AS THE PARTIES SWAPPED THE PRESIDENCY IN 2009, CHANGES LOOMED AT Langley. Barack Obama had opposed the Guantánamo detentions, the renditions, the hostile interrogations. The public agitation for a “truth commission” inquiry had been growing for months. During the campaign, CIA lawyers thought, candidate Obama had been withering on torture. Obama had spoken against drones too, in the past, but he had lately been silent on that, and as president, Obama became the most prolific user of Predators. However, there was no doubt of his aversion to CIA strongarm methods. Michael V. Hayden had been the face of those for nearly three years. He had to go, if only to signify President Obama’s change of direction.
It’s a measure of Mr. (no longer a general, he had retired from the Air Force the previous year) Hayden’s character that, even now, he maneuvered to tie the hands of the incoming president. The general knew the Obama transition team had begun preparing executive orders terminating rendition once and for all and ending the interrogation project. Hayden wanted to preserve them. He took aside Gregory Craig, the president-elect’s lawyer, to denounce the prospective orders. As the transition ground forward, Director Hayden pressed to make his case to Obama’s incoming national security team. Langley got its chance. After a month of jockeying, the crucial encounter took place on January 9, 2009.
On the seventh floor at Langley, the DCIA’s plush, wood-paneled conference room, the one John McCone had demanded, furnished the scene. Guests included General James Jones, a former Marine now designated national security adviser; Denis McDonough, his staff of chief; John O. Brennan, NSC counterterrorism director; presidential lawyer Craig; former agency attorney Jeffrey Smith; and David Boren, the former Oklahoma senator and SSCI chairman (and George Tenet’s mentor). They sat around a handsome table of solid cherry. Receiving them were Director Hayden with John Rizzo sitting next to him, and CIA brass, including CTC chief Michael D’Andrea, plus backbenchers. It had been in preparation for this encounter that Hayden ordered selection of a day for which he could truthfully report a certain number of detainees—because Hayden had repeatedly insisted his spooks held fewer than a hundred prisoners.
Massaging the briefing had always been a key to his success, and Michael Hayden’s reputation as a brilliant briefer attests to that. He wanted a real shot. The general quotes himself, at the outset of the Langley meeting, saying to Greg Craig, “If this was just theater, we would happily give him and his team their morning back.” The lawyer reassured him. Hayden began by insisting that the CIA did not defend torture; it intended to promote a real program. The audience perked up, Rizzo noticed, when the presentation turned to drones and operations against Al Qaeda.
Hayden jabbed at his critics, especially the senators, taking offense at their use of the word torture, then “wondered aloud why . . . they would think they had to mischaracterize what we had done.” Busy settling scores by the time of his memoir, Hayden, writing that, didn’t pause to reflect on why, if the CIA were so sure of its position, it was so necessary to express its behavior in euphemism and then that all discourse be confined to the doctored terminology. Director Hayden made his pitch: “We believe that what you think you have to do, we actually took care of in 2006.”
No reaction is recorded. According to Hayden, David Boren startled him, going beyond Dick Cheney’s notorious aide David Addington in saying that in some extreme circumstance President Obama might order the CIA to do something on his authority alone. Director Hayden refused to support that. CTC baron D’Andrea declared that he would never issue such an order. Then the back bench spoke up: “It doesn’t matter what those two guys might say; we’re not doing it.” The meeting did not end well.
On January 20, Barack Obama took office as president of the United States. Two days later, he issued an executive order requiring all U.S. authorities to enforce international conventions on torture and common understandings of humane treatment. President Obama issued a similar order on renditions. John Rizzo preserved a wedge there—at the moment of the inauguration—pointing out that if the CIA were not permitted to hold prisoners, it could have no role in handling them, rendition or not. The White House relented.
Obama still lacked his full team. CIA appointee Leon Panetta awaited confirmation. Panetta made his advance rounds—not just of the Senate intelligence committee but of former CIA directors. Mike Hayden begged him not to use the word “torture.” According to Rizzo: “Criticize the program, say it is being scrapped, but avoid that word, Mike pleaded. He told Panetta it would be a gratuitous, crushing insult to hundreds of Agency employees.” On February 5, at his first day of testimony, Panetta used the dreaded word at least twice, in the context of rendition, assuring Senators Dianne Feinstein and Ron Wyden that Obama’s order prohibited rendering detainees for torture. Feinstein instead spoke of detention and interrogation. Wyden had not been so delicate. Director Hayden went ballistic, phoning his CTC chief, who agreed with him that the agency had not done what Panetta had said. Hayden heated up the phone lines to novice White House officials. The following morning, Panetta “corrected himself,” saying, “It is my understanding that—and I want to clear up the record on this—there were efforts by the CIA to seek and to receive assurances that . . . individuals would not be mistreated and that they did receive those assurances.”
Director Panetta had just left on his first cruise in early March when John Rizzo learned from Gregory Craig that the administration had begun to consider releasing the infamous Justice Department papers justifying torture. Rizzo hastened to inform Stephen Kappes, Langley’s deputy director, who told him to touch base with former CIA chiefs. So Michael Hayden’s telephone rang again. This time, after dropping his wife off for her book club, he called the NSC staff offices from a parking lot, looking for Jim Jones, who had been a neighbor when they both served in the military in Germany early in the 1990s.
Hayden told Jones that if the Obama administration let out the torture papers, there would be no CIA operations directorate worth the name for the rest of his first term. Hayden went to see Tom Donilon, Jones’s deputy, and Craig. The White House tracked down Panetta and demanded to know why former agency directors were on the warpath. Panetta called Rizzo and ordered him to stand down, then spoke to White House chief of staff Rahm Emanuel and asked him to hold off until the current chief could have his say. The White House postponed action pending a meeting of NSC principals. That made time for Leon Panetta’s return.
Deputy Director Kappes and CTC officers won Panetta over, and afterward he argued strenuously against releasing the memoranda. The NSC principals were divided. Dennis Blair, the director of national intelligence, predicted that it would be a one-day story. With President Obama about to leave on a trip to Mexico, Director Panetta phoned Emanuel again, this time to advise the president to at least hear out the people in the trenches. Obama agreed. Panetta filled a couple of SUVs with an assortment of his top officers, including D’Andrea of the CTC, his chief of operations; John Sano, deputy to the clandestine service chief; James Archibald, deputy to lawyer Rizzo; and others. The group rushed up the stairs from the West Wing basement. Outside the Oval Office, the spooks heard Obama say, “Come on in, fellas.” However, they failed to convince the president, who released the documents on April 16, 2009.
One week before, the Central Intelligence Agency had announced publicly that it would close the last black sites. Release of the embarrassing Justice Department arguments for torture did not, after all, destroy the operations directorate. If anything it served as a plus for Leon D. Panetta, who had come to Langley as Obama’s outsider but whose fight to keep the memos secret forged a bond with agency rank and file.
Even more important, the fight over the Justice papers shows how disconnected the CIA had become from the reality of American politics. Embarrassing for an intelligence agency, to be sure, but the controversy showed it incapable of reading the tea leaves. Agency officers knew they had a problem with Greystone because torture is illegal and immoral no matter what the Justice Department says. That was why Langley demanded that it be spoken of only as “enhanced interrogation” and other euphemisms. Somehow, though, CIA officers could not see through their own fears to the thought that Americans might be seriously upset by torture committed in their name. In the spies’ looking-glass world, the spymasters rule the people, rather than the Central Intelligence Agency serves Americans. Michael Hayden, George Tenet, and Porter Goss all pretended that the agency had not tortured and acted as if questioning the spooks was improper.
The truth—what the CIA is supposed to speak to power—lay elsewhere. Obama entered office on a wave of political pressure for a truth commission to reveal the security services’ actions. The Congress already knew of detainee interrogation problems. Staffers from SSCI were at the point of finishing their preliminary review. By 2009 the congressional committees had access to the Justice Department memos and could see the discrepancies between CIA action reports and what the DOJ papers supposedly justified.
Barack Obama resisted a truth commission. He wanted to move the intelligence war ahead, not dwell on the past. Obama’s problem lay in how to placate Americans who wanted to blow the whistle, who demanded the commission. More than that, the American Civil Liberties Union (ACLU) had long since filed suit to declassify a wide range of secret documents pertaining to Greystone, including the Justice Department memos. In the spring of 2009, the courts were about to adjudicate that case. John Rizzo discovered that, unlike George W. Bush’s lawyers, who’d been confident they could stonewall, Obama officials calculated that the ACLU stood on the verge of winning.
Suspended between releasing the Justice papers—and claiming credit, with “case closed” and all of that—versus the documents coming out at court, the administration chose the former. Stonewalling would gain no political points, with perhaps a greater firestorm in public opinion because of the continued intransigence.
Agency folk also despised other Obama decisions—one, to declassify more of John Helgerson’s report on the detainee program (more, again, would be released under court order, to the ACLU in June 2016); second, in August 2009, to widen the scope of the Justice Department examination of Jose Rodriguez’s decision to destroy the videotapes, expanding it to incorporate a wider inquiry into whether the torture had violated federal law. President Obama and Attorney General Eric Holder gambled that these cosmetic concessions might permit them to slide past the political dilemma.
Congress also remained alert to the politics of the CIA’s problem. At his nomination hearings, besides the usual questions on whether he would be responsive to oversight, Leon Panetta had to field specific queries as to how he would treat the agency’s inspector general. Early in March, the House intelligence committee had a full-scale session on the detainee program with Panetta and Michael J. Sulick, Langley’s operations boss. About a week earlier, on March 5, the SSCI had voted to initiate a detailed investigation. This would not be a truth commission; it would be a closed inquiry, without the public testimony that had bedeviled Langley with the accountability threat during the Church Committee era. Arguments about secrecy and responsible oversight won the day at the Senate intelligence committee. Americans would have to be satisfied.
The story of the Senate torture investigation brings us to the Flying Dutchman, the ghost of CIA’s future.
A FAILED RECONCILIATION
Director Panetta understood Langley’s problem with Congress. He had been on both sides of the White House–Capitol Hill divide, as a California congressman and in several key posts in the Clinton administration. Feathers were still ruffled from Hayden’s time at Langley. Legislators made hay from attacks on the agency. Hearings took the form of senators and representatives seated on high, bellowing questions at helpless witnesses. Panetta reminded the legislators he had been cut from the same cloth, having spent a decade and a half in the House of Representatives, starting in Jimmy Carter’s day.
Langley’s chief also took the advice of his congressional liaison and tried to sweeten the atmosphere, inviting the overseers to Langley to converse around a table over coffee. (Panetta’s later deputy Michael Morell attributes this idea to Dianne Feinstein.) Senator Feinstein, for sure, brought the donuts—Krispy Creme glazed. A likable character with the air of a working stiff, Panetta was quickly on better terms with individuals, and because he hastened to brief the oversight committees on everything that came up, figures on the Hill gradually relaxed. So did Panetta, who soon matched Alex McCone’s weekend trips to California, playing golf with associates when obliged to stay in Washington. Like Michael Hayden with his Pittsburgh Steelers, or many agency underlings with the Washington Redskins, Panetta was a big football fan—of the San Francisco 49ers.
Some controversies were wastes of Panetta’s political capital. One that consumed too much ink would be the fracas over whether Speaker of the House Nancy Pelosi had been briefed on CIA waterboarding in September 2002. Answering a question at a news conference, Pelosi denied it. Panetta made a distinction “between respect and subservience,” he records, and would not “simply roll over.” Aides showed him records of a September 4, 2002, briefing where Pelosi was listed as present. Director Panetta ordered preparation of a list of congressional briefings on the program, declassified it, and thought he had caught her.
Not that there weren’t fires in the in-basket. Only a month later, operations officers told the director of Project Cannonball, the DO scheme to create a permanent standby murder capability like the ZR/Rifle unit of President Kennedy’s day. Whether or not Pelosi had been told of waterboarding when the CIA claimed, the agency had never told Congress about Cannonball, including the fact that personnel of the private security firm Blackwater had been participants. Vice President Cheney reportedly ordered that Congress be kept in the dark. Project Cannonball remained on the books when Panetta learned of it. He immediately canceled it, despite Stephen Kappes’s protests. Panetta went to tell the Hill the next day.
But Langley’s defining experience came with the Senate intelligence committee’s inquiry into the CIA torture program. On February 11, 2009, the Senate staffers who had looked at the CIA cables reporting on its videotapes were ready to brief on what they had seen. Daniel Jones and Alissa Starzak’s record demonstrated major differences between what the cables described and the “enhanced interrogation techniques” of which Congress had been told. One chart in particular, detailing more than a fortnight during which Abu Zubaydah underwent the most intense “techniques,” shocked the senators. On March 5, the SSCI voted 14–1 for an investigation. Chairperson Dianne Feinstein approached Director Panetta for agency documents. The Senate committee wanted everything—background information on Greystone decisions, details of interactions between the CIA’s general counsel and the Department of Justice, the records on creation of the black sites, and claims for the effectiveness of the methods. Langley officials believed they were talking about hundreds of thousands of documents.
To some degree, Leon Panetta became the prisoner of agency secrecy hacks. They were the professionals. He was not. Panetta objected vociferously when Feinstein wanted access to a wide range of materials. Feinstein, just as angry, retorted that the CIA would face subpoenas otherwise. “Feinstein’s staff had the requisite clearances,” Leon Panetta recalls. “We had no basis to refuse her.” Nevertheless, the CIA director wanted control mechanisms, so the sides met, corresponded, and negotiated access.
The spooks tried hard to obtain an arrangement similar to what the agency had enjoyed with the Church Committee in 1975: congressional investigators would have to come to the CIA, not have material delivered to them on the Hill. It didn’t matter that the Senate intelligence committee had a “skiff”—a Special Compartmented Information Facility—the equal of anything at Langley. As a matter of fact, the SSCI staffers would not even be going to Langley. Rather, the agency furnished a “reading room” at a remote location in northern Virginia. There the CIA installed computers providing for a shared network, one side for the SSCI people, the other for the watchdog unit the agency set up to keep an eye on this investigation. The spooks called this the Rendition, Detention, and Interrogation Network, or RDINet.
The secrecy mavens tried to get Senator Feinstein and her colleagues to agree to a memorandum of understanding. They dressed this up as a big concession “to avoid protracted litigation over subpoenas and in a spirit of cooperation.” On this basis, Langley wanted Senate acknowledgment that the computers, the documents, the work space, and everything else belonged to the spooks. After some arguments with SSCI on the requirements, the CIA proposed an understanding that investigators could create material on their portion of the shared network, but anything they took away from the reading room, including their own work, could be reviewed and censored by CIA officials. No agency material could leave at all. The reading room could be used only during business hours, Monday to Friday. No late nights or weekends. Langley wanted to limit access to ten persons at most and said that everyone should sign a CIA secrecy agreement.
No way was the Central Intelligence Agency going to get away with this in 2009. The torture program, already quite controversial, with obstruction-of-justice charges under investigation, would not have held up five minutes if the CIA went to court to quash Senate subpoenas. The litigation would not have been “protracted.” At the end of it, Langley would have been under court order to hand over the material. Who knew where that might lead? Moreover, right after this proposal—an exercise in self-protection—the Cannonball hit-squad disclosure tarnished the CIA even more. The agency needed to deflect this outcome. Panetta saw that, even if his staff did not. There is no evidence that the “understanding” was even shown to the Senate committee.
Instead, on June 2, the SSCI chairwoman and her vice chairman sent a letter to Director Panetta laying out their own vision, covering some of the same ground. The SSCI wanted access for fifteen staff, plus all of its members, the staff directors and deputies, and their majority and minority counsels. Documents that Senate investigators created in the reading room would be SSCI property, and the CIA could not collect them, copy them, store them, or use them for any purpose.
The Senate committee agreed to forgo intelligence from sources other than the CIA documents, including espionage reports, electronic intercepts, and data from foreign spy services, even the contents of military prisoner debriefings. In its report, the Senate would use pseudonyms or otherwise protect nonsupervisory CIA officers, liaison partners, black sites, or cryptonyms on materials they took away from the reading room. There would be no special secrecy agreements.
Panetta replied immediately, accepting some points, disputing others. After more discussion, on June 8, the CIA sent a further reply stating that the main outstanding difference was the agency’s continued demand for the right to review all notes, drafts, and final reports, wherever prepared, based upon its having given the SSCI operational records. Langley agreed that its employees would have no access to the reading room hard drive except for maintenance by information technology staff. The Senate committee continued to resist a CIA right of review. On June 12, Director Panetta sent the SSCI a letter acknowledging completion of final arrangements, reporting that a hundred thousand pages of documents were already waiting in the reading room.
Langley’s boss thought he had a good deal. He did not bother referring it to the Obama White House. Suddenly he was summoned downtown. Panetta brought Stephen W. Preston, the CIA’s newest gunslinger, for what quickly became a bitter confrontation. They met in the Situation Room. The group included Admiral Dennis Blair, the director of national intelligence, NSC staffers Tom Donilon, John O. Brennan, and Denis McDonough, and Obama staff chief Rahm Emanuel.
Emanuel expressed fury. “The president wants to know who the fuck authorized this release to the committees,” he growled, pounding the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”
Admiral Blair piled on. “If the president’s hair is on fire, I want to know who the fuck set his hair on fire!”
Leon Panetta had known Rahm Emanuel a long time. A politician himself, he could read Emanuel’s moods well. Panetta guessed that the chief of staff had played to his audience, that maybe President Obama had concerns, but that John Brennan and Denis McDonough were the real bogeymen.
Soon the CIA director clashed swords with Brennan, the NSC counterterrorism boss. They were still arguing when White House officials finally realized they were facing a done deal. Langley and the SSCI had an arrangement. No one could take that back.
Therefore the secrecy hacks at Langley put together another list of restrictions, eighteen points that would have severely limited the inquiry. Again there is no evidence that it was ever shown to anyone. Leon Panetta’s reconciliation failed as badly as had George Tenet’s exorcism.
INQUISITORS VERSUS COUNTERSPIES
Next came the actual investigation. Senator Feinstein asked Daniel Jones, reviewer of the videotape cables, to lead the team. That preliminary had mostly concerned the cases of militants Abu Zubaydah and ‘Abd al-Rahim al-Nashiri. Jones’s colleague in that heartwrenching work had been Alissa Starzak, who now stepped into the shoes of main assistant.
Jones had been an FBI terrorism analyst before joining the SSCI staff. Starzak had put in a couple of years in John Rizzo’s CIA office. Their “dive” this time would be much deeper, covering the entire detainee program. Evan Gottesman and Chad Turner were other principal analysts. At various times, fifteen more researchers joined them. Senate committee staff director David Grannis supervised. The investigation kicked off on June 22, 2009. It goes unrecorded whether anyone noticed that that was the date of two invasions of Russia—Napoleon’s of 1812 and Hitler’s of 1941. An inauspicious date.
For its part Langley hastened preparations. Director Panetta issued an order requiring preservation of records for the interval between 9/11 and January 22, 2009, the day when newly inaugurated President Obama officially terminated the hostile interrogations by executive order. A CIA special review team (SRT) with shadowy functions filed regular reports on the proceedings. The RDINet team took care of the computers and watched what the Senate investigators were looking at. They, too, compiled reports, so-called weekly case reports (WCRs) updating Langley officials on what the investigators had examined. The SRT and WCR papers became central to the torture dispute.
Senior officials in the director’s review group guided the response. A major part there went to the Office of General Counsel, the gunslingers. In October 2009, Daniel Jones and colleagues went to agency headquarters to interview people in the Inspector General’s Office. They found top CIA lawyer Stephen Preston barring the hallway. Preston insisted on monitoring any conversation the Senate investigators had with agency personnel. Jones and company ended up back on the street, their mission a complete flub.
The general counsel controlled the machine interface too. Langley recruited people for Panetta’s task forces under OGC direction. The computer whizzes for information technology were from the same contractor that served the Counterterrorism Center, and CTC officers wrote their efficiency reports. Substance experts were primarily agency retirees hired back for this investigation. Senate investigators encountered active hostility.
Key elements that would undermine the investigation were already in place. Panetta ordered that no one at CIA consent to be interviewed so long as the Justice Department continued its investigation of Jose Rodriguez for the tapes affair or other agency officers for abuses during interrogations. The order pleased Republican members of the intelligence committee.
The technology whizzes designed a system the CIA called Spartan Gate. So far as the Senate understood, Spartan Gate would be a two-sided database with the sides walled off from each other. The Senate committee’s side would include the committee’s summaries, notes, and reports, plus whatever documents investigators chose to copy. Langley’s side contained the pool of documents, constantly refreshed, which SSCI investigators were permitted to see.
But that wasn’t the whole story. The Spartan Gate firewall would not be impervious after all. The RDINet team’s side of the system had more capability than the agency let on. The investigators’ machines were modified standard agency workstations. For counterintelligence and other reasons—especially since the spy Aldrich Ames—system managers have access to monitor activity on any workstation. For another thing, Spartan Gate had software to track which documents in the CIA pool the Senate investigators actually accessed. That enabled the RDINet team to compile the weekly summaries for higher-ups. Langley’s inspector general later found no evidence the Senate had been told of these features of their computers.
Between the special review team reports and the weekly case reports, agency analysts began speculating as to what a reasonable person might conclude based on the CIA documents the investigators consulted. Panetta says he didn’t see any analysis in these summaries—eventually known as the Panetta Review—but there should be no doubt that the practice began well before the summer of 2011, when Leon left to head the Pentagon, because the Senate investigators discovered the Panetta Review before then. Analysis of what the Senate had been up to required more data from the SSCI side of Spartan Gate, so the CIA yielded to the temptation to breach the firewall to serve the interest of the director’s review group and the CTC.
Another element of controversy entered the picture in the summer of 2009. The Department of Justice widened its inquiries to include individual cases of alleged torture. In mid-September a group of former CIA directors—including Hayden, Goss, and Tenet—sent Obama a joint letter objecting to the Justice Department action. On October 9, because Justice’s reviews could conflict with the Senate investigation—again the Iran-Contra precedent—Director Panetta instructed CIA officers not to agree to Senate committee interviews. At the SSCI, the Republican minority withdrew from what had been a bipartisan investigation. Democrats carried on alone.
Nothing about the investigation retarded the CIA’s secret war against terrorism. Director Panetta’s White House appearances were most often for the purpose of participating in NSC principals meetings, which set strategy for the secret war. The first big hurdle was the air campaign. Bush had already stepped that up, but Obama wanted both a greater weight of attack and more precision to reduce collateral damage. The Air Force lacked the Predator capability the strategists wanted. Prodded by defense secretary Robert Gates, it eventually multiplied its force manyfold. Stephen Kappes, sitting on the Deputies Committee, chaired by White House counterterrorism czar John Brennan, helped make the operational decisions. Drone strikes increased exponentially.
In the middle of all this, with Counterterrorism Center mavens racking their brains for intel sources to replace detainee interrogations, the Jordanian General Intelligence Directorate told Langley of an agent in the Haqqani network. The opportunity seemed heaven-sent and, as related in our story of agency meteor Jessica Matthews, it was. The mission at FOB Chapman became a huge disaster. President Obama came to the agency. His previous visit to Langley had been to quiet a workforce in uproar over release of the Justice Department legal memoranda. The drone war over Pakistan escalated with calculated fury, starting days after the Chapman attack.
During Obama’s first year, his political problem had sharpened, and not in the anticipated direction. He had managed to skirt calls for a truth commission, but the byplay had effectively created a new political pressure group. You could call it the “League of Former CIA Chiefs.” Agency wags just called them the Formers. Their letter to Attorney General Holder marked a sort of founding event. Obama officials had already complained of the activities of this group. Then came the attack on Firebase Chapman, with its heavy toll providing ammunition to critics of Obama’s CIA policy.
Leon Panetta considered it among his more important tasks to be “ridding ourselves of a destructive relationship with certain contractors.” Some at Langley deplored breaking this tie. The Mitchell Jessen Associates consultancy would finally be terminated in mid-2009, to be closed out in 2010. By that time the psychologists had been paid $75 million. There were additional payments of $5 million for a legal indemnification agreement protecting Mitchell Jessen. Under this agreement the CIA is responsible for the torture shrinks’ lawyer bills until 2021. The company immediately hired a high-powered firm when it came under scrutiny in 2007. By 2012 Mitchell Jessen had billed the CIA $1.1 million in legal fees. In all, the tab came to $81.6 million.
That was before October 2015, when the ACLU brought suit against Mitchell Jessen on behalf of three former CIA captives, Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaidullah, in the Ninth Circuit of the United States Court. Defense motions to dismiss failed in April 2016, and in June Mitchell and Jessen served subpoenas on the CIA for evidence in their defense. Naturally the government resisted, and the psychologists asked for an order to compel a response. Agency officers John Rizzo and Jose Rodriguez were deposed in the case. In October the court quashed parts of the subpoena but ordered the CIA to produce additional contract material. At this writing, the suit is headed for court, with the agency on the hook for the bill and on the slab for the secrets revealed at trial. The odds are high that this case, scheduled for June 2017, will be settled out of court. The lawyer bills have only begun. The firm Blank Rome represents defendants Mitchell and Jessen.
Properly speaking, the $40 million that Langley spent to restrict and inhibit the Senate intelligence committee investigation should be added to this bill.
Just to put some context around these figures, in its rebuttal to the Senate intelligence committee’s report, the CIA specified that if it had exercised every option under the Mitchell Jessen contract, more than $180 million in charges would have accrued. However, the CIA also noted that its total expenditures for Project Greystone from 2001 to 2006 were $246.4 million. Put another way, the rampaging psychologists cost the CIA one third of everything it spent on the capture, rendition, detention, and interrogation of Al Qaeda suspects—and that was before the court trials. The money Langley spent to inhibit the Senate investigation represents another sixth of the entire torture program. If you don’t think the nation got its money’s worth, here’s a number that should lift your eyebrow: Mitchell Jessen plus the never-used black prison in Morocco ($55 million) add up to more than half of the CIA’s spending for torture and detention.
In 2015 the American Psychological Association repudiated the ethics guidelines under which all this had taken place—a factor in the ACLU’s conclusion that the matter is ripe for adjudication. The psychologists adopted a resolution that its professionals should stay out of government interrogation programs in any form. James Mitchell and Bruce Jessen will not be able to do again what they did. Kafka would still not recognize this as one of his plots.
Meanwhile the pages were piling up in Spartan Gate. After the first hundred thousand came more, documents by the thousand and tens of thousands. The heap surpassed 4 million pages in 2010, and reached 6.2 million when the data dump ended in July 2012. And the data really were “dumped”; they arrived in tranches reflecting no more than the order in which the CIA considered items for access. The mass was not organized by date, subject, case, or in any other way. Naturally this hindered analysis. SSCI soon asked for a search tool.
The RDINet team installed a modified Google search program in November 2009 but made a key error. The tool, programmed to scan the file universe, listed items on both sides of the firewall. Senate investigators could discover files on the CIA side of Spartan Gate. Even when the system denied access, the URL addresses of documents could be pasted into a toolbar, and the documents would open, then could be saved in SSCI’s cache.
But the shenanigans started on Langley’s side of the firewall, not the Senate’s. In January 2010, CIA system managers surreptitiously removed 874 items from the cache. In March Dan Jones’s investigators began noticing that things they had accessed previously were missing. On March 12, Jones met with White House lawyers, who said they knew nothing about it. In May the RDINet team took out another fifty-two documents. They removed nearly ten thousand pages. This time Senate investigators reacted immediately. Agency staff at first denied that anything had been removed. Then they claimed the tech consultants had taken the stuff without orders or permission. Then the CIA switched to saying that the documents had been removed on White House instructions for a determination as to whether to claim executive privilege for them.
On May 12, senior Senate staff responded acridly: “Our understanding of the agreement we reached with you last year was that the computer system on which the Committee would be working would be accessed by CIA personnel for purely administrative, IT actions. CIA’s actions in removing documents from our system are unequivocally not administrative.” The SSCI argued that material made available, even if in error, had been handed over and should remain untouched, that the CIA ought not to unilaterally access documents on the committee side of Spartan Gate, and that it should not unilaterally remove or alter them. The reading room monitors from Langley answered this would never happen again.
Alerted by her investigators, Senator Feinstein went to the White House counsel. There Robert F. Bauer had replaced Greg Craig. Bauer, chief counsel to Barack Obama’s 2008 campaign organization, knew the California senator. She had offered her good offices—along with her apartment with some Napa Valley wine thrown in—for the make-nice meeting where Obama smoothed Hillary Clinton’s ruffled feathers, enlisting the presidential candidate he defeated for the 2008 nomination, to work for his own election and subsequently to become his secretary of state. Now Senator Feinstein wondered if she needed to call in the favor. Bob Bauer had no idea what she was talking about. White House counsel had issued no orders pertaining to executive privilege in the CIA documents. Of course, there were nearly fifty lawyers and staff in the counsel’s office, so it could have been someone else. A mystery.
One obvious possibility is that Langley really was responsible for the deletions and tried to pass them off as a White House gambit. This seems unlikely. Director Panetta had too much riding on his relations with the Congress to permit a move like that, while the officials responsible for Greystone were retired and had no authority. E-mail messages exchanged during these events also point a finger. On May 13, a staff lawyer commented to acting top attorney Robert Eatinger, “The White House is not inclined at this point to ask CIA to categorically replace all the documents that were pulled, in large part because the mistake was clerical in nature.” That’s obvious nonsense for if the mistake was “clerical,” what is the harm in returning items to the cache? Moreover, if the documents were removed in error, why did the White House then demand to see them to make executive-privilege determinations? Conversely, given the tight control of political interests exercised in the Obama White House, it is hard to conclude that its lawyers might be unaware of instructions to Langley to suppress documents. After a few days, the CIA’s liaison apologized to the SSCI, but there were still no documents.
Nearly a month afterward, on June 7, a CIA lawyer noted,
Occasionally in the course of the White House’s review of EP [executive privilege] documents, they will come across a document they believe may already be in the reading room (as part of a different batch) and have asked us to check, so they don’t assert EP over a document that has already been produced. Prior to last month’s events, the SOP was to check the reading room’s holdings (electronically—not physically) and let the White House know.
The attorney asked his superior if it was OK to continue that practice and reminded him that several requests were pending. The answer would be that searches should check only whether specified documents were already in the reading room.
Disturbing aspects in this investigative crisis are apparent here. First, the e-mails unveil the fact the RDINet team did access the Senate side of Spartan Gate, and that they used it routinely to check for White House–requested items. Second, they show that White House involvement had been real, not fancied. Timing is still an issue. It may be that the “White House’s review” only followed Feinstein’s complaint to Bauer. But it could also be that the inquiries had been taking place all along. That fits with the two bursts of document removal.
There is no evidence that the White House actually made any judgments on executive privilege, ever. Ten thousand pages were removed from evidence, whereupon the White House sat on them. The most likely source of pressure at 1600 Pennsylvania Avenue would have been the NSC staff and, within it, John O. Brennan. During the early days of the torture program, Brennan had sat at Tenet’s right hand. He’d been CIA chief of staff, then deputy executive director. In April 2003, when an interagency Terrorist Threat Integration Center (now called the National Counterterrorism Center, distinct from the CIA’s Counterterrorism Center) formed at President Bush’s behest, Mr. Brennan became its first director. That moment coincided with Abu Zubaydah’s detention and the dawn of the black sites. Brennan has always admitted to having seen some papers on the project, but insisted he was not in the chain of command, his knowledge incidental, and he had opposed Greystone. Documents showing otherwise would be very damaging. Papers showing him right? No reason they shouldn’t come out.
The Senate intelligence committee, unaware of any posturing, tried to forge ahead. Dianne Feinstein relied upon Bob Bauer to reach a modus vivendi with Langley. The agreement reaffirmed the prohibition against CIA access to the Senate side of the reading room and its material in Spartan Gate. Much of the agency’s computer team acting as counterparts to the investigators turned over that summer and the new people displayed little of the hostility of their predecessors. Nobody enforced the rule about working hours anymore.
In the fall of 2010, a Senate investigator discovered that the Spartan Gate search tool could show things on the CIA side of the firewall. Rooting about over there revealed some portion—we don’t yet know how much—of the Panetta Review, the summary reports compiled on what Senate investigators were accessing. The first known access took place on November 9. Chief investigator Jones learned of the “review” immediately. According to the agency, Senate researchers jumped the firewall thousands of times before they switched to writing their report. Feinstein and her colleagues were stunned to discover that CIA officers drew the same conclusions they did, even while Langley brass maintained its front that its methods had been legal, responsible, and useful. That discrepancy gave the lie to agency explanations.
Langley’s monitors discovered the penetration when an investigator asked for a certain videotape. RDINet people could not identify the material, whereupon the Senate researcher directed them to files in their own cache referencing the item. This revealed that the SSCI had been on the agency side of Spartan Gate. Langley denied the request; managers told RDINet that the responsible office had already inventoried its holdings and given the SSCI those portions deemed relevant. This demonstrated that officials were making spot decisions on what might be relevant to the Senate torture investigation. It also disclosed that videotapes existed other than the ones Jose Rodriguez conspired to destroy. Those bombshells might come out in a fracas over the firewall. Also the techies argued that the search tool could not easily be modified. For the moment, sleeping dogs were left to lie.
Meanwhile, agency officials repurposed Leon Panetta’s order to ensure the preservation of agency records between certain dates. Langley subsequently maintained that Senate investigators were entitled to view only materials originated between those dates, a debatable proposition that would figure in a huge scandal.
THE DUTCHMAN HOVES IN SIGHT
As the Senate investigation proceeded, on the operational side, the CIA continued closing in on Osama bin Laden, uncovering intel that led them to suspect a compound in Abbottabad, Pakistan, as the terrorist’s hideout. From what we know of Langley’s efforts to prove its suspicions, which included renting a house down the road for an observation post, information collection was under way by the time SSCI investigators encountered the Panetta Review documents. The U.S. Special Operations Command had the time to build a replica of the Abbottabad house and rehearse a raid on it. John Brennan’s NSC Deputies Committee was meeting two or three times a day during the final preparations. Vice Admiral William McRaven briefed his plan to President Obama and the NSC principals and demonstrated it in rehearsals. On May 1, 2011, a platoon of SEAL Team 6 attacked the Abbottabad compound in Operation Neptune Spear, killing bin Laden and seizing computers, documents, and other intelligence material.
The next day, newly promoted CIA deputy director Michael Morell led an agency team to brief Senator Feinstein’s committee. On May 4, Director Panetta took the lead and met with both oversight committees. Langley continued to bask in the sun with additional briefings in the following days. This became important when current and former CIA officials began claiming that hostile interrogations yielded the intel that enabled the U.S. to kill bin Laden. The Senate committee held hearings and found that multiple streams of intelligence actually had contributed to Neptune Spear. This point of difference aggravated the SSCI investigators.
Leon Panetta left Langley not long after the raid. President Obama asked him to lead the Department of Defense when Bob Gates retired. For the CIA, the president named David Petraeus, famous for his generalship in Iraq and Afghanistan. Michael Morell continued to represent the agency on Brennan’s NSC Deputies Committee. With Obama adopting a “surge” strategy in the Afghan hills similar to what Bush had done in Iraq, and with the CIA increasingly militarized from its role in the drone war, this seemed a good fit. But Petraeus lasted barely a year. He had recorded classified information in journals he let his girlfriend see. She authored an admiring biography of the general. Petraeus resigned in November 2012.
Drone attacks were being justified under secret legal memoranda of the same sort as backed the interrogations. The secrecy became especially painful in 2011, when a Predator deliberately targeted an American citizen and another drone killed his son a few weeks later.
Anwar al-Awlaki had been a popular Muslim cleric on both the East and West coasts. At some point he became radicalized, morphing from chat-room and social-media star to bombmaker and terrorist planner in Yemen. Regardless of misdeeds, however, the Constitution affords protections to American citizens, so legal arguments for extrajudicial killing are problematic. As the Bush administration had done with its torture memos, Obama’s people did with the drone papers. Protests mounted. Officials tried to paint justifications in broad brush, avoiding any specifics about laws. The State Department’s legal adviser gave speeches along this line. Then came John Brennan, who, as White House adviser atop the drone war, had the most credibility. Brennan gave a speech at the Wilson Center in 2012 that retailed a “lite” version of the legal arcana, emulated by State Department counselor Harold Koh. The administration contrived to leak a watered-down version of its brief excusing the Awlaki killing, then the State Department issued a white paper on the subject.
Senate investigators continued to plug away in the reading room. Gradually their focus changed from wading through the material to crafting the report. A first section rolled off the printer in October 2011. By the summer of 2012, writing was the main task. Into the fall they sat at the keyboard. As sections were finished, Feinstein distributed them to all the members of the intelligence committee, including the Republican rejectionists. No one would be blindsided here. In August, Attorney General Holder announced that he had halted further inquiries into criminal jeopardy for CIA interrogators. That November, an SSCI investigator noticed that the Spartan Gate search tool had been indexing Senate draft papers on both sides of the firewall, and the SSCI informed RDINet of this fact.
Michael Hayden’s phone rang. George Tenet came on the line. He asked if Hayden knew about a Senate report. The ex–spy chief answered that he had heard of it but basically knew nothing. On November 8, a group of former CIA bigwigs gathered at Langley to hear about the Senate intelligence committee investigation. George Tenet, John McLaughlin, Porter Goss, and Michael Hayden all attended. Michael Morell, who had worked for all of them except Goss, gave the briefing, describing the draft report. “We were more than a little stunned,” Hayden recalls. Angry too. They—the Formers—began to organize their response.
One more mystery here, by the way: there was no SSCI report on November 8, 2012. Dan Jones and his team were still putting finishing touches to the draft. That work presumably took place on computers in the reading room. The report wouldn’t go to the committee for another month. It would not exist as a document until the SSCI approved it. Where did the CIA obtain its early copy of the Senate report? It is possible Langley got the report in sections from some friendly senator, or the agents may have put it together from the draft portions acquired via Spartan Gate.
The fateful day came on December 13, 2012. The Senate Select Committee on Intelligence met to consider its report on the CIA detention and interrogation. Room 217 of the Hart Office Building is secure and shielded to permit conversations that cannot be bugged. Senator Feinstein wanted this vote right away. One Republican senator, Olympia Snowe of Maine, had been a supporter of the investigation, but she was retiring. Her vote would take the result beyond mere party line. Senate majority leader Harry Reid also attended and spoke to members. Reid told the SSCI and its staff that their work stood as the most important intelligence oversight action since the Pike Committee report of the 1970s. Minority leader Mitch McConnell, a Republican from Kentucky, who counted as an ex officio member of the SSCI, would be angry that he had not been invited, though how he could have kept Olympia Snowe in line was anybody’s guess. She was famous for voting her conscience and she was headed out the door.
An executive summary with front matter plus three volumes of content made up the study. One volume dealt with the history and operation of Greystone. At 1,539 pages, it was the shortest. A second tome focused on “effectiveness” and tried to evaluate how much had been learned from each detainee, what the CIA had represented about that, and what contribution the data had made to Bush administration claims. The third volume concentrated on the treatment of the prisoners at the black sites and the agency’s day-to-day management of the prisons. Altogether there were nearly 6,800 pages and a stunning 38,000 footnotes.
The senators cast ballots. By a 9 to 6 vote, they approved the SSCI report and put it out for comments. Senator Feinstein wanted all comments in hand within sixty days. The committee rounded that out to February 15, 2013. Republicans filed their individual views and minority report on time. The CIA did not.
With Petraeus gone, Mike Morell carried the water as acting director of the Central Intelligence Agency. He spent the weekend of December 15 at his Langley office, paging through SSCI’s executive summary. Like Hayden reflecting on the briefing of the former directors, Morell used the word stunned. Later he remembered thinking, “If even half of this is true, this is awful.” The first thing Deputy Director Morell did would be to task Langley’s Center for the Study of Intelligence to produce a study of the interactions between the CIA and Congress on the detainee program. Both the scope and depth of the SSCI study were impressive and were going to require a major-league response. And the Senate committee wanted feedback in sixty days. Morell decided the best way to assemble a response would be on a dual track: the Senate committee had cast twenty key conclusions, so the agency would “drill down” on each one and critique it. But the larger effort would be to take apart SSCI’s analysis of the actual intelligence provided, because the Senate’s arguments regarding effectiveness and phony agency claims hinged on individual detainee cases.
Deputy Director Morell picked top-flight officers for his rebuttal squad. The requirements were that they be sharp analysts and had had nothing to do with torture. Officers were assigned narrow subjects—for example, one SSCI conclusion or a single detainee’s case—and asked to trace that piece of the puzzle through all the Senate’s material as well as any CIA documents they needed. As results began to come back, Morell took his chief of staff, Gregory Tarbell, off routine duties just to coordinate the response and scrub the reply. Tarbell prepared Langley’s overview paper covering the two sections of substantive material. Though the deputy director considered Tarbell one of his most brilliant officers, even he needed to paper his office walls with large sheets to help keep track of the elements in the CIA’s story.
Mr. Morell expressed dismay at the Senate report. His substance analysts agreed there were valid criticisms from Greystone’s early days, but Langley viewed the majority of the Senate’s conclusions as simply wrong. The agency objected most to rejection of the effectiveness of hostile interrogations, which officers insisted had furnished a host of intel treasures.
The CIA did not actually hand over its comments until the summer of 2013. Morell deliberately decided to digest the report and complete his review before engaging Capitol Hill. He faulted the Senate report on fact, logic, and context, and met with Dianne Feinstein to relate those objections, warning her the Senate’s report was studded with examples of the kinds he described.
By then observers among the public were accusing Langley of footdragging to delay release of the Senate report. Meanwhile, the CIA had a new director, none other than John O. Brennan, who had earned Barack Obama’s trust as early as the transition before his inauguration, and whom the president had previously been dissuaded from putting in charge of the agency because of his own links, however minor, to torture. Brennan met with SSCI officials on June 27 to give them the CIA rebuttal document. Subsequent encounters brought together his analysts with SSCI investigators to hash out evidence on various disputed items.
More than a dozen times, adding up to sixty hours, Dan Jones butted heads with agency defenders. To Brennan’s distress, his champions hardly dented the Senate’s account.
At one of these sessions, for example, Senate investigators displayed CIA photos of waterboards ready for action at the Salt Pit in Afghanistan (Site Cobalt in the report). The agency had kept every record of Cobalt secret, possibly because a detainee had died there of hypothermia. Jones had CIA pictures of a waterboard at another site where the CIA had not admitted to using them. Pails of pink liquid were on the floor next to the thing. Langley’s experts could not account for the discrepancies.
The review meetings dragged on through August 2013 into September. The Senate did indeed amend its report where necessary, but Senator Martin Heinrich later said that the CIA caught his investigators in just one factual error, a minor one that the committee corrected. But in many more instances, SSCI examined the CIA’s countervailing evidence, debunked Langley’s claims, and affirmed its original account. A typical example concerned the hunt for bin Laden, which takes center stage in many agency claims for the efficacy of torture. Langley’s rebuttal attributes key data that helped identify the Al Qaeda leader’s courier to interrogations of Abu Zubaydah, and Khalid Sheik Mohammed later, using strong-arm methods. However, CIA records that the Senate examined revealed that no one questioned Zubaydah about the courier until July 2003, even though his name and cell phone number were in Zubaydah’s notebook when captured in March 2002. On October 25, 2013, the agency confirmed in writing that the Senate report, not its response, had been accurate.
Hot under the collar, CIA officials time and again proclaimed their refutation authoritative only to admit time and again to error. The refutation document would be published in book form with the title Rebuttal. Nowhere did the CIA’s response actually come close to a genuine rebuttal. Stephen W. Preston, Langley’s gunslinger, reviewed the paper from his perch as general counsel. Preston’s suggestions went mostly to presentation. As for substance, his evaluation was humble: “I see the response not as a rebuttal to the study or as any kind of counter-report [which is precisely how agency people represent it] but as comments on the study for the Committee’s consideration.” Langley’s gunslinger expressly contradicts two rebuttal claims—that the agency kept Congress “fully and currently informed” and that it provided adequate notice of the Justice Department opinions. Preston admits that the agency did furnish the oversight committees with “inaccurate information related to aspects of the program of express interest to Members.”
Langley’s objections were a pastiche. Take Morell’s criticisms of fact, logic, and context, for example. He objects to the statement that the CIA restricted information to Congress until September 2006, which it did do. So is it an error of fact for the Senate to say so? The agency’s excuse that the blackout was ordered by the White House does nothing to answer the SSCI’s consequent criticism—that the CIA’s circumscribed briefing practices obstructed intelligence oversight. That is a fact. And that was the Senate committee’s point.
Morell’s charge of faulty logic revolves around the numbers thirty-nine and seven—thirty-nine being the number of detainees subjected to torture and seven the number who provided no intelligence. He reads that as thirty-two who talked, hence torture was effective. That argument is way too simplistic. A proper determination depends on individual cases, on reports before versus after strong-arm techniques, on the number and timing of fabrication notices filed about each prisoner. A better way to evaluate these numbers would conclude that torture had no effect at all on seven detainees and an indeterminate impact—unknowable except on the basis of documents the CIA keeps secret—on the others.
Readers of the SSCI report and CIA response will discover that the Senate document has at least dozens and more likely hundreds of footnotes debunking CIA statements about intelligence reporting to the oversight groups.
Morell’s complaint about context revolves around the charge that Langley’s original briefings, in the fall of 2002, impeded proper oversight. Here the CIA official explains that Congress had been on its summer recess and says that that context obviates the criticism. That might be true if the CIA had fully briefed the committees on Project Greystone and its legal authorizations at the next session, but it did not. That’s a context that the senior agency official leaves out.
In each case, narrow elements are used to discredit whole texts. Honest intelligence analysts object to cherry-picked reporting, but that’s exactly what these CIA objections are. That is only the beginning. Criticism of the Senate report’s conclusions forms an entire section of the agency’s rebuttal. A point-by-point comparison of the SSCI conclusions versus this part of the CIA response shows that Langley’s experts reordered the Senate conclusions, changed their sense and wording as the foundation of their “analysis,” made up “conclusions” they attributed to the Senate, and did not answer others.* The SSCI conclusions that the detainee program was inherently unstable and that it damaged the national security of the United States got no answer at all. A Senate conclusion that the CIA impeded even presidential oversight is juxtaposed with an alleged SSCI point about money. In fact, it does not appear that a single one of the Senate report’s conclusions is matched by the corresponding item in Langley’s response.
No detailed comparison of Senate versus CIA versions of the individual detainee cases will be attempted here. That would be a book in itself, and the data required have been kept secret by CIA, have been destroyed, or never existed in any real sense. As the Counterterrorism Center itself noted in its September 2005 blue-ribbon assessment of torture’s effectiveness,
There is no objective way to answer the question of efficacy. Because of classification, it is not possible to compare this program with other programs (e.g. law enforcement procedures) which derive information through interrogations. As such, there are no external standards for comparison. And there is the epistemological problem of internal measure[s] of effectiveness.
The CTC therefore confined itself to general observations based upon metadata supplied by Greystone’s own program office. How objective was that? A year earlier, when the inspector general’s report on Greystone circulated for comment, agency operations boss James Pavitt returned a critique backed by a study of several detainee cases. It credited hostile interrogation of Khalid Sheik Mohammed with saving “at least several hundred, possibly thousands, of lives.” Those numbers were guesstimates with no basis in fact. Pavitt also assumed that detainees were not simply trying to impress their captors and that they had the operational capability to carry out every plot mentioned. Assessments of effectiveness were embroidered from metadata that based itself on guesstimates and faulty assumptions.
At the street level, some sleeper cells were busted, some solo operatives apprehended, and some plots neutralized, but the enemy remained nebulous. Claims about effectiveness are illusions.
Deputy Director Morell, who retired in August 2013 as the frothing over the Senate report raged in full fury, rises above the weeds in his memoir to weigh in on the subject. Morell’s six points there deserve comment. The first is a throwaway—that really there were two programs, one for incarcerating the enemy, the other for interrogation. From George Tenet’s first written directives through the IG reports, until President Bush closed the black sites, the distinctions were minimal; both programs were always managed and reviewed as a single initiative, carried out by a single element of the CIA. Morell’s point is a distraction.
Secondly, the former spook argues, Greystone never was a rogue operation. The president approved it and kept updated—by some process we have yet to hear of. Dianne Feinstein, Morell recounts, was surprised to learn of Bush’s knowledge, in June 2013 when he and John Brennan together briefed her on Langley’s rebuttal. But the existing declassified evidence all indicates a constant White House concern to keep the president away from contact with the CIA program. Unfortunately, this point, which the former agency person uses to lambast the senator for ignorance, actually reflects the inadequacy of CIA congressional briefings—exactly the point made by former gunslinger Stephen Preston.
From President Bush on down, everyone sat on the edge of their seat. The intel added up to “the longest period of sustained threat reporting that I experienced in my fifteen years of working the al Qa’ida issue.” At one point, Morell thought a nuclear detonation in New York or Washington was a possibility and warned his wife, if that happened, to put the kids in the car and just head west. He and George Tenet would go to the White House speculating on whether today was the day of the next attack. This is without doubt an accurate reflection of the atmosphere of the time. And in that context, “professional intelligence officers . . . came to the leadership . . . 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.” So the spooks fear—and then they torture.
This picture would be nicer if, after applying their “enhanced interrogation techniques,” the CIA had developed a real, nuanced understanding of the terrorists, but that was never true. In 2007—just as in 2002—the NIEs pictured Al Qaeda as being on the march. In reality the adversary was a splintered collection of fragments with wildly disparate operational capabilities. Those NIEs had more to do with budgets, roles, and missions than with threats.
A third point Michael Morell makes is that the legality of the torture is open to debate. Amen. But not very much. On the one hand there is national and international law, on the other—what? A memo that says “torture” begins at the point of organ failure?
His fourth point veers back into the effectiveness morass, claiming that the strong-arm interrogations worked. I will leave the agency and its overseers to their dispute about that, noting only that here, once again, a CIA person invokes torture as key to the bin Laden raid.
Fifth, the former deputy director asserts that historians should debate the necessity for the torture. From Morell’s operational standpoint, its efficacy was unknowable—except that from the very first detainee, Abu Zubaydah, FBI interrogator Ali Soufan obtained very good results before the CIA ever applied torture, which gained no additional information from him. Here is a passage from Terrence DeMay, chief of the agency’s Office of Medical Services, in his reflections on detainees and Zubaydah’s case (OMS here is the acronym for the office and AZ that for the victim):
In retrospect OMS thought AZ probably reached the full point of cooperation even prior to the August institution of “enhanced” measures—a development missed because of the narrow focus of questioning. In any event there was no evidence that the waterboard produced time-perishable information which otherwise would not have been obtainable.
This is the CIA’s top doctor, in an official account, on CIA paper. It is no longer just the word of an FBI guy against the agency’s. Langley cut off a reasonable effort to apply conventional interrogation techniques in order to implement its strong-arm methods.
Mike Morell punts with his last point, asking whether, other considerations aside, torture is moral, whether or not the Department of Justice said it was OK. Reasonable people can disagree, he notes, then lards the issue with the reverse case—the morality of not torturing if the result will be the death of Americans at terrorists’ hands.
The former CIA person ought to have stayed away from that one. The answer is easy. Torturing a human being is morally wrong of a certainty. The death of Americans at terrorist hands in the reverse case is misapplied because it is indeterminate. This argument assumes the automaticity of American deaths unless torture is applied. It skirts past a whole series of variables: it assumes that each plot is authentic, that the terrorists’ capability is in place and the assets ready, and that existing security measures will fail to stop the attack. It also assumes that the person about to be tortured actually knows things and can be made to divulge them. Even after that, the case assumes that attackers’ weaponry will function properly. These postulates betray moral relativism. Moreover—not to draw this out very much longer—having obtained relevant intelligence through torture, there are further variables in the way of accomplishing successful preventive action. Not to mention the question of whether conventional interrogation would have yielded a similar result. No one who talks about torture should be employing moral relativism.
Like Mr. Morell, Langley’s stalwarts defended their ramparts. Greg Tarbell needed paper-covered walls to keep track of the meandering rebuttal. Perhaps there is a lesson there—as with Dick Bissell and Tracy Barnes, back in the days of the Guatemala coup, covering the walls of their Station Lincoln with paper displaying the flow chart of how it needed to go. The lesson is, if you have to paper your walls to accomplish the mission, then the task has become fraught with unmanageable complexity. Cancel it.
As the spooks stuck to their denials, Senate investigator Daniel Jones became increasingly concerned. Agency officers had already destroyed videotapes; who knew what else they might be capable of? Jones determined to preserve the Panetta Review. One summer night, the inquisitor worked in the reading room until after one a.m., stuffed a copy of the document into his canvas bag, and left. Agency monitors merely asked if he had anything with him that contained names or cryptonyms. They didn’t check the bag. Jones drove immediately to Capitol Hill, where he placed the document in the SSCI’s secure safe in the Hart Senate Office Building.
Events proceeded. In October 2013, Stephen Preston left to assume a new position at the Pentagon. Acting in his stead would be Robert Eatinger, whose name or pseudonym appeared, we are told, more than 1,600 times in the Senate report. This gunslinger was up to his eyebrows in the torture program. Eatinger sat in the audience on December 17 when a new nominee for general counsel, Caroline Krass, went for her confirmation hearing. Senators pressed Krass repeatedly for news of the release of the SSCI report, and then reached toward something different, the Panetta Review. Both Senator Feinstein and Colorado Democrat Mark Udall referred to it. Before the hearing, investigator Daniel Jones had told an OGC attorney, Darrin Hostetler, that the Panetta Review confirmed the Senate’s findings. Hostetler countered, “I’m done talking with you.” Bob Eatinger rode a wave of rising anxiety.
THE SHUTOUT
In journalism, to succeed in suppressing a story, preventing publication, is to spike it. In 2005 President Bush, Jose Rodriguez, and others sought to get the Washington Post to spike the black prisons story. The CIA did its best to spike the Senate intelligence committee report. Langley’s opening bid, which Michael Hayden tabled, had been to claim the daily cable traffic showed the detainee program in bounds, no investigation necessary. Then the agency agreed to an inquiry but tried to impose conditions. The third move had been to secretly monitor activity on Spartan Gate and to watch what the investigators were looking at. Then came the act of actually removing documents from the pool. Langley stalwarts can dispute whether the White House ordered that or if it happened at their own initiative, but the fact remains that their invasion of Spartan Gate obstructed the Senate inquiry. Once Langley could not prevent the Senate report, the next move would be to stall on its response. After the CIA rendered its reply and it fell flat, the spooks had a real problem.
No stoplights were left to prevent the Senate report’s release. In theory the agency could demand to review it for classified material, but the Senate intelligence committee had the ability to release the documents on its own authority. (The Church Committee had actually done this with its report on CIA assassination plots.)
Gunslinger Robert Eatinger had had a box seat for every play in CIA’s effort. As an OGC official, and then as acting general counsel, he’d been directly involved in many of them. In lawyerly fashion, it would have been appropriate for Eatinger to recuse himself, for he was heavily implicated in events the SSCI had investigated, and his conflict of interest seemed palpable. Instead, he took control.
Eatinger’s excuse was that the counsel’s office held responsibility for the security of the RDINet. At first the talk of a Panetta Review made him wonder what the senators were referring to, but he soon hit on those weekly case reports (WCRs) and the strategic review team (SRT) documents the monitors had assembled. By early January 2014, staff had reminded “Eatinger” (whose redacted name is ascertainable by comparing internal evidence in several documents, but who is not directly identified and will be accorded quotation marks here) of the incident when Senate inquisitors had caught the Spartan Gate software indexing their writing on the CIA side of the firewall. Choosing to interpret that as SSCI spying on the agency, rather than the other way around, “Eatinger” also convinced himself that the CIA-SSCI arrangement for computer access allowed the agency, but not the investigators, to breach the firewall. The gunslinger saw only that the CIA owned the computers, which were maintained in a CIA facility subject to agency regulations, including laws applicable to classified information. Between January 6 and 10—there are discrepancies as to timing—“Eatinger” had CTC techies probe the Senate computers looking for the Panetta Review. Subordinate Darrin Hostetler played go-between for the OGC with the Counterterrorism Center. Their action amounted to an information audit. They were to minimize their footprint by refraining from reading, altering, moving, or examining any contents. On January 9, one of the techies warned “Eatinger” that agency material indeed existed on the SSCI side of the firewall, both on shared caches and in the personal files of one user.
Another agency official, likely from the CTC, discussed these findings with Director Brennan and Deputy Director Avril Haines, Morell’s successor. The response, “Eatinger” learned, was instructions to verify that the items in the Senate cache really were SRT reports. By the afternoon of January 10, the CIA had established that five different Senate investigators had peered over the wall. The gunslinger reported this to Brennan and top community bosses.
“Eatinger” told Brennan that they should establish all the facts before taking it outside the building. Brennan, the lawyer recounts, ordered him to use any means necessary to find out how the documents were on the SSCI side of Spartan Gate. The counsel reminded the boss that the OGC had no investigative capability, but he could ask the CTC computer experts to help. The next afternoon, Saturday the eleventh, “Eatinger” answered the phone at home to hear John Brennan on the line. The director said he had reached Denis McDonough at the White House and become more convinced than ever that they needed to talk to Dianne Feinstein as soon as possible. Brennan repeated the order to use any means necessary to clarify the intrusion.
“Eatinger” told the CTC computer staff to get cracking. Another attorney had three RDINet staffers help her and reported that several documents’ first pages revealed them as SRT reports. After this an agency team apparently entered the reading room—January 11, 2014, was a Saturday, and they knew who was coming and going—took pictures, and viewed offending documents on a Senate staffer’s computer screen. (The CIA intruders apparently had the Senate researcher’s log-on information too.) The intruders reportedly spent twenty minutes in the Senate work spaces. Langley’s Office of Security conducted a forensic analysis of log-ons and visits.
In these forays “Eatinger” came to the line he would use repeatedly. He already had a criminal investigation in mind. That might kick up so much dust, it could stop the SSCI report. The gunslinger warned Brennan and other seniors not to talk to the White House: “If the WH were to order the inquiry stopped, it could constitute an act in furtherance of obstruction of justice.” Just speaking to McDonough put Brennan in a bad light, politicizing a potential criminal matter, and talking to Feinstein would result in the culprits having an opportunity to get their stories straight before being set upon by CIA security officers.
Breathtaking! A lawyer who had helped Jose Rodriguez arrange the destruction of the torture videotapes—the obstruction of justice that Obama’s attorney general had refused to charge—argued that avoiding a criminal prosecution of the Senate staff would be obstructing justice.
Tuesday, January 14, became the critical day. Agency executive director Meroe Park called a morning meeting in the director’s conference room. Senior officials at her confab included lawyer Eatinger, agency congressional aide Neal Higgins, and CTC officials. Everyone there knew the CIA had breached the Senate’s side of Spartan Gate, now at least twice. Some of them had approved or participated. Techies apparently went so far as to reconstruct e-mails sent by Senate investigator Daniel Jones. One CIA officer emphasized that Mr. Brennan had repeatedly demanded a “go” on the affair.
That was the morning. That afternoon, same place, Director Brennan presided. He expressed surprise that counterintelligence would be involved and concern at the “bad optic” of counterspies investigating the Senate intelligence committee. He wanted nothing more done on the technical or forensic side but wanted to see Dianne Feinstein and offer to join forces for a combined forensic investigation. Eatinger prepared talking points. The gunslinger repeated his mantra of potential Senate criminal conduct. Brennan expected that his orders would lead to a CIA stand-down on intrusions into the Senate committee’s reading room.
A showdown took place on Capitol Hill the next day. It began cordially, but Director Brennan soon showed his edge. He told Feinstein that CIA documents had been found in Senate hands, that the agency had logged all materials placed on Spartan Gate, and that these particular documents had never been given to the SSCI. He wanted the senators to discipline their staff—a veiled suggestion they fire Dan Jones—and to be fully aware before the CIA ordered further measures. Before starting a full forensic computer review, Brennan offered the alternative of a joint one, because he preferred a review conducted with SSCI consent. Feinstein did not agree. Brennan left, he told the agency’s inspector general later, with the impression that the senator had not dismissed the suggestion but simply wanted to consult others. Senate colleague Martin Heinrich recalled, “I think she knew, after that meeting, that it was going to be a real battle to bring that report out.”
On January 16, the SSCI’s security officer notified Neal Higgins, CIA congressional liaison, that the agency should scrap any plans for a joint inquiry. He should expect a letter from Chairwoman Feinstein to Director Brennan. Meanwhile, the Cyber Blue Team of Langley’s security office, created to identify vulnerabilities in agency computer systems, began another intrusion into the SSCI computer net, later claiming that they knew nothing of Brennan’s stand-down order, although the official who initiated the intrusion told interviewers that he’d been consulted on an urgent basis the day Brennan saw Feinstein, i.e., the day after the stand-down order.
The Senate committee struck back with Senator Feinstein’s letter, invoking separation of powers between Congress and the executive. She sent another missive, almost a week later, with a dozen probing questions that Langley never answered. Instead Brennan shot back his own message on January 27, thundering that “sensitive” CIA documents “may have been improperly obtained and/or retained.” On February 7, acting general counsel Robert Eatinger filed a criminal referral with the Department of Justice against the Senate Select Committee on Intelligence.
Fighting the quicksand sank the CIA deeper. Inspector General David B. Buckley began an inquiry into the allegation that the agency had intruded into SSCI computers while senators and CIA officials traded barbed statements. Dianne Feinstein felt caught in the middle. More than a month earlier, she had intervened to shield Brennan when the CIA director refused senators’ questions probing Langley’s intent to intimidate the committee. Early in March, anonymous leaks—where could they have come from?—accused the Senate of hacking CIA computers. Senate majority leader Harry Reid warned Brennan the agency had nothing to gain from this tactic, that Feinstein had been a friend, and that Brennan should just say he’d been wrong. Instead, Brennan thundered about “spurious” SSCI allegations. This time Nevada senator Reid went to Feinstein. Dismissing her objections, Reid pointed out that the CIA had done the leaking, undercutting its overseers. At that point, Senator Feinstein reserved time to speak on the Senate floor.
On March 11, Dianne Feinstein stood up to address her august colleagues. She began with the leaks, said she spoke out reluctantly and had been trying to resolve the dispute discreetly. Feinstein revisited the committee’s efforts to oversee the CIA detainee program, which had led to an investigation. She noted how the agency had previously intruded into SSCI computers and that therefore finding Panetta Review documents had led to fears that Langley would destroy or deep-six them. Most had disappeared from Spartan Gate, the committee thought, during 2010. Those that could be found needed protection. Feinstein noted that the Senate committee had the same security clearances as the CIA, that it had the same secret vaults, and that documents had been handled with identical safeguards. Agency claims of security breaches were bogus. The committee rejected Langley’s efforts to intimidate.
Three requests for the Panetta Review documents had met only silence or CIA rejoinders that they fell outside the stipulated date range of the SSCI investigation. Here Langley pretended that Panetta’s preservation order was a mutual agreement on the scope and range of the investigation. Feinstein demolished that ploy by pointing out that both the study and the CIA response devoted much attention to the case of Osama bin Laden, which, of course, climaxed in 2011. After her remarks, Dianne Feinstein went to a lunch of the Senate Democratic Caucus, where a standing ovation greeted her.
That day John O. Brennan happened to be on the same side of the Potomac, giving a speech at the Council on Foreign Relations. Attention to the CIA-Congress impasse was inevitable. Brennan tried to fend it off. “We have made mistakes, more than a few,” the director said. “And we have tried mightily to learn from them.” More than anyone, Brennan wanted to put this chapter of history behind them. He believed in congressional oversight, Brennan said.
Taking questions toward the end, the director added, “As far as allegations of, you know, CIA hacking into Senate computers, nothing could be further from the truth.” He averred that once the facts emerged, the critics would be proved wrong. And he promised, “If I did something wrong, I will go to the president and I will explain to him what I did and what the findings are.”
Director Brennan also dismissed the notion that the CIA was holding up release of the Senate torture report, saying that the SSCI had never submitted it (for declassification review). Brennan covered much of this same ground later that day in a message to the CIA workforce. There he added, “We also owe it to the women and men who faithfully did their duty in executing this program to try and make sure any historical account of it is balanced and accurate.”
So the latest excuse for spiking the SSCI torture report became ensuring that a “historical” account would be balanced and accurate. This, too, became a mantra. After the events of that day, Robert Eatinger later told a CIA Accountability Board, he did recuse himself from dealing with the torture report, that day. In other words, Eatinger recused himself after the agency’s hacking of the Senate became public. As it happened, Caroline Krass won approval as CIA general counsel on March 13. Mr. Eatinger continued to act on this matter until the moment his replacement arrived.
Early in April, the Senate intelligence committee voted 11–3 to release the investigative report, but it did not take the nuclear option of unilaterally releasing the documents. Feinstein displayed a finer sensibility than Langley. Her committee adopted an intermediate course—sending the report to the White House. President Obama was on record numerous times favoring the report’s release. To facilitate secrecy review, the SSCI agreed to confine the first release only to the executive summary and minority views. The report reached the White House on April 7. Presidential counsel Kathryn H. Ruemmler informed the Senate on the eighteenth that Obama had asked the CIA to perform the declassification review. The report languished for months.
Inspector General David Buckley, with the Senate’s sergeant-at-arms, finally did do a joint inquiry on RDINet log-in data. They discovered that the data that would have revealed CIA users breaching the Spartan Gate firewall had been corrupted. The IG also found that several employees or contractors interviewed, to put it delicately, had not been forthcoming in their initial interviews. Two recanted when confronted with evidence of lying. One refused further contact. Under the “reforms” General Hayden had imposed on the inspector general, there was nothing Buckley could do about it. Mr. Brennan offered no help. The IG concluded that the charges that Senate computers had been hacked were correct.
Eatinger’s criminal referral, the IG found, had been based on inaccurate information. Buckley recommended that a number of CIA officers be disciplined. Director Brennan’s apology was a croak, compared to his booming denunciations of those who believed the Senate committee had been hacked. Brennan did set up an accountability board headed by Evan Bayh, who had previously served on the SSCI for a decade, retiring just before its computers were mined for “executive privilege” documents. Robert Bauer, the former White House counsel who had participated in that fracas, also sat on this board.
Completion of the inspector general’s inquiry on the computer hacking coincided with three other major developments, all of them on August 1, 2013. In one, the Justice Department dismissed the CIA’s criminal referral against the Senate. In another, Langley returned the torture report to SSCI with its deletions. Senators saw extensive redactions gutting their report. All references to Allah, all names of any detainees, and the entire interrogation of prisoner Khalid Sheik Mohammed were supposed to be too secret for public eyes. A “balanced and accurate” report, in Langley’s view, required that the Senate’s inquiry be stripped of substance.
This was on John Brennan. In the executive order (number 13526) that regulates the entire secrecy system, Section 1.7(a)(1)(2) explicitly provides that information cannot be classified, maintained as classified, or fail to be declassified for the purpose of concealing violations of law or preventing embarrassment of an agency. Brennan could dispute whether the CIA broke the law, but there can be no doubt that “balanced and accurate” was all about avoiding embarrassment. The Flying Dutchman showed his hand.
Langley kept another development under wraps, an unclassified paper to which it gave no circulation, sat on for more than four months, and then prayed no one would notice—and no one did, for the better part of a year. This was the “Note to Readers of The Central Intelligence Agency’s Response to the Senate Select Committee on Intelligence’s Study of the CIA’s Detention and Interrogation Program.” Under that ponderous title, the CIA admitted that its own response to the Senate torture report contained more than a dozen mistakes. One was its claim that the secretary of state and the deputy secretary were aware of all black prisons from the moment they became operational (the CIA admitted that it had no records to show that). Worse, there were errors about attribution of claims for intelligence success, errors on the number of detainees tortured without authorization, and errors caused by inflating the number of inspector general investigations that supposedly kept the interrogations honest—all because the CIA had lumped Iraq War statistics with the data on the torture program. The actual number came in at less than half what had been advertised. Brennan was massaging the numbers just like Michael Hayden.
If you can’t spike the report, discredit it. The final stage in this sorry story is the Senate’s fight to get out its report in the face of those who lined up to knock it down. The declassification side is simpler and can be put in a few sentences. Senator Feinstein rejected the CIA’s proposed deletions. That revived the possibility that the Senate might unilaterally release the documents, something the Obama administration wanted to avoid. After listening to Feinstein, the White House put chief of staff Denis McDonough in play as mediator. He spent the October holiday of Columbus Day in San Francisco conferring with the senator.
They cleared up a few items but broke on Feinstein’s view that individuals were sufficiently protected by referring to them pseudonymously. This device—quite acceptable to Langley in CIA memoirs—suddenly became dangerous to national security. Feinstein offered to settle on forty or fifty key pseudonyms and delete hundreds of others. McDonough refused. The to-and-fro went on for another month, until late November.
One day McDonough visited Capitol Hill to engage legislators on immigration. He knew the torture report would come up, though. Senators had prepared remarks. Feinstein, Rockefeller, Heinrich, Wyden, and Udall all spoke. McDonough complained of being put on the spot. Resistance dissipated on both sides. The Senate committee gave up on its pseudonyms. The sides reached final agreement on December 3.
The administration’s goal-line defense would be soothsaying, predicting that revelation of the torture report would trigger worldwide violence against Americans, troops and officials primarily, but even ordinary citizens. Some broadcasters lent themselves to this shabby maneuver, poking microphones in senators’ faces and demanding to know why they would insist on a report that was going to get people killed.
Feinstein got a personal appeal from Secretary of State John Kerry. She stood her ground. Some committee members, Kerry’s friends and colleagues from his years in the Senate, might have been tempted to go along, but at just this moment Director of National Intelligence James Clapper intervened with a shoddy intelligence estimate that represented the SSCI report falsely and used that misunderstanding to predict global violence and chaos. Senators were incensed. The Senate committee’s report appeared on December 9, 2014. No violence occurred.
John Brennan was the top authority for deciding on pseudonyms and secrets in the Senate report. He and McDonough went back a long way. The latter’s mediation was not so evenhanded, after all. Brennan, who had blathered about balanced and accurate studies, had to be a source for claims that violence would greet the torture report. How a “historical” study would lead to violence was left unsaid.
The fact that the secrecy ploys amounted to spin-doctoring became only too evident in this next deep game. It brings us back to the new CIA lobby of Formers. They had kept in touch since briefed on the SSCI draft report. Eager to see how they were portrayed in the final document, they wanted access. Director Brennan opened up the report for the most senior people before it was declassified and while still under negotiation between CIA and SSCI. It was a limited window, and not everyone got access. Michael Hayden complained that, what with summer travel and all, he had only four hours to peruse the document. Nevertheless Brennan chose to privilege these people.
Langley stalwarts had no intention of taking criticism of torture lying down. Bill Harlow, the agency’s PR man back in George Tenet’s day, built a website to showcase reactions, and later stocked it with dozens of media appearances where former officers denounced the Senate. That much was politics. More disturbing would be the CIA’s lobby’s presentation on its website of secret agency documents released to lobbyists. This is not about the evidence in the documents, which understandably shifts the spotlight onto the Bush White House, showing how the CIA acted with caution. Disturbing is the manner of the declassification, which involves Mr. Brennan.
Many, many people file Freedom of Information Act (FOIA) requests every day. At Langley there is a minimal staff serving these requests. As a matter of law and administrative regulation, FOIA requests are taken in the order received. As a matter of government secrecy and CIA reluctance, the waiting list is long and frustrating. Many requests have languished for a decade, some for two. The CIA lobby filed FOIA requests and had them met almost instantaneously.
On September 9, 2014, Langley released a first batch of documents that included a record of a George Tenet meeting and a notice from the Counterterrorism Center, among others. Exactly two months later came another tranche. This set included five general counsel records, still from the Tenet period, showing the agency trying to get the White House on board with its interrogation methods. Among them were PowerPoint slides for an NSC briefing, George Tenet conversation notes, and talking points for a meeting with the attorney general. The record of a meeting with National Security Adviser Condoleezza Rice was released on December 5. Three days later, the CIA declassified the historical study of interactions with Congress that Deputy Director Michael Morell had ordered created in November 2012.
Work could only have been accomplished on these FOIA requests at the expense of requestors who had been standing in line for years. Worse, Brennan’s CIA moved on the lobby’s FOIA requests while stalling declassification of the Senate report. Langley lobbyists got their material in time to stock their website before the Senate report appeared.
Equally instructive, the documents the CIA released to the Formers were remarkably complete. They were, in fact, redacted more lightly than the Senate report itself. Some of these same documents had previously been subjects of other FOIA requests the CIA had denied. For example, the American Civil Liberties Union had sued for a swath of material, including the Condi Rice meeting record. ACLU won its case, but the CIA declassified just a few lines of text, the rest blacked out. The Formers got a practically full record with only a few lines missing. They had not sued.
Langley’s FOIA staff is part of a unit that works directly for the director. Preemption of the FOIA queue, as well as the light pen the censors applied in a case of this importance, had to have received Mr. Brennan’s personal attention—the Flying Dutchman in action.
As for the hacking, SSCI staff investigator Alissa Starzak would be nominated for general counsel of the U.S. Army. Senate Republicans held up her nomination in the spring of 2015, effectively punishing her, even though she left the SSCI before investigators smuggled any documents. The record of the CIA accountability board stands in stark contrast. Supposed to make judgments on officers implicated in hacking the Senate’s computers, the board reported out on January 15, 2015. It found no one accountable for the CIA hacking. This finding was based on the proposition that the Senate committee and the CIA had never reached a concrete agreement delimiting each of their roles. So the only person punished for any of this became a Senate staffer.
This astonishing outcome amounted to a complete rejection of the inspector general’s investigation. David Buckley resigned. President Obama never recruited a new IG. He left office two years later. At the end of the day, there is the damage to America’s standing in the world and hence its national security, which the Central Intelligence Agency wholly refused to acknowledge as flowing from its detainee and torture program.
The Flying Dutchman of lore is a sailing ship hidden in the mist. She emerges suddenly, perhaps nearly colliding, only to vanish like a puff of smoke or a leaf on the wind. So it was with John O. Brennan and accountability for the Central Intelligence Agency. Like others before him, the director had made all the desired promises of cooperation with Congress, showed the proper enthusiasm for oversight, and even voiced positive preliminary opinions about the Senate report and made statements about what he considered torture. But Langley’s director was the Flying Dutchman. When the time came to deliver CIA accountability, he engaged in a full-court press to derail the investigation and suppress the report. Accountability became a chimera. By means of its actions the CIA has squirmed away from the last bonds of congressional oversight.
Agency acting inspector general Christopher R. Sharpley, meanwhile, informed the Senate intelligence committee in August 2015 that OIG’s copy of the torture report had been destroyed—the computer discs were broken after it had been uploaded into a data bank. Officials then interpreted the attorney general’s instruction that no one should open the report as an order to delete it. Sharpley could not obtain a new copy from Brennan’s office. The Flying Dutchman again.
To this day, the Central Intelligence Agency maintains a disingenuous position, refusing to acknowledge the reality of these events. At Guantánamo Bay, where some of the former CIA detainees are on trial for their crimes, Brigadier General Mark S. Martins, the chief prosecutor, filed a legal brief stipulating that the Senate torture report is accurate. Reporters sought comment from Langley spin doctors. It came: “To be clear, although we did make a serious effort to respond [to the Senate torture report], we were not able to perform a comprehensive fact check. . . . [The agency] found that accuracy was encumbered as much by the authors’ interpretation, selection, and contextualization of the facts as it was by errors in their recitation of the facts, making it difficult to address their flaws with specific technical corrections.” The CIA pretends it wrote nothing in error and made no mistakes.
John Brennan never went to the president, confessed his sins, and begged expatiation. The beginning of wisdom would have been to acknowledge outrageous misbehavior. No organization that fails to recognize damage like this deserves the title of “intelligence” agency.
In the end, Langley evaded accountability for torture. The ghost of CIA’s future, the Flying Dutchman, is John O. Brennan. The moment of challenge predictably came. During the 2016 presidential election Langley spooks began to see signs of suspicious contacts between Russian operatives and Republican political activists in the United States. Brennan briefed the congressional oversight committees, expressing his fears. While the FBI did not help him—at that stage the Bureau, though it had begun to investigate, had yet to reach any conclusions; Congress dismissed his concerns. At the SSCI, where Republican senator Richard Burr had demanded the return to him of all copies of the torture report, Brennan made headway only with committee Democrats. Ironic—to have stiffed the Feinstein committee on torture only to be thrown into the arms of its remaining members. Donald J. Trump, victor in the election, worried about the political implications of accumulating evidence that Russia had run an intelligence operation to benefit his campaign. He tried to deflect criticism by shooting back. Before being inaugurated, Trump attacked the spy agencies, accusing them of acting like “Nazis” and saying they needed extra time to cobble together their phony account—of a potentially true tale of Russian interference in the presidential election that put him in the White House. Furious, Brennan denounced the incoming president and his charges, reacting just the way he had with the Senate torture report. This time no one came to his aid.
COMES THE SHIP TO FOUNDER
The house that Allen built holds many secrets. Spirits inhabit the halls. Ghosts—from horseman to Dutchman—will shape the next era of CIA history. John Brennan completes the circle, for like George Tenet before him this director was a dreamer. He sought to bring back the agency, to refocus it on classic missions, to chip away at the militarization and ossification. He had some success. The tragedy of the Dutchman is that what he did to evade the consequences of a shameful chapter of CIA history is quite likely to destroy those things he valued the most. That will be tragic for all of us.
Director Brennan helped turn the agency away from the drone war. During the last year for which there is a figure, 2015, CIA Predators made only two strikes in Pakistan. The center of gravity for agency drones has shifted to Yemen, where the situation is obscured by Langley’s close cooperation with the U.S. Special Operations Command (SOCOM), whose Joint Special Operations Command serves as field unit for the secret war against terror. The CIA’s paramilitary wing has had two main functions of late, support for military operations on battlefronts that now include Africa, Afghanistan, Syria, Yemen, and again Iraq, plus the Predator strikes. Shifting U.S. priorities have confused activity. Rules of engagement that dictate which insurgent groups are distinct enough from Al Qaeda to qualify for CIA arms and training have hampered paramilitary support in Syria. The bright spot is the Kurds—ironically, CIA allies in an anti-Saddam coup attempt during the Clinton years, and a paramilitary war nearly half a century ago. But on most of today’s battlefronts, SOCOM wants the lead and protects its interests fiercely. John Brennan had an opening for narrowing Langley’s involvement and used it. Then came President Donald Trump, who made Syria an early focus of his actions.
Brennan’s major enterprise has been a wholesale refashioning of the Central Intelligence Agency. It is this initiative, the nature of Trump’s leadership, plus the conditions the CIA has created by cutting free of oversight, that will lead to disaster.
The coming failure most likely will flow from the success of John Brennan’s initiatives. Brennan sought to refashion the CIA as a coalition of “mission centers.” The essential idea is to extend the fusion center formula to the entire agency, that is, use the model of the Counterterrorism Center (CTC) across the board. In the 1980s and 1990s, the CTC numbered among the first fusion centers. These units melded covert operations, traditional intelligence gathering, special intelligence (the term used for electronic eavesdropping), and analysis. George Tenet was a fan. He expanded the number and scope of the species. In the Counterproliferation Center and the CTC, the main function centered on operations, not intelligence. More traditional centers were formed for inquiries into foreign technology, ground weapons, and WMDs. At the turn of the millennium, these were all the rage.
John Brennan cut his teeth on the fusion center idea when he headed the precursor to the National Counterterrorism Center. That unit, at the level of the director of national intelligence, formed as an old-style fusion center, bringing together all-source data. President Bush needed a unit of that kind because the CTC no longer functioned in an analytical capacity.
In the war on terror, the CTC vision came down to a case approach—combating an organization like Al Qaeda or an individual like Osama bin Laden. Analysis became tied to planning operations. So far as the Central Intelligence Agency’s vaunted analytical capability was concerned, no one minded the store. The idea of the fusion center was to break down walls, bridging operators with analysts and support people, plus personnel from other agencies, and focusing them on a particular mission. Once focused on the mission, of course, that is what they do. The vision narrows. This is one reason for the shortcomings in U.S. appreciation of the overall dimensions of the terrorist threat. Similarly, the predilection for viewing refugee flows into and across Europe entirely from the security perspective failed to detect the social and economic forces that led to the British exit (Brexit) from the European Union and the election of Donald J. Trump.
Among the challenges today, the continental shifts wrought by such centrifugal forces are just one issue for intelligence. Resource scarcity, global climate change, unstable governments, cyberwarfare, revanchism, and nuclear proliferation are all problems that concerned Director Brennan in the summer of 2016. At an appearance before the Senate intelligence committee that June, Brennan tempered optimistic notes on the losses of the Islamic State of Iraq and the Levant (ISIL) with dark foreboding that “our efforts have not reduced the group’s terrorism capacity and global reach.” Though he denies climate change and resource scarcity, President Trump shares the fear of terrorists and in his election campaign promised even stronger efforts to eradicate the Islamist foe.
When Brennan’s precursor unit formed during the Bush years, it sought to draw on CTC expertise. Robert Grenier headed the Counterterrorism Center then. Grenier and others feared entities like Brennan’s would feed on their fusion centers. When the Flying Dutchman asked for the assignment of CTC analysts, Grenier offered to turn over the whole organization instead. He argued that other major agencies—the FBI, the NSA, the military, all the key ones—had counterterror units. Why not combine them all and make a true national agency? Grenier asked. Brennan seemed interested, but his questions became skeptical. He turned down the idea, fearing he wouldn’t be able to count on all those officers pulled out of their home agencies. But he kept thinking about it, and when Brennan emerged as CIA chief in his own right, he started reorganizing the agency as a coalition of mission centers. Frank Archibald, the operations director, opposed this scheme and went into retirement in 2015. His replacement, Gregory Vogel, had been chief of the agency paramilitary division and led the internal review that endorsed Brennan’s vision. Vogel got the DO job. For deputy he had Gina Haspel, the Batwoman of Greystone.
Besides the narrowness of the mission centers and the tenuous relationships with home divisions or agencies of officers assigned to the mission centers, another key problem is bifurcation of effort. The old regional divisions of the operations directorate—and, under John Brennan, that name came back, the awkward title National Clandestine Service dispensed with—were each responsible for one area of the globe. The barons have always been jealous guardians of turf. The baron “owns” the CIA stations in the region, the operations, the relationships with ambassadors. A CTC team coming in to execute an op needs approvals from the appropriate DO regional barons. So operations have to be staffed through both centers and divisions, an invitation for bureaucratic logjams.
Worse, the home agency or directorate of officers assigned to centers are still responsible for the employees, which means the regional baron writes the efficiency report for the officer at the center. That’s a recipe to stifle initiative at the center level. Meanwhile all those mission centers work for the CIA director. He or she has to manage the agency directorates, four at last count, plus the multiplying centers. Handling that many administrative units is practically beyond the span of any person. The weak leadership exhibited by the director of national intelligence illustrates the problem.
More menacing still is the prospect of fresh orders from a new president. Donald J. Trump spoke of tortures more extreme than those reviewed here, of new fierceness in prosecuting the war on terror, of pulling back from cooperation with European and Asian allies, and of reneging on the agreement made with Iran to hold back Tehran’s nuclear weapons program. Such decisions will dictate an even faster CIA “ops tempo.” President Trump’s early missile strikes in Syria will have no impact without a bigger ground game, and he depends on SOCOM and the CIA for that. Direct American involvement should be expected to increase.
Director Brennan joined the Formers. They have been stunned. Most have spoken out, cautioning Mr. Trump against his extreme propositions. Michael Hayden, who preferred that oversight be restricted to times when a single political party possesses the presidency and controls both houses of Congress, now achieved that condition. The powerlessness of congressional oversight investigating the Russian election caper reveals the craven nature of Hayden’s position. Meanwhile the general now says that Trump the torturer will have to bring his own bucket—a Hayden reversal. John Brennan, the Flying Dutchman, who finally decoupled the CIA from accountability, has observed, “Without a doubt the CIA really took some body blows as a result of its experiences. I think the overwhelming majority of CIA officers would not want to get back into that business.”
In the Trump presidential transition, a politico has been selected to lead the CIA. Congressman Michael Pompeo, formerly a member of the House intelligence committee, has no administrative experience and no leadership credentials other than service as a junior tank officer in the Army. Pompeo is regarded as a quick study and a smart fellow with book knowledge of national security, but he shares some of Mr. Trump’s outlook and is unlikely to stand up to the chief executive. Director Pompeo seemed notably silent when Trump ordered attacks on Syria, where the cleavages and infighting among assorted rebel groups, the Kurds, the Turks, the Russians, Syrian government forces, and the ISIL terrorists have shifted so often and so much that escalating without deep deliberation is foolish. Press reports indicate that Gina Haspel, whom Pompeo has elevated to be his own deputy, substituted for the boss by videoconference at Trump’s decision meeting on the missile strike.
The true results of the dispute that raged around the Senate torture report are three: First, the CIA showed that it regards oversight as a political convenience, a cloak to disguise operations, not a watchdog to which it is responsible. Second, the controversy defanged the inspector general system, leaving it bankrupt. Third, Langley’s excesses, unanswered by presidential measures of discipline, make the agency unassailable. Donald J. Trump likes “strong.” Add to these elements the fact that under Panetta the CIA broke free of the director of national intelligence, who failed in an attempt to assert control over the naming of station chiefs. As a result, you have Langley in position to run away at any time. Director Pompeo will be carried off with it. The rank-and-file officers John Brennan worries about have been exposed to danger by his own success at evading accountability. At this point, only the remaining tendrils of presidential control keep the CIA from becoming—in Frank Church’s memorable phrase—a rogue elephant.
The CIA entered the heart of its darkness at a moment of trauma for all Americans. Langley’s denizens let ignorance and revenge skew their approach to the real business of spying. The zealots disdained anyone who rejected such a course. From that moment, evasion of accountability became necessary. That has entailed turning the CIA into a “paper mill” generating false claims of success and specious arguments to game the laws and engineer the conditions under which investigations are conducted. It has led the agency to engage in conspiracy, obstruction of justice, perjury, manipulation of secrecy regulations, phony referrals to the Department of Justice, countersurveillance against congressional overseers, and many other crimes. The spooks didn’t have to invent all this. They drew on CIA experience at handling outsiders stretching back to its origins. There was a degree of innovation, to be sure, but there were rich illustrations from the agency’s past to show how this sort of thing can be done. And Langley succeeded. The agency cut what it considered the fetters of accountability.
The thing is, the world is still a dangerous place. The reasons the nation needed an intelligence agency in 1947 persist, different only in detail. The ultimate horror is that the CIA’s escape from accountability sows the seeds for its coming failure. The specifics of that failure are not possible to foresee, but the fact of it is perfectly predictable.
One key feature will be the stewardship of Donald J. Trump. As candidate Mr. Trump talked about interrogation methods worse than waterboarding. He spoke of destroying the Islamist “caliphate” in Syria and of putting more of the clandestine service’s officers into the field. As president-elect, Trump kicked up a feud with America’s spies to protect his own political position, and brought in politicians both as director of national intelligence and as head of the CIA.
Any CIA director, of necessity at the very limit of his capacity to lead the broad organization, will have no effective inspector general as warning bell. In addition, there will be a thinned-out body of midlevel and senior management personnel, the people who could keep the CIA train on the tracks. Those are precisely the officers who, like Mr. Brennan, are troubled by President Trump’s shoot-from-the-lip style, but they are leaving or going into retirement by the dozen. There was an exodus from CIA when the Cold War ended and another after the Guatemala and Aldrich Ames fiascoes. More seepage took place during the angst-ridden black-prison phase. The advent of Donald Trump has brought the latest departures. The net result will be a cadre of very junior officers left to cope with the demands of a president demanding miracles on his breakfast plate.
In addition, talented people from all directorates have been siphoned off to the mission centers. There they are focused on operations, not on understanding the larger meaning of events. Just as worrisome—as the talent leaves, perhaps the directorates will send only their poorest people to the centers. Meanwhile the mission centers and the DO’s geographic divisions will be fighting each other every step of the way. The centers, with their tunnel vision, will almost inevitably foul up. As a senior CTC officer put it in the dawn before the darkness, this is a train wreck waiting to happen. Good time to get off.
The DO surge into the field that Mr. Trump has promised will leave headquarters support as thin as upper management. At the same time, the shift to the operations-heavy mission-center model will further reduce the potential input from intelligence analysis, while CIA’s newly ordained presence on the National Security Council Principals Committee multiplies its exposure to badgering. Given hard-driving agents in the field, a challenged Director Pompeo, and the demands from President Trump, blunders are almost certain. That’s where the Ghosts of Langley come into the picture.
The CIA director will have minimal direction from above. The president is a character completely without scruples or substantive knowledge. Phony congressional oversight will flow from a Congress completely controlled by the president’s party, and Langley seldom heeds Congress anyway. There will be a host of gunslinging attorneys as enablers. At hand will be a menu of ready-made tactics to evade scrutiny. First, pretend all is well and oversight is splendid. Next, deny every charge. Laugh critics off the stage when possible. When it is not—as with Eerik Heine or Frank Snepp—slander them. Prevent insiders from speaking out of court. Control the release of secrets. Discipline agency personnel only as a last resort. Maneuver to neutralize investigations where they become inevitable. If inquisitors interview, say they ignored documents; if they do documents, claim the results are skewed for lack of interviews. If necessary, claim that the investigators are breaking the law. If reforms are demanded, say these will lead to excess caution, to risk aversion that will damage intelligence. It’s a quiver full of arrows sufficient to defeat all but the most intense inquiry.
If perchance the spy chieftain is not prepared to stonewall, there is now a Langley lobby ready to pull strings and apply pressure to stiffen the CIA’s backbone and induce the president to order the agency director to do whatever it deems necessary. The Formers may have opposed Trump the candidate, but they will most likely line up behind Trump the president.
The Ghosts of Langley teach that keeping perceptions of the threat at an intense level reduces pressures on the CIA to observe legal and political boundaries. Both President Trump and Mr. Pompeo have drawn a bleak picture of a hostile world. Bombing the terrorists back to the stone age is on Trump’s list. Barack Obama must take a share of the blame here. Had Obama begun with a conscientious national look back at what had been wrought, any reversion to torture today would simply be impossible, and had President Obama brought the drone war within a constitutional war powers framework, America would have had the Great Debate that would have built a consensus around our national actions. Instead, Obama’s successors think they can turn back the clock, perhaps as far as the Middle Ages, the Islamists’ favorite era. The Trump administration will do nothing to turn back the Ghosts of Langley. And that leads to the Great Train Wreck. The challenge is clear.
* Additional commentary on this section of the CIA response appears as an endnote.