Every new job has its obstacles. In the case of the position I started on July 5, 2006, as the number three official in CIA, the doorway to my new office had recently been blocked by crime scene tape. No kidding. As I mentioned earlier, the previous occupant of the office, Dusty Foggo, was under investigation for a variety of wrongdoings and later pleaded guilty to corruption in steering a CIA contract to a friend. The investigation included an FBI raid in mid-May 2006 on his office at CIA and one on his home. Foggo eventually ended up serving several years in federal prison.
Foggo was a West Coast wheeler-dealer—so the new CIA director, Mike Hayden, had probably wanted someone with my Midwestern straight-arrow image to try to restore respect for the office. After all, in addition to being in charge of administration, budgets, IT, security, and HR, I was also in charge of maintaining good order and discipline at the Agency.
Foggo, only a mid-level officer when he was promoted to the top of the Agency, had gotten the job by taking very good care of congressional staffers when they visited him in his previous assignment at an overseas post. Foggo treated the staffers well (two weeks after I started in the new job, I found twenty to twenty-five bottles of expensive liquor in a credenza in my office, a special treat for the “right” visitors to Foggo’s office) while bad-mouthing his director George Tenet and the other senior leaders of the Agency. Great guy.
* * *
Two days after I started, one of the Agency’s senior attorneys paid me a visit. He said he needed to “read me into [brief me on] a compartmented program.” That is CIA-speak for being brought into the circle of trust on a sensitive operation—in this case the Agency’s detention and interrogation programs. The programs involved the Agency’s establishment, after 9/11, of several secret prisons around the world and the use of harsh interrogation techniques to obtain critical information from the most senior and hardened al Qa‘ida leaders that we kept in those prisons. The programs had been in place since 2002.
After I signed a document—essentially saying that I understood I could go to jail if I ever disclosed the information in an unauthorized way—the attorney briefed me on the locations of the Agency’s secret detention facilities. He also briefed me on the “enhanced interrogation techniques” (or EITs—CIA’s name for the harsh techniques) designed to teach detainees that they had resisted as much as they could, that they were helpless, and therefore that it was acceptable for them to answer our questions thoroughly and truthfully. He explained each technique in detail. I remember thinking that a few of the techniques, in particular waterboarding, were extraordinarily harsh, but I also learned that of the ten techniques that had originally been authorized only six were still in use, including grabbing detainees to get their attention and depriving them of sleep. Waterboarding was no longer authorized and, in fact, had not been utilized in over three years.
The lawyer also explained that only about a hundred people had ever been detained by CIA and that of those, fewer than a third had been subjected to enhanced techniques. He noted only three had been waterboarded—the last session having taken place in 2003. He also told me that the techniques were used for only a short time on any detainee (a few days to a few weeks early in their multi-year-long detentions). And he noted that by the time I was being briefed, with hardly any new senior terrorist operatives being caught, the remaining EITs were barely in use at all. But they could still be used if we caught some senior al Qa‘ida associate with knowledge of impending attacks or Bin Ladin’s current location.
* * *
On November 4, 2008, the country elected Barack Obama to be our forty-fourth president. His victory was decisive. Obama received 53 percent of the popular vote, the most for a Democrat in over half a century. And he won 365 electoral votes to John McCain’s 173. In terms of the new president’s beloved sport, basketball, it was a blowout.
Obama wanted to bring considerable forward-looking change to America, but one thing that his victory unleashed was an unrelenting look backward at some of the counterterrorism tools that the Bush administration had used in the aftermath of 9/11. Among those, and by far the most controversial, were CIA’s rendition, detention, and interrogation programs (often lumped together by the acronym RDI). Renditions, a long-standing practice and the key counterterrorism tool used by the Clinton administration, involved CIA’s transporting terrorist suspects from where they were captured to their countries of origin or elsewhere, where they were wanted on charges or otherwise put into a legal process.
The new president had made his position on these programs clear during the election campaign. He had called for an end to renditions, calling the practice “shipping away prisoners in the dead of night to be tortured in far-off countries.” He’d likewise called for an end to “secret prisons to jail people beyond the reach of the law.” He’d labeled harsh interrogation techniques “torture.” And he’d suggested that all these practices were inconsistent with American leadership in the world and its commitment to humanity, decency, and respect for all individuals.
* * *
Months before the election, the intelligence community began preparing for a new president, and the director of national intelligence at the time, Mike McConnell, asked me—at the time serving as CIA’s director for intelligence, the Agency’s chief analyst—to play a large role in the transition. As had been done historically, the intelligence community offered national security briefings to the candidates. Along with a team, I briefed John McCain—who, given his long service in Congress, particularly on the Senate Armed Services Committee, did not need a briefing. He knew as much as we did about national security.
And, along with another team, I provided Sarah Palin with her first-ever national security briefing. I was impressed with Governor Palin’s interest in what motivated individual foreign leaders, and it was clear she had a natural understanding of people and how to deal with them. But her knowledge of the world was diametrically opposed to that of her running mate. She knew almost nothing about the key foreign policy and national security issues of the day. In contrast to the many questions she asked about people, she asked almost none about the issues themselves. She was in over her head, she seemed to me to know it, and it was not her fault. I felt sorry she had been put in that situation.
In addition to giving oral briefings to the candidates, we prepared briefing papers for the senior officials that the new president would bring along with him. We also prepared two briefing packages for the president-elect himself—a package on CIA’s most sensitive programs (of which fewer than ten copies were made) and a book of short biographies of all the world leaders who were likely to call the winner to congratulate him.
We also prepared—with the permission of the Bush White House—to start providing the President’s Daily Brief to the winner as soon as possible after the election. But the White House added a crucial caveat—only the president-elect and those he had already publicly named to a senior national security post could receive the PDB. No one else.
This was not the White House playing politics. This was President Bush continuing his eight-year practice of limiting the number of people who received the PDB, in order to protect the information in it. During my one year briefing the president, it had fallen to me on several occasions to make the case to add someone to the dissemination list. Bush would always ask tough questions about the person’s need to know—and these were senior officials in his own administration. In each case he would say to me, “The more people who receive the PDB, the more you will water it down.” He was right. That was exactly the way it worked.
McConnell also requested that I go to Chicago—or Phoenix, if McCain had won the election—for the transition, to be the on-scene coordinator for getting the president-elect up to speed on intelligence matters. McConnell had chosen two senior analysts to be the newly elected president’s daily intelligence briefers, but McConnell wanted me in the room as well. In a reversal from my Bush briefing days, I would now be doing the color commentary, while others would be doing the play-by-play.
With Obama’s victory, McConnell said that he wanted to do the first two briefings himself for the president-elect—they were set for Thursday and Friday, November 6 and 7, starting just two days after the election. McConnell requested that I and one of the two daily briefers join him, so that he could introduce us. The briefing was set for nine a.m. in a secure conference room at the FBI’s field office in Chicago.
Just before nine the president-elect walked in, all smiles, accompanied by several of his aides who had handled national security matters during the campaign and who were destined for top jobs in the administration. The group included Denis McDonough, Mark Lippert, and Jim Steinberg. After introductions and congratulations, McConnell apologetically made it clear that his instructions were that only Obama was to receive the briefing, not the others. The president-elect in turn made it clear that he wanted his team in the room. I appreciated the president-elect’s position. What he was asking for made perfect sense: he wanted to have conversations with his senior aides about the policy implications of what he was reading and hearing. McConnell, however, stuck to his White House guidance—although I was thinking, “Now is the time to be flexible, let them all in the room, and ask for forgiveness from the White House later. This is about building relationships that will last for the next four or eight years.”
The smiles and sunny attitudes disappeared. Neither side wanted to budge. Obama and his team caucused in a nearby office, with the president-elect eventually returning and saying, “OK, I’ll take the briefing today, but from tomorrow on you can just send it to me to read myself—until you include my guys.” The intelligence community had gotten off to a very bad start with its new boss.
While the plan had been for McConnell to stay in Chicago for one night and for me to stay for several weeks to oversee the daily PDB sessions and facilitate other substantive briefings for Obama during the transition period, that no longer seemed to make any sense, since he had no desire to take any in-person briefings without his team. So McConnell and I decided to fly home, but the Air Force jet that had brought us to Chicago had departed and it was not due back till the next day.
We improvised. Although the DNI’s security detail did not like it, McConnell decided that we would fly back to D.C. on a commercial jet—it would save us time and save the taxpayers money. McConnell and I—and two of his security agents—were whisked through O’Hare Airport security and put on the plane before the other passengers boarded. On the plane we met two federal air marshals who happened to be assigned to the flight to Washington’s National Airport. A conversation ensued between the marshals and McConnell’s security detail. The marshals asked, “Are you guys armed?” Answer: “Yes.” The marshals went on, “Well, just so you know, we are armed as well, and so are both the pilot and copilot of the flight.” I was thinking, “If anyone tries to hijack this plane they are in for one helluva surprise!”
A couple of weeks later the Bush administration relented and agreed to allow a couple of designated Obama aides to be present for the briefings. I returned to Chicago and, working with McDonough and Lippert, began to coordinate a wide-ranging series of briefings for the president-elect and his team on matters such as counterterrorism, counter-proliferation, Middle East peace, and regional hot spots. I worked hard to improve relations that had turned as frosty as a Chicago winter, and ended up spending the better part of a month in the Windy City.
I found the president to be reserved in many of the briefings, asking few questions. McDonough and Lippert, on the other hand, asked many questions in front of their boss and shared their views on issues. The president-elect listened intently to what they had to say. It struck me that they felt comfortable enough with their boss to talk for lengthy periods and even to take over the conversation. To me this signaled that Obama was willing to listen to the views of others and to create an environment where his subordinates felt they were welcome to speak—incredibly important traits, I believe, in any decision-maker.
* * *
One of the briefings I organized, held on December 9, was the president-elect’s first orientation about the most sensitive operations of the intelligence community—covert action. These are operations conducted by CIA with the express written authorization of the president through the use of a presidential finding. They are among the most sensitive and secret actions of the US government, and any new president needs to be briefed on them before being sworn in—because they are his programs and he needs to be comfortable with them. This brought the rendition, detention, and interrogation issues to the table for the first time with the new president.
While I was unable to attend—I was back in Washington—the briefing was led by my boss, CIA director Mike Hayden. As part of the agenda, Hayden gave the president-elect and his team their first in-depth briefing on enhanced interrogation techniques. Hayden, hoping that the session would ease the president-elect’s opposition to the program, explained that there was much misinformation about these techniques. Hayden stressed the valuable intelligence gained by the program and emphasized that only six enhanced techniques were available for use; he also emphasized that those still authorized, like the original list of ten, had been deemed by the Department of Justice not to be torture. To make the point he demonstrated one of them, the open-hand facial slap, on Deputy DNI David Shedd.
Several months later I heard from several of Obama’s top aides that the president-elect had reacted to the briefing in a way quite different from what Hayden had intended. It actually convinced the president of the impropriety of the techniques and cemented his view on what to do about them. On January 22, 2009, President Obama’s second full day in office, he signed an executive order banning the use of all the enhanced techniques and ordering that any future interrogation by any government agency follow the rules laid out in the Army Field Manual. He also directed CIA to close any remaining detention facilities (which had been emptied in 2006) and never operate them again. Although it went largely unnoticed by the media, the president did an about-face on the practice of rendition. He subtly endorsed the continued use of renditions—calling them “short-term transfers”—but in doing so he required greater oversight from the executive branch.
In announcing the new approach to renditions, detentions, and interrogations, Obama made clear that he did not want to look backward at what the Bush administration had done. He wanted to move forward. He wanted to put the past behind us. Indeed, he had told George Stephanopoulos a few days before signing the executive orders that he was not interested in a broad investigation of Bush-era interrogation programs.
* * *
It quickly became clear that not looking in the rearview mirror was wishful thinking. Obama’s first choice to be CIA director was John Brennan, the co-leader of the president-elect’s transition team for the intelligence community and an advisor on national security issues to Obama when he was on the campaign trail. But Brennan had been the number four in the Agency’s hierarchy when the detention and interrogation program was established in 2002, and human rights groups came out strongly against his nomination. Brennan, not wanting to subject the president to an early nomination fight, withdrew his name from consideration. Obama instead brought Brennan into the White House to be his counterterrorism czar, a position that did not require Senate confirmation.
Obama then turned to Leon Panetta to be his chief spy. In his confirmation hearing to become the new CIA director, liberal members of the Senate Select Committee on Intelligence (SSCI) insisted on asking Panetta if he thought that waterboarding amounted to torture. Panetta said yes. CIA officers who had been involved in the program, and who had been assured by the Department of Justice that waterboarding was legal and not torture, were not happy. Panetta eventually won over these officers, but it was a rough start.
The look backward would continue in March 2009, when the SSCI decided by a vote of fourteen to one to do a review of CIA’s defunct detention and interrogation program. Chairman of the Committee Dianne Feinstein and Vice Chairman Kit Bond, in a joint press statement, said that the purpose of the review was “to shape detention and interrogation policies in the future.” They noted that the review would include a close look at documents, as well as interviews of Agency officials. Feinstein later told me that she was motivated by a strongly held view that it was morally wrong for the Agency to have used EITs, and that the Agency should never do so again, no matter who the president is. Feinstein said that she wanted the committee’s report to be the nail in the coffin. The timing of the investigation reflected the fact that Feinstein had become chairman of the committee in January 2009.
* * *
Senator Feinstein is someone I got to know well during my time as deputy director. She has strongly held opinions on many issues. I have deep respect for her passion about national security and the importance of intelligence to keeping the country safe. There are few members of the Senate who can match her in these regards. She is also innovative. During Panetta’s early tenure as director, she began what would become a series of “coffees” with the committee. Instead of the members’ sitting on a dais with the director or me at the witness table, we would all sit around a table together. The atmosphere was much more informal and the dialogue much richer. Feinstein even brought coffee and doughnuts—Krispy Kreme glazed—to the sessions. These sessions were so successful in keeping the committee fully informed that the concept spread to the House Intelligence Committee.
I cannot overstate the importance of congressional oversight. Since CIA is a secret intelligence organization operating in a democracy, it is vitally important that CIA’s two oversight committees—the Senate Select Committee on Intelligence and its House counterpart—satisfy themselves and make clear to the American people that CIA is operating within the law and that it is operating effectively.
During my seven-and-a-half years on CIA’s senior leadership team, I saw ups and downs in our relationship with the committees for a variety of reasons. I believe it is the responsibility of both the leadership of CIA and the leadership of the committees to make the relationship work, but at the end of the day the onus is on the CIA director.
I saw the relationship work best under Leon Panetta. Panetta’s approach was that he, I, and the rest of the leadership team—indeed, the entire Agency—should be completely open and forthcoming with the committee. When Congress believes—either accurately or inaccurately—that CIA is trying to hide something from them, things go downhill. Panetta also did the small things to help the relationship—for example, a phone call just to touch base or hosting a dinner in the director’s dining room—all of which paid dividends.
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.
* * *
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.)
* * *
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.
I believe that the SSCI staff that produced the committee’s study did a great disservice to the committee, the Central Intelligence Agency, and the country. It appears to me that the staffers wrote the report that they thought their political masters wanted to see. Their prosecutor’s brief was intended to figuratively go for the death penalty. I believe they fell in love with material that appeared to confirm what they wanted to see and found ways of explaining away facts that did not fit their narrative.
Senator Feinstein also bears significant responsibility for the many flaws in the report. She made her very strong views on the appropriateness of CIA’s program known to her staff—a step that undoubtedly made it difficult for those writing a report to be objective. This is an error that even the most junior of managers of analysis at CIA would never make. And Senator Feinstein was told on numerous occasions about the serious flaws in the report—including by me several times. At one meeting, I walked her through specific examples in the report of errors of fact, errors of logic, and errors of context (the latter situation is where the presented facts are accurate but other missing facts are necessary to understand the issue). And I pointed out that the examples were just the tip of the iceberg. I told her the report was riddled with such mistakes.
Errors of fact: Page six of the report’s Findings and Conclusions reads “The CIA restricted access to information about the program from members of the Committee beyond the chairman and vice chairman until September 6, 2006…” Wrong. The CIA did not restrict access; the White House did. There is also an error of context here: Nowhere does the report state that some of the committee leaders who were briefed, including SSCI Chairman Pat Roberts and HPSCI Chairman Porter Goss, supported limiting knowledge of the program only to the leadership. They did not want their members briefed either.
Errors of logic: The report’s very first finding reads: “The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.” Here is the first fact provided to support that judgment: “… seven of the 39 CIA detainees known to have been subjected to the CIA’s enhanced interrogation techniques produced no intelligence while in CIA custody.” Hmm. Does that mean that thirty-two of thirty-nine did produce intelligence? Sounds like an argument that EITs worked, not the other way around.
Errors of context: In arguing that the CIA impeded congressional oversight of the program, the report states “The CIA did not brief the leadership of the Senate Select Committee on the CIA’s enhanced interrogation techniques until September 2002, after the techniques had been approved and used.” That is true, and it sounds bad. But the report conveniently left out some other interesting facts that shed a different light on this issue. The report does not say that EITs were first used on Abu Zubaydah in August 2002, while the Congress was on summer recess. The HPSCI leadership was briefed on September 4, and the SSCI leadership was briefed on September 27. Hardly withholding information from Congress.
These multiple types of errors occur throughout the report’s thousands of pages. Most of the errors are ones that even a smart high school student would not make. Many, including me, have said publicly that the report is deeply flawed. These are the reasons why. The report is not the history of the program the Senator Feinstein has said it is; it is one of the worst pieces of analysis that this thirty-three-year veteran of analysis at CIA has ever seen.
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Never has a program generated such controversy and debate. Was it legal or was it torture? Was it effective or not? Was it necessary or not? Was it the right thing to do or not? Given that the program was one of the CIA’s main responses to 9/11 and to the further threat posed by Bin Ladin and al Qa‘ida, I would like to weigh in on the subject.
The first point to make is that we are actually talking about two different programs. One is the detainee program—CIA’s establishment of secret prisons around the world where we held high-value detainees. And the second is the use of enhanced interrogation techniques—harsh measures—to extract information that detainees were otherwise unwilling to provide. This is an important distinction because you can have the detention program without the EIT program. To merge the two programs in a report is doing history a disservice. Each needs to be addressed separately.
The second point is that context is everything. In order to thoughtfully consider the program, it is very important to understand what the key decision-makers at the time—President Bush, National Security Advisor Condi Rice, and Director Tenet—were facing every day.
My last official action aboard Air Force One on 9/11 was to brief President Bush regarding an intelligence report that George Tenet’s staff at CIA had just sent me. While the credibility of the source was unknown, the information itself was stunning but believable given what had occurred fewer than twelve hours earlier. The report, provided to us by one of the many foreign intelligence services with which we work closely, indicated that al Qa‘ida had prepared a second wave of attacks. This possibility was already in everyone’s mind, but here it was in black and white. The president read the report very closely, handed it back to me, and simply said, “Thank you, Michael.”
This report began what became an avalanche—literally thousands—of intelligence reports in the months following 9/11 that strongly indicated that al Qa‘ida would hit us again in the homeland.
Some of these reports talked about the possible use of weapons of mass destruction by al Qa‘ida—chemical weapons, biological weapons, and even crude nuclear devices. This too was believable, as it matched pre-9/11 reporting on the group’s interest in such weapons and was consistent with post-9/11 reporting about Bin Ladin meeting with Pakistani nuclear scientists, and with what we were learning from now having access to al Qa‘ida’s former training camps in Afghanistan. What we were finding there included hands-on research into poisons and crude chemical weapons and, most worrisome, work on producing anthrax, a deadly biological weapon. Just a small amount of anthrax—a single gram—contains a hundred million lethal doses. If produced and disseminated effectively, a small amount of anthrax released in the fast-moving air of a subway system could kill hundreds of thousands of people.
It was the longest sustained period of significant threat reporting that I experienced in my fifteen years of working the al Qa‘ida issue. We were certain we were going to be attacked again. During the five-minute walk from Tenet’s “downtown” office in the Old Executive Office Building to the West Wing of the White House, Tenet and I, aware of all the intelligence, would routinely ask each other, “Is today the day we get hit again?” I seriously thought a nuclear detonation in New York or Washington was a possibility—to the point of telling my wife (we were living near Dulles Airport at the time, some thirty miles west of D.C.) that if such an attack were to happen in Washington to put the kids in the car and start driving west and not stop. It was surreal.
This reporting—reinforced by Richard Reid’s attempt to bring down an American Airlines flight from Paris to Miami in late December 2001—put tremendous pressure on the White House in general and on CIA in particular to prevent another attack. Most important, it was impossible to forget for an instant that three thousand people had been killed in a little over an hour by only nineteen terrorists. And now we had reporting that another such tragedy, or even worse, might be right around the corner.
This deluge of threat reporting coincided with the capture of senior al Qa‘ida operative Abu Zubaydah in March 2002. Zubaydah had extensive knowledge of al Qa‘ida personnel and operations. While briefly cooperative, Zubaydah, under standard interrogation techniques, later became defiant and evasive. It was clear that he was holding back information—information that could foil attacks and possibly save lives.
It was in this context that professional intelligence officers in CIA’s Counterterrorism Center came to the leadership of the Agency and recommended using a set of harsh interrogation techniques. In short, they walked into the director’s office and said, “If we do not use these techniques, Americans are going to die.” This statement was not hyperbole. It was exactly what our officers thought, and there was good reason to think it. Once convinced, George Tenet had a similar conversation with the White House, and the interrogation program was born.
Where did the idea originate for using the particular set of techniques that was the program—attention grasp, walling, facial hold, facial slap, cramped confinement, insects, wall standing, stress positions, sleep deprivation, and waterboarding? They came from two psychologists—contractors working for the Agency—who helped train US servicemen to resist harsh interrogations if captured on the battlefield and who, in providing such training, learned that certain techniques were effective in getting people to a state of compliance in responding to questions. These were the techniques that the contractors suggested to CIA when it became clear that the most hardened and ideologically committed al Qa‘ida operatives would not cooperate.
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The CIA detention program—the creation of our own prisons, known as “black sites”—came somewhat earlier. We and our allies were capturing individuals we believed were aware of future plots, as well as the whereabouts of other senior leaders who were plotting against America. The Department of Defense refused to take them—so we had only two options at the time: bring them to the United States and put them into a judicial process, or turn them over to their countries of origin. In neither case could we guarantee that we would get intelligence from them. So we proposed a new option: create our own detention system, where we could ask them any question we wanted at any time. We could also monitor them continuously to acquire any intelligence they might disclose in conversations with other detainees. The sites were set up with the knowledge and cooperation of the host governments, who wanted our thanks, some financial support, and our silence. While we delivered on the first two promises, we, as a country, were not able to deliver on the third.
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The second point is that the detention and interrogation program was not some rogue CIA operation that might be depicted in a Hollywood movie. CIA proposed the program but undertook it only with the explicit approval of the White House.
In a conversation with Senator Feinstein after her staff completed its report on the program, she was surprised when Director Brennan and I told her that President Bush had been aware of the program. After the Senate committee spent tens of millions of dollars and four years on its investigation, its leader was unaware that the president of the United States had signed off on the program. Her staff had gone through millions of documents, but somehow no one had thought to read President Bush’s memoirs, where he states clearly that he approved the detention and interrogation program.
CIA also briefed Congress on the program—initially only the leadership of the intelligence committees and then later the entire committees. There were roughly forty separate briefings with Congress. When the leadership was briefed (eight different members over time), there was no opposition to the program (one member wanted to make sure that the White House had indeed approved the program). There was either approval or in some cases concern that CIA was not going far enough in trying to obtain information from detainees. When CIA in early 2004 temporarily stopped the use of EITs because it wanted to ensure that the program was still legal in the face of changes in the law (which the Agency did several times), Senator Jay Rockefeller, the ranking member on the Senate Intelligence Committee, scolded the Agency for being risk averse.
I believe the reason members of Congress reacted the way they did was because they understood the threat picture. They were briefed on it regularly. They felt the threat from al Qa‘ida as acutely as did the Bush administration. Senator Rockefeller told Wolf Blitzer on CNN following the capture of KSM, “He’ll be grilled by us… I’m sure we’ll be very very tough with him… He does have the information. Getting that information will save American lives. We have no business not getting that information.”
And Senator Feinstein herself, who was not one of the members of Congress initially briefed on the program, said in 2002, “I have no doubt that had it not been for 9/11… that it would have been business as usual. It took that real attack, I think, to kind of shiver our timbers enough to let us know that the threat is profound, that we have to do some things that historically we have not wanted to do to protect ourselves.”
The third point is about the legality of the program. Were EITs legal? As the review by DOJ’s Office of Professional Responsibility showed, whether the Department of Justice’s Office of Legal Counsel (which is charged with providing legal advice to the president and all executive branch agencies) made the right legal call at the time is open to debate. It is hard to know with any certainty what the Supreme Court would have said if the matter had come before it. But what is very important to remember is that, at the time the EITs were being used, the Department of Justice told CIA that they were legal. Period. Full stop. The techniques, including waterboarding, were deemed by the Department of Justice not to be a violation of domestic law or US treaty obligations. They were deemed NOT to be torture. So, from a legal perspective, to call what CIA officers did at the time “torture” is wrong and does those officers a great disservice.
And the legal judgment by the Department of Justice was not just a one-time decision. This judgment was reinforced again and again through multiple legal opinions—many of them sought by the Agency as the legislative landscape changed and senior CIA leaders worked to assure that the Department of Justice and White House agreed that CIA and its officers were operating within the law.
The fourth point is about effectiveness. There is no doubt in my mind that the enhanced techniques were effective. Why do I believe this? Because of the SSCI report and the Agency’s response to it, my last months as deputy director involved my studying this issue in great detail. I read case study after case study in which detainees, before being subjected to EITs, provided limited, vague, and general information, and after being subjected to EITs became cooperative, providing much more specific and detailed information.
The best example is that of 9/11 mastermind Khalid Sheikh Mohammed. KSM’s demeanor and cooperativeness before and after enhanced interrogation techniques could not have been greater. Before EITs, he was fiercely defiant and unwilling to talk. After the techniques, he was cooperative and willing to talk truthfully and answer almost any question asked of him.
The result was a treasure trove of critically important information. KSM provided information regarding a number of plots he had been working on prior to his capture. One was a plot to blow up the Brooklyn Bridge. After he became cooperative, KSM revealed al Qa‘ida’s longstanding interest in bringing down suspension bridges in the United States. He specified the methods of destroying such bridges that al Qa‘ida taught its recruits. And, most important, he said he had instructed Iyman Faris, a naturalized American citizen from Kashmir, to destroy the Brooklyn Bridge. As a result of KSM’s information, Faris was confronted by the FBI. He was eventually arrested, indicted, and convicted on terrorism charges. He is serving a twenty-year sentence.
KSM also told us about his close associate Ammar al-Baluchi, who had been working with KSM on a number of attacks before KSM’s capture. After KSM’s capture, Baluchi assumed responsibility for a planned attack on Heathrow Airport and for multiple attacks in Karachi. He was within days of completing preparations for the Karachi attacks when he was captured by Pakistani authorities. I am convinced that KSM never would have told us about these plots without the use of harsh techniques.
Then there is the Bin Ladin operation. The first person to tell us about Abu Ahmed, the person who harbored Bin Ladin at Abbottabad, was a terrorist who was being detained by another country. This led us to ask our detainees about Abu Ahmed, and both CIA detainees subjected to EITs and those not subjected to EITs talked about him. But there is no doubt in my mind that information generated by EITs led us to push Abu Ahmed to the top of the list of leads we were pursuing on Bin Ladin. The most specific information on Abu Ahmed came from a detainee after he was subjected to EITs. And it was KSM and Abu Faraj’s dissembling about Abu Ahmed—after they were compliant as a result of EITs and during a time when they were honestly answering literally hundreds of other questions—that really put the spotlight on Abu Ahmed. If they were telling the truth about so many other matters but going out of their way to lie about Abu Ahmed, he must be really important, we figured.
To put it bluntly: without the overall detention program, we would not have caught Bin Ladin the way we did. The detention program was a necessary condition for the success of the Bin Ladin operation. And the enhanced interrogation program resulted in our putting more resources on the lead than we would have otherwise. Whether EITs were essential or not, I do not know. But they certainly helped focus attention on the man who would eventually take us to Bin Ladin’s doorstep.
In addition to information that disrupted specific plots and brought many senior al Qa‘ida operatives to justice, detainees—particularly KSM—also provided a large amount of information on the organization itself—allowing analysts to better understand al Qa‘ida, and giving our operatives clues to what would undermine the group and its capabilities. Indeed, more than 70 percent of the human intelligence information in a 2007 National Intelligence Estimate on al Qa‘ida was obtained from detainees. And nearly half the footnotes in the 9/11 Commission Report indicate that specific information had come from CIA detainees.
The fifth point is about necessity. While effective, were EITs necessary to get this critically important information or were there other, perhaps less harsh, ways to do so? Although the CIA officers on the front lines in this program believe that EITs were absolutely necessary, the Agency, including when I was acting director, has repeatedly said that this is something we will never know for sure. In retrospect, I believe this refrain is too cute by half. Yes, of course, necessity is an unknowable thing. But it is, I think, almost an irrelevant point as necessity is almost always unknowable, including with regard to tough national security decisions. Was detonating atomic bombs over Hiroshima and Nagasaki necessary to force Japan’s timely surrender in World War II? We will never know for sure. Was Abraham Lincoln’s suspension of habeas corpus necessary for the North to win the Civil War? We will never know for sure. As with these issues, historians will debate the necessity of EITs for quite a long time, and they should indeed do so.
This brings us to the last point. While the techniques were legal, effective, and at least thought to be necessary, were they the right thing to do? Was it moral to subject another human being to harsh interrogation techniques—even though they were considered not to be torture by the Department of Justice? This is a question on which reasonable people can disagree.
The Senate report on EITs gives the reader the impression that no one in the Bush administration ever considered this difficult question. That is wrong; it was considered. Senior CIA officials at the time knew, with certainty, for example, that they would face tough criticism someday because of the harshness of the techniques but they thought them necessary to protect the country. And, at one meeting of the president’s national security team in early 2003, the Agency’s senior lawyer, Scott Muller, raised the question of whether people were comfortable with EITs given the administration’s public statements that the United States was treating detainees humanely. After the meeting, Muller wrote, “Everyone in the room evinced understanding of the issue. CIA’s past and ongoing use of enhanced interrogation techniques was reaffirmed and in no way drawn into question.”
When it comes to EITs, there are two key aspects to the morality question. Is it moral to subject other human beings, no matter how evil they are, to harsh interrogation techniques, particularly when done by the country that stands for human dignity and human rights in the world? At the same time, what is the morality of not doing so? What is the morality of believing that, if you do not use the harsh techniques, you may well be making a decision that leads to the death of Americans in a terrorist attack that you could have otherwise prevented? These are complicated and extremely tough difficult questions. Some people make them sound easy. They are wrong. The Senate report did not, in any way, address this most difficult of issues.
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People frequently ask me what I would have done had I been the decision-maker, had I been the director of CIA at the time. The honest answer is that I do not know. And I don’t believe those who say that they know with certainty that they would have said no. I think it is very difficult for those who were not in the situation at that time to know what they would have done when confronted by the same set of facts with which President Bush, Condi Rice, and George Tenet were presented—because the situation was so unusual. I think that people who say that they know exactly what they would have done are not being honest with themselves.
Shortly after leaving government, I gave an interview to the television news show 60 Minutes in which my views on this complex subject were boiled down to a couple of sentences. I said in the interview that the EITs were not torture but that the techniques were inconsistent with American values and that for that reason I didn’t think they should have been done. As is often the case with television, a simple sound bite cannot convey a highly nuanced view.
In the interview I was referring to one specific technique—waterboarding. I was not referring to the entire suite of techniques. I believe that one has to have the morality discussion about each individual technique, and that is exactly what the Bush administration did. After CIA presented a range of possible techniques to the White House, National Security Advisor Rice told us one of the techniques crossed the White House’s moral line and it was not to be used. The judgments on the morality of individual techniques will, of course, vary from person to person.
I am personally troubled by waterboarding. When I served as acting director and deputy director, I made decisions about right and wrong in a very simple way. I would say yes to a CIA operation only if I believed I could, as an American, be proud that CIA had conducted the operation if it leaked and was on the front page of the Washington Post. With this litmus test, I believe the less severe techniques were perfectly appropriate. For example, I could in good conscience tell the American people that grabbing senior al Qa‘ida terrorists by the collar when they were not paying attention during an interrogation session, or even denying them sleep for prolonged periods, were the right things to do. At the same time, I have doubts that I could in good conscience tell the American people that waterboarding someone was the right thing to do. So in terms of the techniques, I believe—but again I cannot say for sure—that I would have drawn the line in a different place, all the time knowing that others, using the same litmus test, might draw it in yet another place.
But here is my moral dilemma. Based on my review of the program—done as I oversaw the Agency’s response to the Senate report—I believe that waterboarding was one of the two most effective of the all the harsh techniques (the other being sleep deprivation). That complicates things. Doesn’t it?
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After months of wrangling among the White House, CIA, and the Senate Intelligence Committee over how much of the committee’s executive summary could be released without putting national security at risk, the report was finally made public on December 9, 2014.
The press coverage was as ugly as it was predictable. Most of the attention was devoted to the most graphic descriptions of activities at some of the secret prisons. Little notice was given to the fact that most of the examples of mistreatment were those few cases where CIA officers had gone beyond what the Justice Department had authorized. In all these cases, CIA reported the mistreatment to its own inspector general, to the Department of Justice, and to Congress a decade before. Each had been investigated by DOJ—twice. The Senate report gave the impression that such mistreatment was widespread, occurred throughout the eight years of the program, and had been uncovered by Senate investigators. All of these impressions are wrong.
What was especially troublesome to me was the fact that most new organizations paid scant attention, if any, to either the report of the SSCI minority or to the CIA report—both of which debunked much of what the SSCI majority staff had written, most important its judgments about the efficacy of the program and the honesty with which CIA spoke about the program to the rest of the executive branch and to Congress. In short, most of the media, including reporters, commentators, and editorial writers, accepted the Senate’s findings as the truth—without any questioning. It was not the fourth estate’s finest hour.
In addition, there was little interest on the part of the media in two key issues that were not discussed in the Senate report—the circumstances that led the Bush administration and CIA to believe that harsh techniques were necessary or the lengthy paper trail that showed that the White House, Justice Department, and Congress were fully briefed on it. A history of CIA’s interactions with the rest of the executive branch and with Congress on the issue of EITs that was released by the CIA at the same time as the committee’s report was completely ignored by the media.
A number of senior CIA alumni—notably former director Mike Hayden, former deputy director John McLaughlin, former senior attorney John Rizzo, and former clandestine service chief Jose Rodriguez were active in the media trying to set the record straight against a narrative that Senate staffers had been preparing the press to hear for months (the committee staff actually provided the report to reporters several days before its release so that the reporters could have their first pieces ready to go following Senator’s press conference on the issue). Other former officials, led by George Tenet, created a highly trafficked website called CIASAVEDLIVES.com that brought together in one place key documents about the program. They continue to add materials to the website.
For their part, the American people shrugged the whole thing off. In polls taken after the Senate report was released and after days of the media hyping its findings, the majority of Americans said that they supported the use of harsh interrogation techniques in order to protect the lives of their fellow citizens. This view was consistent across a number of polls that were conducted.
The sun was setting on Florida’s Gulf Coast. It was late afternoon, and I was at a beach party in Naples, Florida, where my in-laws live. It was my first Christmas holiday after retiring from CIA. It was my first family trip in years without a team of security officers and communications officers. I was not thinking about CIA, national security, or any aspect of my past life.
I tend not to like parties because I do not enjoy reception-style small talk. But on this particular evening, I was introduced to someone quite interesting. One of the guests at the party was a longtime constitutional law professor from one of nation’s most elite law schools. He had taught constitutional law for decades. Knowing that I had recently participated in President Obama’s Review Group on Intelligence and Communications Technologies, the professor asked me a number of questions. He was very interested in the National Security Agency’s telephone metadata program and our group’s recommendations regarding it.
But I was interested in his views on enhanced interrogation techniques, which were also in the news as a result of the brewing controversy over the SSCI report. In one of the most interesting conversations I have ever had on the issue, the professor told me that he thought some of the techniques were indeed unlawful and that the Department of Justice had erred in its judgment. He also told me that he thought that many of the techniques were inconsistent with America’s support for human dignity and America’s leadership role in the world. And so, he concluded, he was opposed to the use of the techniques. Then came the punch line. He said “Opposed, that is, unless I were the president of the United States, and someone walked into my office and said this is the only way to prevent a massive terrorist attack that might kill hundreds or thousands of Americans. In that case, if the decision were placed on my shoulders, I would say go for it. And then I would stand up and tell the American people the decision I had made and why I made it and accept the consequences.”
To me, the law professor was in a sense describing a Lincoln moment. During the Civil War, President Lincoln violated a number of the first ten amendments to the Constitution—principles in which he believed deeply—because he thought it necessary to save the Union. What must be stressed is that these perilous decisions cannot be made at low levels. In the case of the EITs, they were not. The highest levels of the US government in both the executive branch and Congress were engaged—as they should have been.
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In discussing the EIT issue, a senior British official recently told me about an incident that occurred in World War II. In June 1940 a ship named RMS Lancastria was evacuating British troops and civilians from France. An estimated six thousand to nine thousand people were aboard when a German bomber sank the ship, killing four thousand to seven thousand people. Prime Minister Winston Churchill directed that the news be withheld from the British people and the official records were ordered sealed until the year 2040. Clearly, hiding so many deaths was not the right thing to do—and Churchill knew it, but he felt that the British people could not withstand that much bad news, and for the good of the country, he kept it from them. While the decision to employ the EITs was a much different matter, I understand why those making the decision believed it was the right thing to do.