The Great War of Our Time: The CIA's Fight Against Terrorism--From Al Qa'ida to ISIS (34 page)

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Director Panetta, although opposed to the committee’s study about CIA’s detention and interrogation program, nonetheless gave the committee unprecedented access to Agency files. In short, the committee had access to almost everything—millions and millions of documents. But in return Panetta requested that the committee review the documents—analytic pieces, intelligence reports, operational cables, e-mails, and more—in CIA spaces. The documents contained some of CIA’s most sensitive information—including information that possibly could lead someone to identify our sources. Thus began a bipartisan congressional review of the program.

A few months later, in August 2009, Attorney General Eric Holder joined the fray of those looking backward. DOJ’s Office of Professional Responsibility (OPR) had just handed him a report—based on an independent review it had begun in 2008—that sharply criticized the legal judgment of the DOJ attorney who had written the memos authorizing the Agency’s enhanced interrogation techniques, as well as the legal judgment of the attorney who had signed off on the memos. OPR had recommended to Holder that he take steps to hold the attorneys accountable for their poor work. Additionally it had recommended that he reopen earlier DOJ decisions not to pursue the prosecution of the handful of cases regarding potential abuse in the program that CIA had referred to the Bush Justice Department.

Holder had delegated the first recommendation to one of his senior aides to decide on (the attorney general eventually decided not to take any action against the attorneys), but he’d accepted the second recommendation. And on August 24 Holder announced that he was opening a preliminary investigation into whether any federal laws had been violated in CIA’s interrogation of detainees. It was another blow to putting the entire episode behind us, and it felt like
a punch in the stomach to the officers of CIA who had earlier had cases sent to the Justice Department for review. This certainly felt like double jeopardy, although it did not meet the legal definition.

Holder’s decision also had an important impact on the SSCI review. Because the DOJ would be undertaking a criminal investigation, Director Panetta made clear that he would not compel current CIA employees to submit to interviews by the SSCI. This was exactly the right call on Panetta’s part, but it meant that the SSCI would likely not hear from current CIA officers who had firsthand knowledge of how the programs had been managed and operated—although the committee still could have asked employees to voluntarily appear for interviews, and could have done the same with former officials, including Directors Tenet, Goss, and Hayden. But the committee never asked in either case, and it never asked to speak with employees after the DOJ investigation was completed—well before the committee’s work was done.

The Republican minority on the committee, believing a thorough and fair review could not be done without interviews, in late December pulled its staff off the review team. None of this did anything to dissuade the majority, and the committee’s investigation continued. The study, at that point, ceased to be a committee effort; it was now only a Democratic majority effort.

In a somewhat reassuring development, Holder let it be known that no one would be prosecuted for actions that had been consistent with legal advice provided by the previous administration. His focus would be on anyone who might have gone beyond those authorities. Holder appointed John Durham as the special prosecutor. Durham knew the subject matter because he had been appointed by the Bush Justice Department to investigate an issue involving the destruction of videotapes of some of the Agency’s debriefings of senior al Qa‘ida operatives. But now he would be given access to an enormous amount of Agency records—every document ever produced
regarding the detention and interrogation program—and to anyone whom he wanted to interview. There were now two separate inquiries under way about the detention and interrogation programs—which no longer existed.

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The videotapes were the issue about which I first found myself thrust into the EIT issue. When EITs were first employed in the field, CIA officers decided it would be a good idea to videotape them. This was done in large part for defensive purposes. Abu Zubaydah had been badly injured during his capture; if he died in captivity, our officers would want clear evidence that CIA had not killed him. But the tapings continued well after Zubaydah recovered, and soon the officers decided that videotaping was not such a wise plan and requested permission to destroy the tapes. The staff in the Counterterrorism Center and their bosses in the Directorate of Operations were in favor of destroying the tapes—but lawyers at CIA and White House as well as other senior officials (eventually including CIA director Porter Goss and Director of National Intelligence John Negroponte) said, “Not so fast.” This became a source of frustration and concern for a couple of years. CTC was worried because the faces of Agency officers were shown on the tapes; if the tapes ever leaked or were ever released, those officers’ personal security could be in jeopardy. Also, during this time ugly images from Abu Ghraib prison made their way into the news. Although there was no similarity between the actions of rogue army reservists in Iraq and those of CIA officers employing fully authorized interrogation techniques on a handful of known terrorists, the distinction would be lost if the CIA images became public. There was no doubt that waterboarding did not make a pretty picture, and publication of those images would have had a devastating effect on CIA, damaged
the reputation of the United States abroad, and undermined the security of US officials serving abroad.

Frustrated by the lack of action, on November 8, 2005, Jose Rodriguez, the head of CIA’s operational arm, the National Clandestine Service, took it upon himself to order that the tapes be destroyed. Two Agency lawyers had told him that there were no legal obstacles to doing so and that whether he did or not was a policy call. So, despite the opposition from his superiors—Goss and Negroponte—and from the senior lawyer at CIA and senior lawyers at the White House, Rodriguez ordered the destruction and then told the chain of command. Almost exactly two years later, news of his action leaked to the
New York Times
, and the subsequent firestorm of criticism in the media and in Congress led to the appointment of a special prosecutor, John Durham, to investigate the matter. After a three-year investigation Durham ruled that he did not have grounds to prosecute Rodriguez, as Rodriguez had been told he had the legal authority to destroy the tapes. Durham concluded, however, that such legal authority had not existed and that Agency lawyers had erred in their legal judgment. Durham recommended that CIA conduct an internal “accountability board” to examine the performance of the attorneys in the matter and to assess Rodriguez’s performance as well.

CIA director David Petraeus gave the first task to the Agency’s general counsel, and gave me, his deputy, the second task. Specifically, he asked me to chair an accountability board of senior officers to sit in judgment of Rodriguez’s action. But given Rodriguez’s past seniority, the ordeal he’d gone through while being investigated by Durham over three years, and the complexity of the subject, I elected to handle the assignment solo. That he was being subjected to another review came as something of a surprise to Rodriguez, who’d thought that Durham’s decision ended the matter. I chose
to break the news to him over a drink at a nearby hotel. I explained what the director had asked me to do, and how I’d decided to handle it. Rodriguez told me that he appreciated the way I was handling the matter and answered all my questions about what he’d done and why with thoroughness and honesty.

After reviewing the matter extensively over the course of a month or so, I had Rodriguez come to my office on December 21, 2011, to hear my decision. I told him that, although I knew he believed that he’d done the Agency and its officers a service by ordering the destruction of the tapes, I believed his action had been inappropriate. I told him that the written record made it clear that he’d known that his bosses, not to mention the White House counsel, did not want the tapes destroyed and that “no organization can function if its officers ignore the wishes of their superiors and just do what they think is right.” I went on, “Jose, you would not have stood for it if people working under you took actions that they knew you were opposed to.” I told him that, given all this, I had decided to issue him a letter of reprimand in order to send a signal to the workforce that the chain of command is sacrosanct. He thanked me again for the manner in which I’d handled the matter, but made it clear to me that he still believed his actions had been necessary and justified and therefore appropriate. I know he continues to believe that to this day. (Because this was an internal personnel matter, I asked for and obtained the permission of Rodriguez to tell this story.)

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The first of the two inquiries to reach closure was the Justice Department’s. In late June 2011, Attorney General Holder announced the results of the preliminary investigation by John Durham. Holder said publicly what I had already known via private conversations—that Durham had examined every single interaction that CIA had had with any detainee and that his review had examined
whether any unauthorized interrogation techniques had been used by CIA officers, and if so, whether such techniques had constituted a violation of the torture statute or any other applicable statute.

After two years of investigation, Durham decided that only two matters—the deaths of two detainees—required a full criminal investigation. These cases are well known publicly, but for legal reasons I am not permitted to discuss them here. Importantly, Durham determined that an expanded criminal investigation was not warranted in any other interrogation matter.

Just a year later—in August 2012—Durham concluded the investigation into the two detainee deaths, announcing that he would not be filing any charges in either case. But this was not a complete exoneration—as not only had two people died, but Durham told Director Petraeus and me that if the statute of limitations had not run out, he would likely have brought criminal charges in the two cases (even though DOJ had declined prosecution in these two cases when the deaths were first brought to its attention years earlier).

Next was the SSCI study—still very much a Democratic staff report. In the late fall of 2012, after more than three years of effort, committee staffers declared that they were done. A six-thousand-plus-page report and a five-hundred-plus-page “summary and conclusions” were submitted to the committee. Chairman Feinstein wanted to vote on the report in December. The timing was critical. While almost all Republicans on the committee were opposed to the way the investigation had been conducted, and therefore to the report itself, Senator Olympia Snowe, a Republican from Maine, was supportive of it. But she was going to retire at the end of the then-current Congress, only days away. So Senator Feinstein wanted to hold a vote while Snowe was still in office so that an endorsement of the investigation could not strictly be called a “party line” vote.

Feinstein left nothing to chance and invited Harry Reid, who
as senate majority leader was an ex officio member of the committee, to attend and address the assembled senators. This was a highly unusual move. Indeed, I am not aware of another case where the senate majority leader has attended a committee meeting. I have been told that Reid advised the assembled senators that the report—which neither he nor many (if any) of the other members had read in full—was the most important piece of intelligence oversight since the Pike Committee report in the 1970s. I have also been told that the senate minority leader, Mitch McConnell, was unaware that Reid had been invited and was later furious that he had not been extended the same courtesy. The report was approved by a vote of nine to six—along strict party lines, with the exception of Snowe.

Sitting in my office over a weekend, I read the summary and conclusions of the report. It was stunning both in its scope and in the depth of its condemnation of CIA activities involving al Qa‘ida detainees. It made a number of significant charges, including that (1) the
detention and interrogation programs
did not produce intelligence of unique value (this was later revised by the committee staff to say
EITs
did not produce intelligence of value); (2) CIA had frequently gone beyond the techniques authorized by the Department of Justice; (3) CIA had mismanaged the program throughout its history; and (4) CIA had systematically misled the White House, the Justice Department, Congress, and the American public about the program (that is, CIA lied). I remember thinking, “If even half of this is true, this is awful.” The report was compelling—well written, its judgments seemingly backed up by facts, and heavily footnoted. It made me wonder what the truth really was, as the allegations did not sound like the Agency where I had worked for thirty years and was then leading. I vowed to withhold judgment until I saw the Agency’s review of the report.

Our response was well considered. I was acting director at the time and I put our best officers on the project—but no one who
had been personally involved in the program. I took my own chief of staff, Greg Tarbell, one of the most analytically brilliant officers at the Agency, off-line for several weeks to thoroughly scrub our response. Greg had large sheets of paper taped to the walls of his office in his attempt to keep track of the all the facts in each of the SSCI’s conclusions and case studies.

As our officers were coming to closure on their views of the report, I was beginning to receive updates on what they were finding—and it was not flattering to the authors of the SSCI study. They found that the committee had correctly pointed out that the Agency had not managed the program well in its early days, which had resulted in the mistreatment of some detainees and the death of one (but the committee had failed to note that the Agency’s inspector general had identified this as a problem early on and it had been quickly fixed). But they also found that the majority of the committee’s conclusions were simply wrong. In particular, they concluded that the committee’s analysis about the effectiveness of the program was seriously flawed and that the Agency had indeed generated a treasure trove of intelligence.