Company Man: Thirty Years of Controversy and Crisis in the CIA

by Rizzo, John

  Nonetheless, beginning in 2004, outside factors were serving to erode the foundations of the EIT program. It, and everyone associated with it, would become vulnerable. Myself included.

  Looking back, 2004 was a perfect storm for the EIT program.

  Media leaks about the CIA secret prison system and the EITs had begun, drip by drip. On White House orders, all of it was still being kept from all but a handful of top congressional officials, so it was unlikely that the leaks were being sprung on Capitol Hill. Inside the Executive Branch, however, it was a different story. Technically, it was still a top-secret, compartmented program, meaning that information about it could be provided only to officials who had a demonstrable “need to know.” But the reality is that every closely held secret seeps into an ever-widening audience inside the Executive Branch. Outside the CIA, senior national security political appointees come and go, and inside the CIA, career officers regularly rotate into and out of components conducting major covert-action programs. And no CIA covert-action program was ever bigger than the CTC’s hydra-headed, post-9/11 offensive against Al Qaeda. In particular, the secret prison/EIT program was growing like Topsy, with more HVDs being captured and the number and location of the prisons changing as operational requirements dictated.

  Leaks, in short, were bound to happen. And, as usually happens, some of the leaks were on the mark, while others were wildly off. Prisons were alleged to be located in countries where they never existed (as this is written, the exact location of the prisons is one of the very few remaining classified facts about the program) and nonexistent techniques were cited as part of the program. Still, the tidbits and sound bites were tantalizing and sinister—“black sites,” “waterboarding,” and the like. Let’s face it, they made for great copy.

  Meanwhile, in April 2004, the Abu Ghraib scandal burst into the public consciousness. The abuse of prisoners by military guards at the Iraqi prison, documented in a series of shocking, repulsive photos by the guards themselves, was in many ways the tipping point of the post-9/11 era for the CIA. The photos were horrifying—naked Iraqi prisoners posed in piles with grinning male and female guards looking on approvingly, a prisoner with electrical wires attached to every appendage, and on and on. None of the prisoners were part of the Agency’s program, and the cruelty and sadism depicted in the photos made the EITs seem almost benign by comparison. Of course that wasn’t apparent, and couldn’t be forcefully pointed out at the time, because of the veil of secrecy over the EIT program. So the public and the majority of Congress could be forgiven for conflating what had happened in Abu Ghraib with what the Agency was doing in its black sites, whatever that was. The images in those photos were absolutely devastating, and I don’t believe the EIT program ever was viewed, even by non-CIA people inside the government who were present at its creation, in quite the same way as before.

  Most notably, it looked like the Justice Department was starting to wobble. John Yoo (along with his elusive boss, Jay Bybee) was long gone from the OLC. In late 2003, a former Harvard law professor named Jack Goldsmith took over the reins at the OLC, and he proceeded to review the national security legal opinions Yoo had prodigiously churned out during his tenure. And Jack Goldsmith didn’t like what he was reading. I consider Jack Goldsmith not only a man of immense intellectual firepower and integrity, but also one of the best and most lasting friends I have ever made inside the government. But back in 2004, Jack was scaring the hell out of me.

  For starters, he repudiated the Yoo-authored legal opinion authorizing the NSA’s unprecedented, far-reaching post-9/11 terrorist surveillance program. The CIA played only a supporting, relatively minor role in that program, and I didn’t even see the Yoo opinion until David Addington pulled it out of his office safe one morning in early 2002 to let me read it for the first time (and I will readily admit that it was so long and so technically detailed that I didn’t understand much of it). But then Jack turned his attention to a Yoo opinion that struck closer to the EIT program. On August 1, 2002—the same date of the top-secret eighteen-page OLC memo to me legally authorizing waterboarding and the other EITs—Yoo sent a separate, unclassified fifty-page memorandum to the White House counsel, Al Gonzales. It was clearly crafted as an OLC analogue to what he had sent to me on the same day, and it basically was a lengthy, bone-dry law-review-type article on the standards of conduct under the torture statute in the area of interrogations. It was, not to put too fine a point on it, a very aggressive interpretation of the Executive Branch’s powers and prerogatives under the statute.

  I never entirely understood why the OLC decided to turn my request for guidance on EITs into two opinions—the classified memo to me, the unclassified memo to Gonzales—on the same day on the same topic. And, honestly, I didn’t pay the Gonzales memo all that much attention at the time; after all, the memo to me stood on its own and gave the Agency what we needed, which was detailed, definitive legal authorization to conduct the EITs. I only truly focused on the Gonzales memo nearly two years later, when Jack Goldsmith decided it was fundamentally, fatally flawed. In June 2004, he recommended, and Attorney General Ashcroft agreed, to rescind (“withdraw” is the formal term) the Gonzales memo. True, Jack took pains to emphasize to Scott Muller and me that the OLC would continue to stand behind its classified memo to me on the EITs, but I was only partially mollified. In my experience, OLC memos almost always stood the test of time, and on those rare occasions where one was rescinded, it was done by a succeeding administration. Here, a Bush appointee was dumping a memo prepared less than two years earlier by a previous Bush appointee. It was a disconcerting, alarming turn of events. Was it a precursor to a subsequent OLC moonwalk on the classified memo? Were the leaks about the program or the Abu Ghraib scandal starting to rattle the Justice Department? Was the EIT program—was the CIA, for that matter—destined to be left in the lurch?

  I didn’t realize it at the time, but it was all starting to get to Scott Muller. Dropped from private practice into the cauldron of the new EIT program scarcely eighteen months earlier, he couldn’t have anticipated the nature and extent of the pressure he would face or the stakes that would be involved. No one from the outside, no one new to the intelligence world, could be expected to. By mid-2004, he was wrangling, at various times, with the CIA IG, John Helgerson, Al Gonzales and David Addington at the White House, even the ineffable Jack Goldsmith at the OLC (who himself, worn down by the relentless stress of duels with the Bush White House, tendered his resignation in June 2004, less than a year after he took the job). In mid-July, Scott privately told me he didn’t think he could be an effective advocate for the Agency too much longer. Totally oblivious, I assumed he meant he would probably be stepping down in a few months.

  Not so. “I’m submitting my resignation to the White House today,” he said. “I intend to be gone in a couple of weeks.” That meant the end of July 2004. I can’t remember now if Scott also told me that he had already informed George Tenet of his decision. But a few days earlier, George had suddenly announced his own personal life decision: He was resigning as CIA director, effective July 11. George had valiantly served for seven tumultuous years, the second-longest DCI tenure in the Agency’s history. He was burned out, exhausted by his straddling of the pre- and post-9/11 era, and dispirited by the Iraq WMD disaster and his attendant disenchantment with and alienation from the White House.

  So there I was, at the end of July 2004. Acting general counsel. Again.

  Thus, at the time of the sudden, nearly simultaneous departures of Tenet, Muller, and Goldsmith, I was left with a festering situation where various factors seemed to be conspiring to threaten the original legal and policy underpinnings of the EIT program. In his final few weeks, Scott Muller had gotten into a nasty dispute with OLC over whether it had earlier agreed to the proposition that the program did not violate the terms of Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

  Jack Goldsmit
h insisted that the OLC had never ruled on the question of whether or not the EITs violated the “substantive” terms of Article 16, meaning that they constituted “cruel, inhuman or degrading treatment” of the CIA detainees. The OLC contended that its conclusion was narrowly drawn on “jurisdictional” grounds: Since the EITs were being conducted outside the United States, the OLC concluded that Article 16 simply did not come into play. The OLC’s view was there was no need to rule on the “substantive” question, since the “jurisdictional” grounds effectively took Article 16 out of the picture. Scott wasn’t buying it—he was convinced that, months before, the OLC had agreed, albeit informally, that the EITs did not violate Article 16’s “substantive” terms. To Scott, the OLC was now backsliding, running for cover in a changing, post–Abu Ghraib political environment.

  For its part, the OLC, and the rest of the DOJ leadership, couldn’t figure out what the big deal was. Basically, their position was: Hey, we are telling you CIA guys that Article 16 doesn’t apply, that the EIT program is legal. We haven’t changed our minds on that. What else do you need from us?

  It was then, in one of my first acts back in the chair as chief legal advisor, that I decided we needed a new set of written legal opinions from the OLC. We were two years removed from the August 2002 Yoo-drafted memorandum to me on the EITs, and both he and his boss, Jay Bybee, were now long gone. The political climate was changing rapidly from the early post-9/11 months. We had to make sure we were still on solid legal ground for the sake of the Agency as an institution and, more important, for the dozens of rank-and-file Agency officers and contractors dutifully implementing the EIT program. They had to be assured, they deserved to have it confirmed, that under the law they were not engaging in torture. That what they were doing did not constitute “cruel, inhuman or degrading treatment.” Those were powerful, portentous words. Our people weren’t satisfied with getting by on some technical legal loophole such as “foreign jurisdiction.” If what we were doing—on its merits—was “torture,” “cruel,” “inhuman,” or “degrading” by the OLC’s 2004 legal standards, then we weren’t going to do it any longer.

  The Agency’s posture in this regard did not endear us to the rest of the Bush national security team. A series of testy Principals Committee meetings in the White House Situation Room ensued that summer. Participants such as Condi Rice and Al Gonzales were impatient with John McLaughlin, the acting DCI after George Tenet’s departure. I accompanied John to those meetings, and I was proud of the way he held his ground. A professorial, soft-spoken gentleman in every sense of the term, John had been at the CIA even longer than I, but never in a situation as tense and high-stakes as this one. His message was quietly delivered but insistent: Without a DOJ promise for a fresh set of OLC memos (especially on the “Article 16” issue), then count the CIA out of the EIT business.

  The attorney general, John Ashcroft, resisted John’s entreaties, which of course made him and me even more disconcerted. Condi Rice and Al Gonzales got ever more frustrated with us. Secretary of State Colin Powell, for his part, mostly just glowered. He had never hidden his unhappiness about having to attend any meetings on the EIT program, and by now he seemed totally fed up with the Agency in general, angry—understandably, to be sure—that the CIA’s faulty assessments on the Iraq WMD issue had caused this proud and revered public servant to look like a fool in the wake of his high-profile speech at the UN the year before. (Around this time, the CIA analyst assigned to give Powell his daily intelligence update reported back that the normally courtly Powell was growing increasingly surly at these sessions. In the aftermath of the U.N. debacle, his attitude indicated he had trouble believing anything we were telling him.)

  Finally, grudgingly, the Principals blinked first in the showdown. Ashcroft agreed that the OLC would prepare a new, updated set of legal memoranda on the EIT program. In the meantime, we agreed to continue administering EITs to new, deserving Al Qaeda candidates coming into CIA custody. We attached one condition: the OLC would have to provide us with advance written legal approval, on a case-by-case basis, for each of the techniques we proposed to employ on each new detainee entering the program. Everyone agreed to proceed on that basis.

  And so the specific OLC approvals began coming to us in the summer of 2004. There were four of them, all classified top-secret and signed by Dan Levin, the new acting head of the OLC. Since I was now back as acting general counsel, they were all addressed to me. They were short and to the point, and each contained a boilerplate sentence promising that the OLC would “supply, at a later date, an opinion that explains the basis for this conclusion.” Those longer, detailed OLC legal analyses did not begin arriving until almost a year later, in May 2005, and kept coming until July 2007. Again, they were all addressed to me.

  In total, during the course of the EIT program from 2002 through 2007, there would be ten major OLC legal opinions issued to the CIA regarding the program. I was serving as acting GC on each occasion, so my name appears in bold print on top of each and every one. When the Obama administration decided to declassify and release them in April 2009, the media immediately dubbed them “The Torture Memos,” a shorthand term that seems destined to live forever. Some in the blogosphere, in turn, took to referring to me as “The Torture Advocate.”

  Some guys have all the luck.

  CHAPTER 13

  Enter Porter Goss (2005)

  In early fall 2004, Porter Goss arrived at Langley as the new DCI. He had a unique set of credentials that made him seem tailor-made for the job. A longtime Republican congressman from Florida, Porter was fresh off a stint as chairman of the House Intelligence Committee. Moreover, as a young man he had joined the CIA in 1960 and served for the next decade as a clandestine service officer before having to resign because of illness. An independently wealthy conservative, he appeared to have all the right stuff to lead the Agency.

  From a distance, he had appeared to be a courteous, low-key guy, but he had been surrounded at the HPSCI by a cadre of ambitious, pugnacious aides who had rubbed many senior career officials at the Agency the wrong way. He brought most of them with him to the Agency—contrary to the private advice he got from Acting Director John McLaughlin—and the word was soon being passed around the halls at Langley that the new director and his team (who quickly acquired the sobriquet “The Gosslings”) were about to start a purge of all Agency executives who had been part of George Tenet’s inner circle.

  I assumed that included me, but even if the rumored mass purge did not come to pass, I had no expectation that I would stay in the number one chair in the OGC for very long. After all, Porter didn’t know me, and I figured that surely either he or the White House had someone waiting in the wings to nominate for the general counsel position. A week or so after Porter’s arrival, we had a brief courtesy visit in his office, which was pleasant but uneventful. Up close, he seemed to be as courtly and unassuming as the impression I had gotten from a distance, and he certainly didn’t appear to fit the stereotype of the backslapping, self-important politician. In fact, my impression was that he was a remarkably shy man. He told me at that first, short meeting that he hadn’t given any thought to who the new general counsel might be, and I believed him.

  Within a few weeks, most of George Tenet’s closest associates on the seventh floor had departed from the scene. First to go was George’s handpicked deputy, McLaughlin, followed by Executive Director Buzzy Krongard, Deputy Director for Intelligence Jami Miscik, and the DCI chief of staff, John Moseman. I had developed great admiration for all of them over the previous years, but they were gone, and that was that. A couple of months later, Deputy Director for Operations Steve Kappes was suddenly gone, too, and that was a far noisier parting. Steve, a revered career clandestine service officer, got into a fierce argument with Porter’s newly installed chief of staff, Pat Murray, and abruptly resigned, a move that sent shock waves around the building and dealt Porter’s image inside the CIA a blow from which he never fully recovered.
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br />   But as 2005 began, I was still standing as acting general counsel, and there was as yet no replacement on the horizon. So I just plowed forward and did my job. Foremost, that meant trying to keep the best handle I could on the EIT program, which was becoming more complex and controversial by the day.

  To that end, I thought it was high time for me to pay a personal visit to the Agency’s black site.

  By 2005, the prisons had been up and running for almost three years, and I suppose I could have traveled to see them earlier than I did. But I didn’t consider doing so a burning necessity—from the inception of the program, our lawyers in the CTC had been making regular trips to observe the facilities (the prisons would be periodically moved for security reasons), as well as the EITs as they were being applied to individual detainees. By all of their accounts, the black site, in each of its locations, was operating efficiently, pursuant to the detailed legal and policy guidance being constantly sent by CIA Headquarters.

  Still, I decided I should see everything myself, not just to lay eyes on what was happening, but to meet with the interrogators, the guards, and everyone else on site to answer their questions and to offer them assurances that what they were doing was still fully endorsed by the nation’s highest legal and policy-making officials.