Valerie Plame. Of those who knew and worked with her, the consensus was that she was a capable, dedicated officer who was involuntarily catapulted into a political maelstrom not of her own making and then manipulated and exploited by her publicity-seeking, preening blowhard of a husband. Suddenly robbed of her anonymity, she did her best for a couple of years to try to cope with balancing her dual loyalties to her job and to her husband.
But it was a struggle. I remember at one point Plame pleaded with the Agency to provide her with round-the-clock security protection, citing the potential threat her unwanted notoriety posed to her and her family. What I determined was that there was no credible information of any kind indicating she or anyone in her family was in any sort of danger. So I reluctantly concluded that the Agency could not lawfully expend the considerable amount of taxpayer money that would be required to shield her from a nonexistent threat. I was told that Plame was hurt and upset by that decision, and those were sentiments I fully understood. I hoped that for her part she understood that her case for needing protection was not helped by her husband’s relentless pursuit of an ever-higher public profile, including, I am told, his inveigling her to pose with him in a ludicrous Vanity Fair photo shoot in which she wore Garbo-like sunglasses and a scarf.
Valerie Plame ultimately decided to resign from the CIA in 2007. In many ways, it was a sad ending to the saga, with Plame having to give up a productive career after being made a pawn by people who cared more about their own agendas than about her. Of course, in the process she also became a full-fledged celebrity and a fixture on the lecture circuit, with a best-selling memoir (over which I had to wrangle with her lawyer during the classification review process) that became a major, albeit somewhat fictionalized, motion picture. In the final analysis, then, it might be argued that her “outing” turned out to be the best thing that ever happened to Valerie Plame.
However, for those of us at the CIA who had to live with her case, the entire episode was little more than a seemingly interminable distraction and a colossal waste of time and money.
Meanwhile, the EIT program continued apace. But as 2003 turned into 2004, the shock and fear generated by the 9/11 attacks were becoming an ever more distant memory for the country. There had been no second wave of attacks against the homeland, which was of course a blessed thing. At the same time, inevitably, the passage of time and the absence of another attack resulted in the political pendulum starting to swing back, with the message to the CIA migrating from “protect us at all costs” to “what the hell have you guys been up to, anyway?”
As I write this, with all vestiges of the EIT program dead and buried for years courtesy of the Obama administration, the postmortem debate about its utility and morality rages on. Books devoted to both sides of the debate continue to be churned out, including “insider” accounts by former government officials such as the CIA’s Jose Rodriguez and the FBI’s Ali Soufan. In his 2012 memoir, Rodriguez, the former CTC chief and DDO in the immediate post-9/11 years, forcefully defends the necessity and value of the EITs, spelling out in detail the number of plots thwarted, the thousands of intelligence reports generated, and the fact that the universally praised, seminal 2004 report of the 9/11 Commission relied so heavily, and placed such credibility, on what CIA detainees such as the waterboarded Abu Zubaydah and KSM had to say about the 9/11 attacks and other plots. Soufan, a seasoned FBI interrogator who participated in the pre-EIT questioning of Abu Zubaydah in 2002, argues just as vehemently in his 2011 book, The Black Banners, that the EITs were unnecessary and feckless.
For my money, the best “outsider” perspective on the early years of the EIT program was Marc Thiessen’s 2010 best-selling book, Courting Disaster. Thiessen, a conservative columnist and a former speechwriter in the Bush White House, obviously came at the subject from that ideological perspective, but his exhaustively researched book makes what I consider the most authoritative case yet presented on the necessity, morality, and effectivenes
s of the program.
Nevertheless, I suspect that the heated, emotional debate about the EIT program will continue indefinitely even as the program itself recedes into history, with both sides hurling charges—and statistics about intelligence reports produced and attacks averted—at each other. I will not rehash those same arguments in any great detail here. Instead, let me offer a somewhat different perspective on why I became convinced during those first couple of years of the program that it was the necessary and right thing to do. It comes down to something pretty basic: Every, and I mean every, career CIA employee who was involved in it believed in it wholeheartedly and unswervingly.
Why was that the most decisive factor for me? Because after twenty-five years at the Agency, I had a pretty good handle on the culture and psyche of the career CIA workforce. In the 2002–2004 time frame, it was what it always had been in my experience—a polyglot group of professionals from all walks of life and from all across the spectrum in terms of their political persuasions. Like me, many of the career employees who played a role in the EIT program had been around Langley long enough to understand that we were all going down a road paved with peril for us personally and professionally. At all the meetings I would attend with them about the program as it was developed and implemented—the hard-bitten DO operatives, the studious DI analysts, the earnest if sometimes nerdy scientists and psychologists—I would observe them closely, watching for any hint of doubt or skepticism about the wisdom of the EITs or the results they were achieving in terms of significant, reliable, otherwise unobtainable intelligence about Al Qaeda. I knew that some of them harbored views on the liberal side of the political spectrum and were not generally fond of the policies of the Bush administration. And, as I say, they were all savvy enough to recognize that being connected to the EIT program was not destined to be career-enhancing for them in the long run. Yet none of these career professionals ever wavered—it’s not that they were rabid cheerleaders for the program, but they were staunchly, if stoically, convinced that EITs were proving to be an indispensable element to discovering and thwarting a reprise of the 9/11 attacks.
