Hard Measures

by Jose A. Rodriguez, Jr.

  In response to a question, Panetta flatly called waterboarding “torture.” He did add, “If I had a ticking bomb situation and obviously whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need.”

  On April 16, 2009, the president announced that his Justice Department was releasing that day a series of memos produced between 2002 and 2005 laying out the previous administration’s legal justification for the use of interrogation techniques against terrorism suspects. He said that there was no choice but to release the documents, since they were subject to a court case, and besides the interrogation tactics “undermine our moral authority and do not make us safer.” He said the country must “reject the false choice between our security and our ideals.” He went on to assure those who carried out their duties relying in good faith on the DOJ memos that they would not be subject to prosecution. It was, he said, time to move forward from this “dark and painful chapter in our history.”

  The president then took his crusade overseas to undo what he saw as the errors of the past. In June 2009 he traveled to Cairo, where he made a speech to the Arab world in which he declared: “9/11 was an enormous trauma to our country. The fear and anger that it provoked was understandable, but in some cases, it led us to act contrary to our ideals. We are taking concrete actions to change course. I have unequivocally prohibited the use of torture by the United States, and I have ordered the prison at Guantanamo Bay closed by early next year.”

  I cannot tell you how disgusted my former colleagues and I felt to hear ourselves labeled “torturers” by the president of the United States. To hear that we had acted contrary to American ideals was infuriating. The words of the president and of members of his staff have consequences. Members of the CIA and officials from the previous administration, all the way up to the former president, are threatened with arrest in some foreign locales as war criminals. While such action is unlikely, the chances increase when those seeking to prosecute them have to look no further than the words of the current president for support.

  In August of 2009 the new attorney general, Eric Holder, announced his intention to reopen criminal investigations of CIA officers who had been involved in incidents involving the interrogation of detainees. Holder made the decision despite the fact that career Department of Justice lawyers (not political appointees) had closed the investigations during the previous administration, finding that no prosecutions were warranted. The CIA itself was the organization that first reported these incidents to DOJ, out of an abundance of caution. They included such things as Agency officers blowing cigar smoke in the face of detainees. Other incidents reported were considerably more serious, including the deaths of two detainees who were not part of the interrogation program run by CTC.

  Holder eventually admitted that he had not even read the reports by career DOJ attorneys (in which they explained why they declined to prosecute) before deciding to reopen the cases. A few weeks later, seven former CIA directors, who had served during both Democratic and Republican administrations, wrote to Obama urging him to “exercise [his] authority to reverse Attorney General Holder’s” decision. Their plea was ignored.

  The Obama administration seemed to have a political stake in declaring the actions of the past evil and their own actions necessary and correct. My former CIA colleague John Brennan is now deputy national security advisor and assistant to the president. Back in 2007, however, he was out of government and a consultant for CBS News. In November of that year he told CBS anchor Harry Smith that enhanced interrogation techniques had borne fruit. Brennan said: “There have been a lot of information that has come out from these interrogation procedures that the Agency has in fact used against the real hard-core terrorists. It has saved lives. And let’s not forget, these are hardened terrorists who have been responsible for 9/11, who have shown no remorse at all for the deaths of three thousand innocents.” Brennan went on in his CBS interview to defend Michael Mukasey, who at the time was undergoing confirmation hearings as the Bush administration’s attorney general, for refusing to call waterboarding “torture.” Had Mukasey done so, Brennan explained, those “who authorized and actually used this type of procedure may be subject to some type of judicial action.” He was right, but he is singing a different tune today.

  In August 2009, the administration created an outfit they called the High-Value Detainee Interrogation Group, or HIG, which is supposed to combine the expertise of the FBI, the CIA, the DOD, and other agencies in interrogating top terrorists—should we ever capture any. They placed the unit under the supervision of the National Security Council, ensuring that if any controversy ever arises again about detainee interrogation, the blame will land squarely and immediately on the White House doorstep.

  Five months later Umar Farouk Abdulmutallab, the underwear bomber, through dumb luck, failed to detonate his bomb. Had he succeeded, he might have brought down a commercial airliner over Detroit. Who put him up to the mission? Were there others like him out there? What other tactics was al-Qa’ida considering? All important questions, but the HIG wasn’t called in to interrogate him, for what turned out to be a good reason—the administration hadn’t quite gotten around to making the unit operational. Instead, the attorney general jumped in and authorized officials on scene to read the potential bomber his Miranda rights after being questioned for mere minutes.

  The odd thing is that the Obama administration has been very aggressive in going after al-Qa’ida and other terrorists. In many ways it has taken the efforts of the past administration and built upon them. I applaud it for that. But by its precipitous actions to ban any interrogation techniques beyond those in the Army Field Manual, its rush to bar any overseas detention facility, and its stumbling efforts to close Guantanamo Bay (only to have that effort put on hold when it discovered no viable alternative to that prison for the worst al-Qa’ida operatives), the Obama administration has managed to tie itself into knots when it comes to dealing with terrorists. It has given a road map to America’s enemies. Al-Qa’ida now knows exactly how far (not very) the United States will go in interrogating its prisoners. They have a manual on how to wait us out and live to strike again.

  If an al-Qa’ida operative were to be captured in Pakistan today, that person would likely be held in Pakistani custody. Ask yourself, is that detainee better off because of this administration’s changes? Is the United States better off? One gets the clear impression that capturing and interrogating terrorists is on the “too hard” list these days.

  With no black sites still open and no reasonable place to take detainees who might be captured, the administration has stumbled into a “take no prisoners” approach. It has limited itself to using blunt instruments in the war on terror. An administration that thinks it was “torture” to interfere with the sleep cycle of a handful of the worst terrorists on the planet has no problem with authorizing the firing of Hellfire missiles into a group of thirty or forty suspects gathered around a campfire. Care is taken, no doubt, to try to keep collateral damage to a minimum, but sadly, from time to time there will inevitably be innocents in the wrong place at the wrong time. The administration is left with the vague hope that God shields those who mistakenly venture too close to the real enemy. Needless to say, there is no opportunity to interrogate or learn anything from a suspect who is vaporized by a missile launched by a keystroke executed thousands of miles away.

  I have the impression that some of the savvier members of the Obama administration’s national security team are starting to recognize that they have boxed themselves in. How to get out of that box is something they haven’t figured out yet, however.

  General David Petraeus had spoken out against the enhanced interrogation techniques when he was serving in top military positions. But when he had his Senate confirmation hearing in June 2011, I thought I detected a subtle shift in his position. While he continued to support the use of the Army Fi
eld Manual for interrogations, he was asked by Senator John McCain about the “ticking time bomb” scenario.

  Here is what he said: “I think that is a special case. I think there should be discussion of that by policymakers and by Congress. I think that it should be thought out ahead of time.” Later, in an exchange with Senator McCain, Petraeus said that he believed this should be “a nuclear football kind of procedure where … there is an authorization, but it has to come from the top … this can’t be something where we are forcing low-level individuals to have to make a choice under enormous duress.” I would submit that that was pretty much where we were in 2002. We very much heard the time bomb ticking. No low-level individuals made any decisions. At the highest level of the U.S. government a set of tactics was approved and carefully and selectively implemented.

  Well, what about Petraeus’s caveat that this be discussed by policymakers and Congress? Once again, I would argue that that is what we did.

  In May 2009, amid the Obama administration’s efforts to demonize the actions of the past, Speaker of the House Nancy Pelosi stood up and accused the CIA of lying to her and her colleagues about our interrogation program. That simply wasn’t so. As I said earlier, I was the one who led a CIA team to Capitol Hill to brief Pelosi and Porter Goss, then chairman of the House Intelligence Committee, on September 4, 2002. We described in detail each of the specific techniques used in the interrogation of AZ that had been used for a couple of weeks in August. We explained that as a result of the techniques, Abu Zubaydah was compliant and providing good intelligence. We made it crystal clear that authorized techniques, including waterboarding, had by then been used on Abu Zubaydah. Years later Pelosi said that we only briefly mentioned waterboarding but had left the impression that it had not been used. That is untrue. Neither she nor Goss posed any objection to the techniques that were then in use. I know she got it. There is no doubt in my mind that she, like almost all Americans less than a year after 9/11, wanted us to be aggressive to make sure that al-Qa’ida wasn’t able to replicate their attack.

  One of the members of the small team of people I brought with me from CTC mentioned in the course of the briefing that there was another technique that had been considered but had not been authorized and had not been used. Pelosi piped up immediately and said that in her view use of that technique (which I will not describe here) would have been “wrong.” I agree. That is why we didn’t use it. But since she felt free to label one considered-and-rejected technique as wrong, we went away with the clear impression that she harbored no such feelings about the ten tactics that we told her were in use.

  Six days after the session with Goss and Pelosi, a cable went out from headquarters to the black site informing them that the briefing for the House leadership had taken place (a similar briefing for Senate Intelligence Committee officials was conducted on September 27). The cable to the field made clear that Goss and Pelosi had been briefed on the state of AZ’s interrogation, specifically including the use of the waterboard and other enhanced interrogation techniques.

  Seven years later, when the winds, and the administration, had changed, Pelosi told the world that the CIA had lied to her. Porter Goss, always the gentleman, wrote an Op-Ed piece for the Washington Post in which he described the comments coming from the Hill as a “disturbing epidemic of amnesia.” He reported that it was not a single briefing but “an ongoing subject with lots of back and forth between those members and the briefers.” He said he was “slack-jawed” to hear that some members claimed not to know what was going on.

  So Pelosi was another member of Congress reinventing the truth. What’s the big deal? The problem is the message they are sending to the men and women of the intelligence community who to this day are being asked to undertake dangerous and sometimes controversial actions on behalf of their government. They are told that the administration and Congress “have their back.” You will forgive CIA officers if they are not filled with confidence. I sometimes think that many politicians had watched too many episodes of the old TV series Mission Impossible. The part they liked best was the opening, in which the operatives were told that if anything went wrong their leaders would “disavow any knowledge of your actions.” That is not how it should work in the real world. It is no accident that one of the busiest outfits in Washington is the firm that sells legal liability insurance to CIA officers in case they find themselves hauled into court facing charges for doing things that this administration, or the one before it, and this Congress, or the one before that, ordered them to do.

  The seeds that the Obama administration has sown have already begun to bear fruit. Unable or unwilling to capture, hold, and interrogate terrorists, it has, in my view, over-relied on technical means to kill suspected terrorists from afar. Drones can be a highly effective way of dealing with high-priority targets who cannot be reached any other way. But they should not become the drug of choice for an administration that is afraid to use successful, legal, and safe tactics of the past. Go to the well too often with drones and you alienate the fragile partners we have in those areas where potential targets abound.

  It has been widely reported that the administration used remotely piloted vehicles to kill Anwar al-Awlaki, an American citizen, in Yemen on September 30, 2011. At least two other people reportedly died with him, including another American, Samir Khan, whose presence with al-Awlaki may have been unknown to those ordering the shot. Let me be clear: Al-Awlaki was an evil man who had close ties to 9/11 hijackers and helped inspire the murderous rampage of the Fort Hood shooter and the nearly successful actions of the underwear bomber. Al-Awlaki’s removal from the gene pool was a positive thing.

  Although it is not a word I would ever use, there is a German term, Schadenfreude, which means taking pleasure from the misfortune of others. I must admit a small case of it as I observe the current administration facing some challenges not unlike those we faced not that long ago. Suddenly members of Congress (mostly from the opposing party) are demanding public release of secret Justice Department memos that lay out the justification for the actions just taken. The administration resists, saying that public release of the memos would only hamstring their efforts to keep America safe. More troubling for them may be the comments from both inside and outside this country that their actions in killing a suspected terrorist, outside a declared war zone, might be illegal. I am certain that the administration feels (as I do) that its actions were justified. But if the administration is wise, it is giving some thought to the precedent it set itself. When a new administration comes to power, its well-intentioned actions may be judged in an entirely different light.

  As they look over their shoulders dealing with the countless security challenges they face, officials in this administration and those that follow will be tempted to trim their actions with the goal of preventing controversy rather than preventing crisis. What courses of action they decide to take will long be debated. For me, it is all about leadership. It is easy for armchair quarterbacks, and politicians not in power, to simply say, “You must do the right thing.” Figuring out what that thing is can be only half the problem. Then you must decide if you are willing to pay the price for being right.

  One of the most essential factors for me was loyalty to the people I led. That loyalty was my moral compass. I could not operate any other way. I was strengthened by the knowledge that that loyalty worked both ways, and time and again my fidelity to my people was repaid manyfold by their incredible support for me.

  When you make difficult decisions you must do so with the hope but not the expectation that in the end your actions will be validated and vindicated. The easiest thing in the world is to make no tough decisions. I could have had a much more placid and profitable life in recent years if I had elected to make no tough choices. Those who “go along to get along” rarely suffer negative consequences.

  After years of investigation and scrutiny, I believe my actions were vindicated and, I must tell you, that judgment felt sweet. But
there are no guarantees. A leader has choices to make. I chose to pursue hard measures. I have no regrets. I would do it all again, because it was the right thing to do—vindicated or not. I know our actions helped save American lives—and I can live with that.

  AFTERWORD

  Proving that there is no horse so dead that the bureaucracy can’t work up the energy to beat it some more, my saga of the interrogation tapes did not end with word that the special prosecutor had decided not to prosecute me.

  In November 2011, as I was finishing the manuscript for this book, I received the surprising news that John Durham had sent word to the CIA that while he could find no cause to bring me to trial, some sort of administrative action might be appropriate.

  Deputy CIA Director Michael Morell, someone whom I worked closely with during my time at the Agency and whom I greatly respect, called me early one morning to inform me that Durham had suggested that the Agency consider whether I should receive a letter of reprimand for “insubordination.” “I cannot hide my disappointment with the fact that after a three-year criminal investigation I continue to be hounded by my own government,” I told him. “Nevertheless, if you can get former director Porter Goss or his boss, President George W. Bush, to say that I was insubordinate, I will take the rap.”

  This was not my first rodeo. I inquired about what the process would be. Because I was so senior at the time of my retirement, I was told, it would not be appropriate for more junior personnel to sit in judgment of my actions. The Agency considered several formulations for structuring an accountability board, but in the end it turned out to be a one-man board: Morell.