Playing to the Edge: American Intelligence in the Age of Terror

by Michael V. Hayden

  I challenged the Justice Department’s presumption that the government was going to lose the case. I pointed to the successful 2008 defense of the details of waterboarding.

  I emphasized that the White House could not expect to control events in the aftermath of a release. Despite the administration’s commitment to look forward, the release would fuel more requests for documents, and there was no natural firewall now that the details of the techniques themselves were voluntarily declassified.

  There would be calls for prosecution—of the authors of the opinions, those who requested them, those who carried them out, those who gave them their policy approval. Calls for disbarment of lawyers and sanctions of medical and psychological professionals involved in the program would follow.

  I described the decision as a “betrayal of trust” and a “fundamental dishonesty.” Good men could disagree on the merits of what the agency had done, and the president’s policy decision to ratchet back interrogation practices was the kind of decision that the agency expected the commander in chief to make. But this decision was different. This was pushing good people—doing what they did out of duty rather than enthusiasm—into the bus lane and seeming indifferent to what would happen next.

  More substantively, I argued that revealing these techniques would teach our enemies the outer limits of what they could expect in any future interrogation session with Americans. The Army Field Manual, the Department of Defense’s guidelines for interrogations, was unclassified and already available on the Web, where it was being used by al-Qaeda to teach how to resist American interrogation.

  I reminded Greg Craig that the president’s executive order that limited government agencies to the Army Field Manual had also directed a government-wide study to judge whether or not the techniques authorized in the manual were sufficient to guard against future threats. Now the president’s own study was being mooted by this decision to reveal a detailed description of all our alternative techniques. Removing an enemy’s uncertainty by telling him the precise limits of what you may do, how, and for how long would only steel his ability to resist and make any exposed technique ineffective. That meant they were off the table. Period.

  Craig pushed back. The president was never going to authorize any of the thirteen techniques that were about to be revealed. My first response was that—as popular as the president was currently—he was not president for life, and he had no right to foreclose options for his successors.

  But I pressed the case more directly. “Let me get this right,” I said. “There are no circumstances of threat under which the president will allow us to interrupt the sleep cycle of a terrorist even if it would help get at lifesaving information?”

  Administration officials frequently reminded me that the ICRC’s summary of interviews with fourteen former CIA detainees (chapter 12) had recently been leaked. The argument was that, since so much was already out there, it would be impossible not to declassify almost all of the DOJ memos.

  I couldn’t fathom how the unauthorized disclosure of the ICRC report, which was based entirely on one-sided prisoner debriefs, could possibly lead the US government to conclude that it had no choice but to declassify and inventory for the world the details of our past enhanced interrogation program. There was a difference between speculation (informed or ill-informed) and formal confirmation by the US government.

  And that brought my discussions to the core point, a point I emphasized to Jones, Craig, and Donilon: the disclosure of these memos would have a terribly negative impact on the future actions of CIA.

  With the details of a previously authorized covert action being revealed, declared criminal and disavowed by an incoming administration, every case officer in the agency would now hold any government assurance up to the light and ask if any pledge to them would last longer than one election cycle.

  Later, on Fox News Sunday, I had a chance to spell this out by suggesting a conversation with a fictitious case officer who is asked to carry out an edgy covert action. The director assures the case officer, “Well, it’s authorized by the president. The attorney general says it’s lawful. And it’s been briefed to Congress.”

  I then had my fictitious case officer respond: “[Okay, but] have you run it by the ACLU? What does the New York Times editorial board think? Have you discussed this with any potential presidential candidates?” I concluded, “In short, you’re going to have this agency—on the front line of defending you in this current war—playing back from that line.”

  Who could blame current officers and the generations to come after them if they never again risked such exposure?

  Greg Craig knew that releasing the memos would have an impact. He told me that this decision would “hurt our relationship with the agency.”

  “Hurt?” I replied. “I think you’re really lowballing this, Greg.”

  A sincere attempt by Director Panetta to buck up the spirit of those most affected by this was described by one participant as resembling a “pep rally in the Führer bunker.”

  I was told that one officer asked the director if the people doing the things currently authorized by the Obama administration would be dragged through this same kind of knothole in five years. Panetta was honest. He couldn’t guarantee that they wouldn’t. But, he added, that wouldn’t happen under this president. Everyone in the room must have appreciated the candor, but they also realized that the durability of support for any of their actions might not be more than one or two election cycles.

  We were working to avoid such an outcome. I was making calls. So was George Tenet. So was Porter Goss. So was John McLaughlin. So was John Deutch. That’s an uninterrupted string of directors and acting directors reaching back to 1995.

  Each of us touched someone in the administration we knew. George called John Brennan, his former chief of staff and at this time deputy national security advisor for Homeland Security. Deutsch called Tom Donilon, an old friend and Jones’s deputy. McLaughlin called Denny Blair.

  Late Friday afternoon, Craig told me that the train had stopped for now. He had asked the National Security Council to hold a principals meeting the following week. That meant that the national security advisor, the secretary of state, the secretary of defense, the chairman of the Joint Chiefs, the attorney general, the secretary of Homeland Security, the director of National Intelligence, and the director of CIA would consider the issue. We welcomed that, since in our view, the arguments against releasing the documents had not been addressed and the arguments in favor of releasing them had gone unchallenged.

  All of this movement about the DOJ memos—pending Department of Justice decisions, CIA angst and anger, former directors weighing in, multiple phone calls between and among multiple actors—was kept from the public eye until Saturday, March 21, an eternity by Washington standards, but about five days according to the way time is reckoned in the rest of the country. And then the story was outed in Newsweek—sourced explicitly to administration officials and clearly (if implicitly) from the Department of Justice. The story claimed that the release of the memos had already been decided. The piece asserted that “the White House has sided with Holder.” A “senior Obama official” called the memos “ugly” and said they would “embarrass the CIA.” The official also claimed that I was “furious” in my phone calls to administration officials trying to reverse the decision.

  By putting it out that the decision had already been made, those supporting release were leaning on the president, since any no-go decision would now be portrayed as walking back a decision under pressure from the intelligence community. Later stories described the battle over the memos as a major test of the Obama administration’s commitment to transparency.

  I told Craig that the administration sources for the articles were doing the agency (and the truth) a disservice by claiming that the agency would be embarrassed by the memos. That maliciously mischaracterized our objections—which had
to do with national security, not shame or humiliation. In fact, the memos’ release would display the agency’s emphasis on continuing dialogue with Justice for the life of the program and would counter many of the ridiculously extreme accusations being made.

  Over the course of the next weeks, the NSC did indeed meet on several occasions to try to come to consensus. From all accounts, the agency had opportunities to present its views, and Director Panetta was forceful in expressing them.

  Public arguments swirled around the contention that CIA’s program had made America less safe by serving as a recruiting tool for jihadists.

  It was an easy argument to make. It fit the narrative that American actions created many of our current problems. It just wasn’t all that true, or at least all that simple. Lots of things motivated Islamic extremists to take up arms against the United States, but I never encountered any evidence to suggest that CIA’s detention of about a hundred terrorist leaders and the tough interrogation of about a third of them had filled the ranks of al-Qaeda.

  There were many factors. The spring 2006 National Intelligence Estimate assessed that the war in Iraq had become a “cause célèbre” for jihadists. Radical Web sites routinely cited US support for Israel or conservative Arab governments in their recruitment pitches. The abuses committed by US military personnel at Abu Ghraib had clearly accelerated al-Qaeda recruitment after those images were played and replayed around the world.

  But I never encountered a radical Islamist argument that was based on how CIA handled Khalid Sheikh Mohammed or Abu Zubaida or Abd al-Rahim al-Nashiri; I never found an Islamic partner who raised the issue or said that it was an impediment to our cooperation.

  In fact, sensitive to how our relationship might be affected after we had very publicly moved fourteen high-value detainees to Guantánamo in 2006, I raised the subject privately with an important Middle East partner. He simply reassured me that he, his service, and his government knew who these people were and what they had done. This was not an issue, he told me.

  It would be useful to keep in mind that even if such things—Abu Ghraib, Guantánamo, black sites, Iraq, Israel—might serve (in different degrees) as convenient symbols, they are not at the core of the jihadist narrative. Sayyid Qutb, the Egyptian whose writings form the theological base of modern jihadism, visited the United States in the late 1940s. He described it as a soulless, materialistic place and equated green lawns with greed, and jazz with bestiality. He criticized church socials in conservative Greeley, Colorado, for what he saw as their overt sexuality and condemned our emphasis on civil over divine law. Such beliefs reinforce a worldview where the corruption of modernism itself, represented by Jews and Crusaders, threatens the harmony of Islam. In such an all-defining Manichean universe, American actions might, at the margins, affect the power of the jihadist message, but if they do, we might look to our sexual mores as much as how we choose to defend ourselves.

  I will admit that how we choose to defend ourselves does affect European elites and European government and media circles. But those groups do as much huffing and puffing over American targeted killings (which expanded after 2008), renditions (which continued), and electronic espionage (which became less secret) as they do over detentions (which were curtailed) and interrogations (which stopped). And all their objections are anchored in a broader belief system that challenges the current American view toward the utility and legitimacy of force in the modern world. In short, it, too, is part of a much larger conversation.

  Another of the “facts” being contested was whether or not the techniques worked; if they didn’t, there was little reason to protect them now.

  I argued publicly that they did work and had been vital for national security. In a Fox News interview the Sunday after the release of the memos, I said, “The facts of the case are that the use of these techniques against these terrorists made us safer. It really did work. . . . President Bush, in September of ’06, outlined how one detainee led to another, led to another, with the use of these techniques.”

  Indeed, following the release of the DOJ memos, DNI Blair confirmed in a message he sent to the entire intelligence community that “high-value information came from interrogations in which those methods were used and provided a deeper understanding of the al-Qaeda organization that was attacking this country.” Even though those words were mysteriously removed from the version of Blair’s note that was released to the press, the administration could not contradict his or CIA’s conclusions on this point without exposing themselves to a charge that they were politicizing intelligence.

  (Five years later Democrats on the Senate Intelligence Committee aggressively challenged the effectiveness argument, but in 2009 the president did not.)

  At a press conference marking his first hundred days in office, the president defended his January executive order banning enhanced techniques. “I am absolutely convinced it was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment.”

  That put some distance between the president and the program’s more strident critics. As I said in the Fox interview, “Most of the people who oppose these techniques want to be able to say, I don’t want my nation doing this (which is a purely honorable position), and they didn’t work anyway. The back half of that sentence isn’t true.” I continued, “The honorable position has to be, even though these techniques worked, I don’t want you to do that. That takes courage. The other sentence doesn’t.”

  From all accounts, even after considerable deliberation, the NSC principals had been divided on the question of releasing the DOJ memos. Some reports suggest that there had been talk of releasing a heavily redacted version of the opinions (the CIA position) balanced by a commitment to launch a presidential commission to review the whole history of interrogation techniques (a concession to “transparency”).

  In the end, though, the president was faced with a binary choice: release the memos largely intact (the DOJ position) or decide to substantially protect the documents and fight their release in court (the CIA position).

  According to the Washington Post, with his counselors divided, the president held a late-night meeting in which he assigned one advisor to argue for release of the memos (Greg Craig) and another to argue against (Denis McDonough). At the end of the mock debate, the president opted for release and personally dictated a draft of his public announcement for the next day.

  This decision was the same one that Greg Craig had announced to CIA four weeks earlier. Nothing had changed but the date.

  I got a call on the morning of April 16 from Director Panetta’s chief of staff telling me that the DOJ memos would be released with minimal redactions. That was followed by a call from John Brennan, former CIA senior and now Jim Jones’s deputy for Homeland Security. John was in Mexico City awaiting the president’s arrival there. I gave him little comfort, decrying the decision as a “fundamental dishonesty” toward the officers of the agency.

  Within the next hour, I was called by Jim Jones from Air Force One en route to Mexico with the president. The best I could offer Jim was that I knew how to respect the person and the office of the president but that “I could not just make stuff up.” He easily acknowledged that. It was a bad connection. We lost contact at least three times, and I’m sure Jim was as frustrated with the circumstances of our dialogue as I was.

  I called former attorney general Mike Mukasey. He and I had drafted an op-ed laying out our objections to the president’s decision. We hit the core of our case very early in the piece:

  The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on September 11, 2001.

  We struck out against the arguments in
favor of release:

  Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

  We had held off publishing the op-ed until the president’s final decision, since we didn’t want to make it harder for the president to do the right thing (as we saw it) by attaching the names of two Bush administration formers to arguments against release.

  Although the piece was about twice the length of a normal op-ed, the Wall Street Journal agreed to fit it into the next day’s paper.

  It was important that they did. Both Judge Mukasey and I believed that the public debate needed a calm, coherent counterpoint to what the administration was sure to lay out. I also felt very strongly that the agency workforce needed to hear this voice as quickly as possible, especially since Director Panetta was in no position to make any of the points himself.

  I was right. One career operations officer told me, “Friday was an incredibly dark day but I was very proud when I read your piece.” Another said, “I read your piece, which captured the moment and the stakes with precision and clarity. Thank God someone is saying what must be said.”

  The president knew that the release of the memos would hit the agency hard, so the following Monday he visited Langley. He privately met with and answered questions from members of the CTC before the public event in the concourse. By all accounts it was a lighthearted affair with a series of friendly questions until the call went out for “one more question” and a CTC veteran who had been standing in the back of the room with two others raised a hand. Steve Kappes motioned to Director Panetta to recognize the officer, which he did.

  The officer thanked the president for coming, conceded that the RDI (rendition, detention, and interrogation) program raised controversial moral and legal questions, but then asked if the president agreed that they could go back and tell their workforce that what they had done in the program had saved lives.