by Rizzo, John
Renditions were carried out long before 9/11 ever happened. Remember the daring and fabled operation by Israeli commandos in 1960 to snatch Adolf Eichmann out of his hiding place in South America to stand trial in Israel for his Nazi war crimes? That was a rendition. Mir Aimal Kansi, who randomly murdered three CIA employees outside the front gate of Agency headquarters in 1993, was later rendered to the United States from Pakistan to face homicide charges; he was eventually convicted and executed in Virginia. A year later, the notorious international terrorist “Carlos the Jackal” was rendered from Sudan to stand trial in France—an action, notably, that was later upheld by the European Court of Human Rights.
Rendition is such a generally recognized, accepted practice that in January 2009 the incoming Obama administration, even as it was publicly repudiating the Bush administration’s detention and interrogation policies, carefully preserved its authority to conduct renditions. Indeed, two days after taking office, in the same executive order abolishing enhanced interrogation techniques and ordering the closure of the Guantánamo detention facility in a year’s time, President Obama endorsed the use of rendition. Except that his staff couldn’t bring itself to actually put the word into the order, apparently so as to avoid the perceived stigma it acquired during the Bush years. Instead of “renditions,” the term chosen by the Obama people was “short-term transfers.”
It does sound much more pleasant.
Which brings me back to Levin’s question at the hearing: “Have detainees been rendered by us—including the CIA—to countries that use torture?” The short answer—the one I declined to give in a public setting—is “Yes.”
To be sure, with Levin peering balefully down at me from the dais, I was briefly tempted, in the three seconds or so I had to ponder my response, to just say “No” and leave it at that. Certainly, if Levin instead had asked something along the lines of “Have detainees been rendered by us—including the CIA—with the intent, or with the knowledge, that they will be tortured?” then I would have immediately and unequivocally answered “No.” But, unfortunately, that wasn’t his question.
At the same time, in the moment and on the spot, I couldn’t simply say “Yes,” either, even though that was the accurate one-word answer. My refusal to say “Yes” was not done out of fear about how that answer would play publicly (although it is easy to visualize what the next day’s headlines would have been: “Top CIA Lawyer, Contradicting Bush, Acknowledges U.S. Link to Foreign Torture Practices”). I held back because while a “Yes” would have been the short, simple answer, the truth here is not that short or simple. And certainly not conducive to being told in the public political theater in which I found myself.
Here is an expurgated version of what I wanted to explain to Levin in the closed session. Post-9/11, most of the renditions the CIA conducted—and they were in the low double figures, not the crazy numbers of hundreds or even thousands some clueless pundits and human rights activists have alleged—involved transporting known, active terrorists to or between countries in the Middle East. Although these countries are close allies with the United States in combating Al Qaeda, most cannot be accurately categorized as Jeffersonian democracies. They are, and have always been, authoritarian regimes that have never hesitated to jail and, yes, brutalize those they consider enemies of the state. But since our First Amendment guarantees of free speech and assembly have not to date been embraced universally by political strongmen in that ever-turbulent part of the world, many of those rounded up are more likely political dissidents, not dangerous threats.
It may not be morally edifying, and it shouldn’t be surprising, but that’s the reality about the governments the United States must work with closely in the post-9/11 era. And when the CIA grabs a terrorist who is facing charges in one of those countries, or is a native of the country, that’s the most logical place for him to be rendered—and turned over to the custody of the host government. Even if that government has a track record of human rights abuses.
But is this the CIA turning a cynical, cold-blooded blind eye, or worse yet, “outsourcing torture” (another lurid canard coined after 9/11)? No.
And it’s not just because that would be illegal, although it would be, and as the CIA’s lawyer that naturally would be at the top of my personal list of reasons not to do it. But pesky legalities aside, people at the CIA just don’t operate that way. They want no part of torture—it has never been countenanced, much less facilitated. Not once in my Agency career, before or after 9/11, has the CIA ever considered torture an acceptable or even unavoidable by-product of carrying out the mission.
Besides, there’s no percentage in it. If history and experience have taught Agency careerists anything, it’s that no secret stays secret forever. Especially “bad” secrets—ones that show CIA officers hiding something, covering something up, or maybe just looking the other way when something bad is about to happen. “Bad” secrets have had an increasingly short shelf life during the course of my time at the Agency, a time that has coincided with a sixfold increase in the number of CIA lawyers, the exponential growth of congressional oversight, a more aggressive and independent office of CIA inspector general, and the inexorable rise in the number of leaks to the media. And when those kinds of secrets come to light, as they always do, there’s hell to pay for the institution and for the people involved.
That’s why, as much out of self-protection as anything else, the Agency for some time has had in place rules that apply when it renders someone into the hands of a foreign government with a history of human rights abuses. Our local chief makes it clear to his or her counterpart—usually the head of the country’s intelligence or security service—that there is to be no abuse of the guy. None, no matter what. No winks and nods, and the assurances our chief gets on that score must be credible. And, in most cases, there are ways of checking: It may be that the CIA has a “unilateral” penetration of the service that privately reports back about how the prisoner is being treated; or, if prudence warrants, our local chief will insist on personal monitoring and visits.
Is this a fail-safe system? Of course not. But in my experience it has been largely effective, and that’s because the system has teeth. If the Agency discovers that the foreign government has done something that violates the prisoner’s human rights, our local chief confronts his counterpart. (When the incriminating information has come from a “unilateral,” the confrontation has to be scripted and choreographed more carefully to protect our source’s identity, but it is done.) The first time, there is a stern warning to knock it off. If necessary, the warning is underscored by a senior CIA or White House official to the political leadership of the foreign country. If it happens again, the sanctions become tangible: the suspension of funds, equipment, or training or, if the abuse is persistent, the cutoff of the entire CIA relationship.
For these foreign services, who in most cases are utterly dependent on the CIA’s largesse and cachet, risking the relationship has proven to be a price simply too high to pay. Not so for the Agency; I know of at least four occasions, pre- and post-9/11, when the Agency took action to either suspend, or end outright, its relationship with a foreign service that had violated its commitments regarding human rights issues. So it is not an empty threat, and our counterparts know it.
The fundamental point here is that the people rendered by the CIA into a foreign government’s custody tend to be treated with kid gloves, relatively speaking, not the iron fist the government may normally employ with its own prisoners. Indeed, based on my experience and observation, the far greater risk is that the individuals the Agency has rendered post-9/11 will be prematurely set free to cause mayhem again.
The Bush and Obama administrations faced a similar conundrum in figuring out what to do with the dozens of Yemeni nationals still, at this writing, being held at the Guantánamo Bay detention facility that the Obama administration has been so desperate to empty and close. These are people who can’t be prosecuted in U.S. militar
y tribunals or civilian courts because of a paucity of usable evidence but who nonetheless are still too dangerous to simply let go. Remanding them to the custody of the Yemeni government has always been the most obvious and preferred option—until it became evident what happened to a previous batch of Yemenis held at Gitmo that the Bush administration in its last year sent home, based on a pledge by the Yemeni government to hold them or, at a minimum, keep close tabs on their activities. Instead, most were held only briefly and then set scot-free to return to the battlefield against the United States in Afghanistan and elsewhere. So the remaining Yemenis in Gitmo have languished, with the Obama administration understandably frozen by fear of the potential nightmare scenario playing out—the next catastrophic attack on the homeland being carried out by someone it once had under wraps but stood by and let walk out the door.
In the post-9/11 world, that’s the truly scary thing about a rendition: not that the guy will be sent to a country that will torture him, but that he’ll be sent to a country that lets him run amok.
All of this was rattling around in my head in the seconds after Levin asked, “Have detainees been rendered by us—including the CIA—to countries that use torture?” A “No” response would have been literally false, and a “Yes” response would have been grossly misleading. Perhaps it was the lawyer in me, but in that instant, I made the decision to demur on answering. Best to leave something this sensitive and complex to the closed session, I concluded. Levin deserved a full answer, chapter and verse, with names and examples. And I would be able to give it to him there. Or so I thought.
Next after Levin in the Democrats’ batting order was Ron Wyden from Oregon. Having blown off my request for a prehearing courtesy call, this would be the first time he ever spoke to me.
Wyden quickly went on the offensive. Following a line of questioning begun by Rockefeller and Levin, he began by hammering away at me on the August 1, 2002, unclassified legal analysis, authored by John Yoo, which a new set of Bush appointees at the OLC had withdrawn and publicly repudiated by late 2004 because of its clearly gratuitous, over-the-top rhetoric regarding the legal threshold for torture: “equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.” (When the Obama administration in 2009 publicly released all the Bush-era OLC memos on interrogation, this memo came to be known as “Bybee I.” Its classified analogue was “Bybee II.” They were named after the man who signed both memos, Jay Bybee, head of the OLC in 2002. For ease of reference, that’s how I’ll refer to them here.)
Bybee II—the top-secret memo addressed to me, which specifically described each of the EITs and the careful, regulated manner in which we proposed to carry them out—contained none of Bybee I’s incendiary language. And Bybee II had been reviewed and endorsed intact by the new Bush OLC team in 2004. All of which was known to Wyden and his colleagues, since all members of the Intelligence Committee had been given access to Bybee II months before my hearing (it first had been provided to the committee leadership back in 2004).
But Bybee II—like the EIT program itself—was still highly classified as I sat there in the open hearing. I couldn’t talk about it. And so I struggled, and Wyden pounced.
WYDEN:
Just so we’re clear on this Bybee Amendment [sic], because I know a number of colleagues have asked about it, the key part of that memo is the question of inflicting physical pain and it not being torture unless the pain is equivalent to organ failure and the related circumstances. Do you think you should have objected at that time?
ME:
I honestly—I can’t say I should have objected at the time. I read the opinion at the time. As I say, I want to emphasize that there was a companion opinion issued to us that did not contain that sort of language and that we really relied on. But no, I can’t honestly sit here today and say I should have objected.
WYDEN:
I think that’s unfortunate, because it seems to me that language, on a very straightforward reading, is over the line. And that’s what I think all of us wanted to hear, is that you wish you had objected.
In the years since, I have frequently thought about this exchange with Wyden, since he would repeatedly later cite it publicly as the primary reason he decided to take the lead role in blocking my nomination. Could I have answered it in a better way? Perhaps. Could I have answered it in a different way, to say that I should have objected to Bybee I? No.
Suppose I had acknowledged to Wyden, in front of the TV cameras, “Yes, Senator, in retrospect I should have objected to Bybee One because of that language in it that you quoted.” In the first place, it would have done me no good. Wyden was a foe who could not be appeased. Almost certainly, he would have jumped all over me: “So, only now are you telling us this, five years later? Why didn’t you object when it would have made a difference? You stood by quietly and let stand an opinion on the torture statute, of all things, that you thought was seriously flawed? Is this one of those ‘confirmation conversions’ we sometimes get up here?” All of which would have been obvious, logical questions.
But there was another, far more important reason I couldn’t say what Wyden piously claimed he wished I would have said: It would have meant publicly throwing the Agency—and the hundreds of CIA officers at all levels who had been involved in the still-ongoing interrogation program—to the wolves.
For years, I had been assuring all of these people—my colleagues, clients, and friends—that the program from the beginning had the authoritative, written imprimatur of the Justice Department. To be sure, the key legal document for us had been Bybee II, the top-secret memo to me that Justice never backed away from. Not Bybee I, which was addressed to the White House and consisted of a lengthy, dense, aggressively argued analysis that set a baseline for torture (“organ failure . . . or even death”) that the EITs, in the way they were to be administered, never came close to approaching.
And yet Bybee I and Bybee II—memos issued on the same day by the same man—were inextricably linked. After all, they were both prompted by my request for definitive, written Justice Department guidance. I couldn’t distance myself from one without potentially eroding the legitimacy of the other. And I simply couldn’t do that. I couldn’t do it to the people who had trusted and depended on my word that the EITs were legal, who would never have participated in a program—no matter how critical to preventing another 9/11—that constituted torture, one of the most repellent words in the English language.
For me to start backpedaling in front of the committee simply to curry favor for a better job title would have been worse than feckless—it would have been a craven betrayal. It was—and is—unthinkable.
As the open session mercifully wound down, I found myself increasingly eager to get off that public stage and into the closed session. To answer Levin. To answer Dianne Feinstein, the California Democrat who also had pressed me on sensitive details about CIA counterterrorist activities that I similarly said had to be deferred until we could all get behind closed doors. To answer Wyden.
Especially Wyden. In addition to his barbs about my not disavowing Bybee I, Wyden pushed hard in the open session about CIA operations in Iraq and about the CIA’s authority to capture, detain, and interrogate U.S. citizens abroad suspected of involvement in terrorist activities. With everyone watching, he wagged his finger at me and vowed to get deeply into these issues at the closed session. In fact, Wyden voiced these intentions in the last few minutes of the open hearing, so his words were ringing in my ears as I left for the committee’s secure hearing room in the Hart Senate Office Building. It was just yards away, and the closed session would begin in only a few minutes. I was looking forward to my opportunity, away from the TV cameras and reporters and the spectators, to answer the serious questions and charges from Levin, Feinstein, and Wyden then.
Except that I never got the chance. When Chairman Rockefeller gaveled the closed-door session to order, Carl Levin was now
here to be seen. Neither was Dianne Feinstein. And neither was Ron Wyden.
None of them showed up for the duration of the hearing. Rockefeller mentioned something about an ice cream social at the White House that was due to begin shortly. And then, after a few random questions from the members who were present, it was over. The closed session lasted forty minutes. It was one third as long as the open hearing.
The next I heard from the committee was six weeks later, when Ron Wyden gave a speech on the Senate floor in which he declared me “unqualified” to be the CIA’s general counsel.
CHAPTER 16
A Failed Nomination, and the End of a Program (2007–2008)
On June 20, the morning after my confirmation hearing, I was thrust back into the real-life world of the EIT program. Secretary of State Rice wanted a personal briefing on the newly refined, slimmed-down set of techniques, and she wanted to get it directly from the original architects of the program, two outside psychologists the Agency had hired under contract more than five years earlier. I worked to set up the briefing with my longtime friend John Bellinger, whom Rice had brought with her from the NSC in 2005 to serve as State’s legal advisor. The fact that it took place the day after my hearing was a coincidental bit of timing; the date had been set weeks before in order to accommodate Rice’s busy work and travel schedule. Actually, I welcomed the opportunity to attend the briefing—it kept me from dwelling on my performance at the hearing and the coverage it was getting in the media.
We arrived at Rice’s office that morning at the appointed time and were quickly escorted into a cozy, antiques-laden sitting room normally reserved for private meetings with high-ranking foreign visitors. She immediately disarmed me with some good-natured teasing about my “newfound media stardom,” citing an NPR report about my hearing that she had listened to while getting ready for work. It was the most personal thing she had ever said to me, and I was surprised and flattered by the warmth of her gesture. It was a side of Rice I had not seen before. She then directed us to a set of plush wing chairs arrayed around a small coffee table, and the briefing began.
