Playing to the Edge: American Intelligence in the Age of Terror (27 page)

The same with the intended dialogue on RDI. In the end, the
Congress of the United States had
no
impact on the shape of the CIA interrogation program going forward. Congress lacked the courage or the consensus to stop it, endorse it, or amend it. We finally simply informed them that we would seek legal authority from Justice to use six techniques; that we would not put anyone into CIA custody without an “exit plan” (Guantánamo or a third country); that we would keep detainees for a short, fixed period (about two months); that it would require a positive decision to extend that period; and we would contemporaneously inform the committees of every detainee and how they were treated.

Ironically, we had more productive discussions on this stuff with the International Committee of the Red Cross than we did with Congress. The White House wasn’t particularly enthusiastic about that, but it didn’t get in the way either. ICRC officials became frequent visitors to Langley. The ICRC has a passion for secrecy that rivals the agency’s—its access, like much of ours, depends on it—so at least in one sense we were kindred spirits.

The agency also quietly gave the ICRC a heads-up before transferring some of the later detainees to Guantánamo, and we offered what information we could to help keep ICRC people safe around the world.

But it was difficult to find middle ground on our core issue. We felt we were most effective gaining intelligence when we held prisoners secretly with no outside contact; the Red Cross was all about notification and visitation. We believed that Geneva didn’t require that because of the unlawful combatant status of our detainees, but the Red Cross disagreed based on common international practice. We were exploring an approach to notification (informing the ICRC that we had
somebody
) when the 2008 election mooted all of our discussions.

Even when we failed to find mutual understanding with the ICRC, however, we did develop some mutual respect. In one meeting, I was struck by their observation that “CIA often refuses to answer our questions, but when it does, we know the answers are true.” At least somebody believed us.

The ICRC, of course, got access to the fourteen detainees we had
moved to Guantánamo in September 2006 and prepared a report based on those interviews that it gave to CIA as the former detaining authority. The report was predictably harsh in its charges of torture and cruel and degrading treatment. We shared the report, in strictest confidence based on ICRC requirements, with the oversight committees and a very few executive branch offices. We reminded them that the document was based
solely
on detainee claims. When the Senate put on its public calendar that it was going to have a closed hearing on the report, the ICRC was understandably upset that the very existence of the report had been made public. We intervened and got the committee to take the posting off its Web site.

Then in April 2009 the entire report was published in the
New York Review of Books
by Mark Danner, a UC Berkeley professor of journalism and frequent critic of US conduct in the war on terror. The ICRC expressed regret that “information attributed to the ICRC report was made public in this manner.” Danner would only say that “the document came into my hands from parties that thought it should be made public.”

The leak was exquisitely timed to support (and justify) the administration’s decision to declassify DOJ memos on interrogations a few weeks later (chapter 20). What a coincidence!

 • • • 

T
HERE ARE DAYS
when a director of CIA is inclined to think that he is running a large public affairs, legal, and legislative liaison enterprise attached to small operational and analytic elements. Of course, it is (or should be) the other way around. That meant that there was no sense arguing about detainees if we weren’t going to capture any. If continuing this was going to be politically painful, we had better be getting something out of it.

That meant action, and that put a heavy moral and legal burden on the agency in general and me in particular. We were denying people their freedom, likely forever, in a program of extrajudicial detention.
Some people found that objectionable under any circumstances; anyone would find it objectionable if you were doing it to the wrong people. There were occasional mistakes: plain mistaken identity, or correct identity but miscalculating the detainee’s knowledge of impending evil and thus eligibility for such an extraordinary program. But we couldn’t hold ourselves to a court-of-law standard of beyond reasonable doubt either. Courts deal with crimes already committed and are usually not driven by impending future events. Intelligence is all about the future and is designed to enable action in the face of continuing doubt. Still, you had to be careful.

Abdul Hadi al Iraqi, a veteran al-Qaeda commander, was captured in late 2006 as he was traveling back to his homeland. He had a tough-guy reputation within al-Qaeda—cold-blooded, hard-charging, no-nonsense. He had also developed, largely through news accounts, an incredibly cartoonish idea of what we did and how we did it. When he arrived at the black site, we informed him who we were and also told him who he was, cutting through the cloud of aliases he was using.

He cooperated almost immediately, offering a string of rationalizations. “You know everything about us, we know everything about you. It won’t matter in the end. It will just be a waste of time, because we are going to prevail regardless of how much you know about us.” It was going to be a long conflict, anyway. “You fight a ten-year war, while we are prepared to battle for a hundred years if that’s what it takes, so what I say here won’t matter.”

Our interrogators welcomed his rationalizations, agreeing with him where they could, and respectfully disagreeing where they couldn’t. They consented to the debriefings going forward in a standard manner, but warned that at his first verifiable lie, they would change the tenor of the questioning.

CIA subject-matter experts tested him with a number of knowns, which he answered credibly, and then moved on to unknowns, which they all agreed he answered credibly as well. Hadi told his interviewers that he
was impressed with their questions and their knowledge. He said it was like they were there. For their part, the analysts on-site and at headquarters were happy with his participation.

Abdul Hadi’s interrogators briefed me on all of this in early 2007, and I invited them to come back to my office the next day to meet with Senator Feinstein, who was already on my calendar. It was all part of making Congress a partner.

The interrogators pretty much repeated their account for the senator, who then asked if they were aware of any attacks that had been thwarted based on their previous work with detainees. They deflected that as a question better asked of analysts. Their job was to condition detainees to respond credibly to questioning, and while they were aware of a number of occasions where attack information was revealed and reported, they didn’t have a box score on it.

After the interrogators explained how Abdul Hadi’s inaccurate version of what we did led to his cooperation and our decision to proceed with a standard debriefing, the senator asked if this was how we were going to conduct interrogations “from now on.” They told her that this was the way that interrogations had always been conducted. Start with an interview to determine the willingness to participate voluntarily and credibly and stick with that if it’s producing an appropriate level of information. At the first sign of fabrication, though, they were prepared to request approval for enhanced techniques.

The senator then turned to me and asked what I knew about Russian poisonings in London (Alexander Litvinenko’s polonium poisoning was two months earlier). We were done talking about interrogations.

Muhammad Rahim al-Afghani was captured in the summer of 2007. Rahim was a tough, seasoned jihadist who had prepared Tora Bora as a hideout for bin Laden in December 2001. He was not cooperative and didn’t seem frightened by the prospect of interrogation. He was definitely a candidate for EITs, but before we did that, we needed a final Justice Department opinion on the six surviving techniques. And before that
could happen, we needed an executive order clarifying Common Article 3 of the Geneva Convention.

It was complicated. First, a little history. With the Hamdan decision in June 2006, the Supreme Court had extended the protection of Common Article 3 of Geneva to the unlawful combatants of al-Qaeda. I’m not a lawyer, but I was frankly surprised by the decision, since Common Article 3 refers to conflicts not of an international character. The traditional reading of that had been intranational (i.e., civil wars). But the court (5–3) extended Common Article 3 to include the current conflict, since al-Qaeda was not a nation, even though the conflict was unarguably global.

So we needed legislative help. Our problem was not that we wanted Congress to approve or disapprove any techniques. Our problem was that we didn’t know what Common Article 3 meant in the context of American law. When the Senate had ratified other portions of international humanitarian treaties like the Geneva Conventions, the legislative history or specific statements of the Senate sometimes clarified the meaning of the treaty in terms of American law. For example, in ratifying the Convention Against Torture, the Senate was careful to define the international commitment against cruel, inhuman, and degrading treatment or punishment by referring to our domestic law against cruel and inhumane treatment or punishment as found in the Fifth, Eighth, and Fourteenth Amendments to the Constitution. There is a body of precedent that gives meaning to that.

Congress had delivered no such clarifying language with regard to Common Article 3 (perhaps expecting, like me, that it would never apply to us). The language of Common Article 3 is firm but vague, like its prohibition of “humiliating and degrading treatment.” It would be very hard for me to confidently direct an agency officer to do some things with such vague language. I was looking for some definition.

One of the “solutions” that was proposed was that the Military Commissions Act then being considered would expressly criminalize a small
set of heinous activities, and as long as CIA officers didn’t do them, they wouldn’t be prosecuted. Everything else would remain undefined.

The administration, the agency, and I rejected that solution, since it would put us in the position of turning to an agency officer and saying, “I would like you to do this with regard to this detainee; neither I nor Justice have any idea whether or not it violates the Geneva Convention, because we really don’t know what parts of the convention mean. But I’m pretty sure you’ll never have to go to court for it (or, at least not to an American court), so would you go do that for us?”

This whole issue was largely an argument with the Republicans, and it was largely fought out in the Senate.

In one large session I raised my concern about tasking an action without knowing its lawfulness and called it about the worst locker-room speech I could imagine giving to an agency officer.

Later a senator heckled me for allegedly just “wanting to give a speech.” I interrupted him and said that what I wanted to give was an order that I was confident was lawful.

Senator McCain had another approach that just cut out Congress. In a ticking-time-bomb or similar scenario, he said, the president should just do what he had to do. Legality be damned; it came with the job. Steve Hadley told him that the president wouldn’t do that. He was the chief law enforcement officer in the country, after all. And even if he did order it, he reasoned, in those circumstances he would likely have to do it himself.

In the end, Congress wasn’t going to make any tough calls, so it decided instead to reinforce already existing presidential authority to define the meaning of treaties for the United States. For anything beyond the grave breaches enumerated in the new law and the previous requirements of the Detainee Treatment Act, it would be up to the president to define the requirements of Common Article 3 for the United States and publish such decisions in the
Federal Register
.

Which is what President Bush did at our request in July 2007, which in turn enabled the Department of Justice to confirm the lawfulness of six interrogation techniques beyond those contained in the Army Field
Manual on the subject. I don’t know of anyone who has looked at the manual who could make the claim that what’s contained there exhausts the universe of lawful interrogations consistent with the Geneva Conventions. The Army Field Manual was crafted to allow America’s army to train large numbers of young men and women to debrief and interrogate, for tactical purposes, transient prisoners on a fast-moving battlefield. Those were not CIA’s circumstances.

I authorized EITs on Rahim, eventually including a liquid diet and extended sleep deprivation. I remember staring down at the page, pen in hand, hesitating to take that step.

As the interrogator who questioned Abu Zubaida pointed out, no one wants to be in these circumstances. I never came close to her situation of standing face-to-face with a defiant terrorist, but I had visited Camp 7 at Guantánamo after we delivered the fourteen HVDs to DOD custody there in September 2006. It was hard to catch even a glimpse of the men in their solitary cells, but I could observe each of them via TV monitors in the control room. Some were sleeping, some praying, some pacing, others fingering prayer beads.

The facilities were clean and bright, there was an exercise room, and detainees could talk to adjacent prisoners from each cell’s porchlike extension. Contact was all tightly controlled (and electronically monitored), of course.

Detainees could also draw on a library and a collection of music and videos (although some complained that the offerings were less robust than at their black site). Turns out that Harry Potter books were immensely popular.

It was a civilized confinement, but there was no getting around the fact that these people were going to be in these circumstances forever.