Hard Measures

by Jose A. Rodriguez, Jr.

  How can that happen? First, you should know that when the CIA’s publication review board clears a book for publication, it does so on the basis of classification, not accuracy. Often when the publication review board demands that parts be cut (“redacted” is the term of art), readers think, “Oh, my gosh, there must be something really secret they are covering up here,” when in fact it may be something quite routine.

  I can tell you that it is much, much easier to get a book deal highly critical of the CIA than it is to write accurately and supportively of the work the Agency does. My caution is that the next time you read a news article or book or see a TV interview involving a former Agency officer telling you the secrets that “the CIA doesn’t want you to know,” give some thought to the possibility that he is making up stuff or leaping to conclusions that the media want to believe.

  Readers may wonder why I don’t give the names of the people I have just cited. There are a variety of reasons—but chief among them is my desire to write about actions rather than personalities. Those who closely follow the debate about the interrogation of al-Qa’ida detainees will easily be able to identify these people. My goal is simply to caution observers to take what they read from critics like this former FBI agent and two former CIA officers with a very large grain of salt.

  Chapter 8

  THE TAPES

  It seemed like a good idea at the time. In April 2002, when a badly wounded Abu Zubaydah came into the CIA’s custody, someone in CTC suggested that we videotape his interrogation. There were a couple of reasons why that seemed appropriate. Our people at the black site felt that tapes might help them study AZ’s body language for nonverbal hints about the critical information he was trying to hide. Their view mirrored a famous quotation from Yogi Berra: “You can observe a lot by watching.”

  Those of us back at CIA headquarters, however, had a different motivation. Zubaydah had barely survived the bullet wounds suffered during his capture. He made it only because of the skill of a top-notch medical team, including that of a surgeon from Johns Hopkins whom the CIA flew out to treat him. But even with great medical care, AZ came close to dying on several occasions.

  After a short period of recovery, he was judged well enough to be questioned during times of consciousness. But we were concerned that he might take a sudden turn for the worse. We wanted videotapes of the questioning sessions to be able to prove that nothing we did had worsened his condition, should he suddenly die.

  So as AZ underwent his initial interrogation by CIA and FBI personnel in April, the tapes rolled. During this period, he occasionally gave up useful information but became increasingly resistant. There followed a few-week stretch during which he was essentially put in isolation, with very limited human contact. There was no reason to tape during that period.

  Then, starting on August 4, 2002, AZ was reengaged and subjected to increasingly significant EITs, as described in an earlier chapter. During this period, Zubaydah was, once again, videotaped during his interrogation.

  It turned out that the taping was of limited value as far as picking up nonverbal hints from his demeanor. We had enough eyeballs on him, both with him as he was interrogated and nearby watching live on closed-circuit TV, that our officers had no problem in picking up the significance of whatever he said or didn’t say. It turned out that Agency personnel at the black site rarely turned to the videotape as they were preparing their intelligence reports to send back to Washington. Their contemporaneous notes and observations were detailed and accurate.

  And the rationale for videotaping to demonstrate that “if he died it wasn’t our fault” also melted away as AZ’s medical condition stabilized and he grew stronger.

  So at some point toward the end of the application of EITs to Abu Zubaydah, CIA officers at the black site asked themselves, “Why are we still taping?” They weren’t getting anything out of the tapes, and since Agency officers could clearly be seen in the tapes interrogating AZ, it was clear that if the videos were ever released or leaked they could pose serious safety concerns for the people depicted on the tapes and their families.

  When the EITs for Abu Zubaydah were in their final days, Agency officers at the black site sent word back to CIA headquarters that they viewed the continued retention of the videotapes as posing a serious counterintelligence and security risk and recommended that they be authorized to stop taping and destroy the tapes already on hand. There was no mention or concern that they were embarrassed by their own actions shown on the tapes. But they recognized that there was little to no intelligence value in making the tapes and it was clear that the images could put Agency officers at risk. So, as I recall, on August 20, 2002, our people at the black site made a seemingly simple request that the tapes and taping be done away with. What followed was more than three years of hand-wringing and bureaucratic backpedaling until I made what turned out to be a fateful decision.

  The request from the field to destroy the tapes went to our lawyers for consideration. The public, I suspect, would be very surprised to find out how ubiquitous lawyers are at the Agency. We had a ton of them. Don’t get me wrong, I valued their counsel and support very much. We had a number of excellent lawyers assigned directly to CTC and many more throughout the Agency and on the staff of the general counsel. I am not sure exactly how many lawyers there were at the CIA but before 9/11, I believe they would have outnumbered the paramilitary officers we had in our Special Activities Division. General Mike Hayden, who was CIA director from May 2006 to February 2009, used to say that he had more lawyers on his staff than some of his foreign counterparts had officers.

  The lawyers took the request to destroy the tapes under advisement. Meanwhile, the EIT program was just getting off the ground. When Congress came back from its annual summer recess in early September, I led a team from CTC to Capitol Hill to inform the senior leadership of our two oversight committees about the existence of the EIT program. Those discussions deserve special focus of their own, and I will get back to that—but for the tape story, suffice it to say that the congressional leadership was aware that the early interrogations had been videotaped but that we intended to stop that practice and destroy the existing tapes.

  A little more than two months after the initial request from the field came in, the Agency’s Office of General Counsel pronounced a decision on future taping. On October 25, headquarters told the field that in the future they should record one day’s interrogation sessions on a videotape and then record the next day’s on the same tape, recording over the previous material. That prevented the stockpile of videotapes from overwhelming the black site but did nothing to alleviate the concerns about all the tapes already made (by that time numbering more than ninety). By this time, a second high-value al-Qa’ida detainee, al-Nashiri, had joined AZ at the black site, and his interrogation was also videotaped.

  A month later, in November 2002, headquarters advised the field that some news organizations were working hard to identify the location of the black site and that there might be press accounts soon speculating about where this secret site might be. That raised new security concerns, and the officers on scene sent in a renewed, expedited request for permission to destroy the existing stockpile of tapes. The lawyers said “no,” or, more precisely, “not yet.” They wouldn’t sign off on the destruction of the tapes until they assured themselves that the written record of what happened in the interrogation sessions was accurate and complete. So they launched one of the assistant general counsels, a very senior Agency officer, out to the field, where he spent ten days viewing and cataloguing what he found to be ninety-two videotapes. On twelve of the tapes were scenes of EITs being applied. Many of the others were simply surveillance of our high-profile guests in their cells. The AGC diligently worked his way through the stack of tapes and reported that what he saw was in compliance with what the Department of Justice had authorized in August and was entirely consistent with what our officers in the field had reported back to headquarters in their w
ritten reports. Still, no decision was made to authorize the destruction of the tapes.

  In December 2002, John Helgerson, the CIA inspector general (no fan of the EIT program), became aware of the existence of the tapes. The day after Christmas 2002, the Agency’s general counsel informed the director of Central Intelligence that he had no objection “in principle” to CTC’s continuing requests to destroy the tapes but recommended that we hold off until January, when a new Congress would be sworn in and fresh leadership would arrive at our oversight committees. The general counsel recommended that the CIA “inform” the committees of our intent, but also noted that if they objected and told us to retain the tapes or demanded to review them themselves, we would be in a strong position to deny the requests on security and operational grounds.

  In meetings and conversations throughout the fall of 2002, I keep pushing for a decision that would allow us to do the right thing regarding the tapes. The delay was frustrating, but I had so many other things on my plate that I could not afford to obsess about the tapes. After all, we’d been waiting only four months, right?

  In February 2003 the new leadership of the House and Senate intelligence committees was briefed on the existence of the tapes and the Agency’s intent to destroy them. On February 4, Senator Pat Roberts (R-KS) quickly gave his assent. His Democratic counterpart, Senator Jay Rockefeller of West Virginia, was not present, but his staff director and another senior staffer were there and were expected to brief Rockefeller. The next day the chairman of the House committee, Porter Goss, and his ranking member, Congresswoman Jane Harman, were also briefed. Goss was supportive of our plan but Harman later sent a classified letter to the CIA urging us to “reconsider because even if the videotapes do not constitute an official record that must be preserved under the law, they could be the best proof that the written record is accurate.”

  Despite firm legal opinions from within the Agency that we had the right to destroy the tapes and either support or lukewarm opposition from the Hill, the Agency’s top leaders still wouldn’t pull the trigger on destroying the tapes.

  Then the IG did what the IG always does and decided to investigate. I had no problem with that. There had been some problems with the interrogation program—as with every program. Those issues were self-reported by our own people. More so than other organizations, the CIA regularly conducts due diligence on itself. This was to be an investigation of the entire interrogation program. That put a hold on any possible decision to take action about the tapes. Eventually, the IG staff concluded that destroying the tapes would be within our rights. Two investigators reviewed the tapes, logs, and cables at the foreign site and concluded that it was up to Agency management to decide what to do with the tapes. I thought this was significant, since the IG shop had always been hostile to the EIT effort. Inspector General Helgerson once described it to a group of senior Agency officers as “that hideous program.” If he couldn’t find a reason to object to destroying the tapes, it had to be okay. But still, we waited.

  In September another senior Agency attorney, a different assistant general counsel, took a crack at the legalities. After examining the issue, she reported in writing that the record showed that for “grave national security reasons,” retention of the tapes presented “grave risk” to the personal safety of our officers and required the destruction of the tapes. And still, we waited.

  In January 2004 the same attorney reiterated her written opinion but added that we should consult the inspector general (who had already weighed in on the matter) before taking action. And still, we waited.

  Yet another assistant general counsel provided a written opinion in early April saying that there were no legal requirements for the Agency to retain the tapes.

  In late April 2004, there was an explosive event that added to our conviction that getting rid of the tapes was vitally important. That month, truly awful photographs appeared in the media showing U.S. Army troops brutally abusing Iraqis held at the Abu Ghraib prison. The disgraceful and disgusting treatment of these prisoners had absolutely nothing to do with the interrogation program run by the CIA. Our program, blessed by the highest legal authorities in the land, conducted by trained professionals, and applied to only a handful of the most important terrorists on the planet, bore no relation to the unauthorized actions of a handful of low-level army troops. The justifiable outcry about the abusive treatment shown in the Abu Ghraib photos, first on 60 Minutes II and later in magazines and newspapers around the globe, did huge harm to the image of the United States. President Bush apologized for the actions of these sick soldiers and Secretary of Defense Rumsfeld offered his resignation to atone for their mindless actions.

  We knew that if the photos of CIA officers conducting authorized EITs ever got out, the difference between a legal, authorized, necessary, and safe program and the mindless actions of some MPs would be buried by the impact of the images. The propaganda damage to the image of America would be immense. But my main concern then, and always, was for the safety of my officers.

  The image of Private Lynndie England holding a leash attached to a naked, anonymous Iraqi was devastating. The reaction from around the world was one of disgust. She was later (quite appropriately) sentenced to three years in prison and dishonorably discharged. But what if a photo of a senior al-Qa’ida leader being waterboarded by CIA officers were to get out? The image might be disturbing, but more troubling to me would be the possibility that al-Qa’ida and its supporters would use the photo to track down Agency officers and exact revenge on them or their families. To me the Abu Ghraib debacle provided more evidence that it was urgent to take action about the CIA videotapes. To others it was yet another reason to do nothing.

  By this time, the bureaucratic “mother-may-I?” instincts of the CIA had kicked into high gear. The Agency’s general counsel, Scott Muller, decided to check with senior lawyers at the Department of Justice and the Office of the Vice President for their views. Not unexpectedly, the answer he got was that it probably wasn’t a good idea to destroy the tapes “right now.” And so, we waited.

  The CIA IG completed the lengthy (and in my view highly flawed) report on the Agency’s overall interrogation program in May. That report was forwarded to the leadership of the House and Senate intelligence committees in June. The report contained three substantive paragraphs about the videotaping of interrogations.

  We know some people on the Hill read the report. Senator Rockefeller, who would later claim that he and the committee were kept largely in the dark about the issue, requested several documents mentioned in the IG report, including the document created by the assistant general counsel who had reviewed and inventoried the tapes for the express purpose of determining whether it was okay for us to destroy them.

  Frequently during the several-year period after our officers in the field first requested permission to destroy the tapes, I would bring up to the general counsel and other senior Agency officials my concerns about the lack of a decision and the foot-dragging that we were experiencing. To bureaucrats in Washington, discussions over the fate of the videos were an interesting legalistic debate. To the men and women depicted on the tapes, the lack of will to remove this potential threat to their personal safety was more than a little troubling. By this time I had moved up to become the deputy director of Operations. I was now one of “them,” one of the “seventh-floor” people who were supposed to make all the big decisions. I remained something of a pest to the Office of the General Counsel, trying to get a decision, and the right one, made.

  I later learned that in March of 2005 the acting general counsel, John Rizzo, a highly experienced and capable career Agency lawyer (known for his seemingly never-ending supply of tailored suits with matching suspenders, socks, and pocket squares), had met with CIA director Porter Goss and told him of the great angst within CTC and the Directorate of Operations about this issue, which at that point had lingered more than two and a half years since it had first been raised. Goss, like his predec
essor, was reportedly uncomfortable about ordering the elimination of the tapes. Rizzo decided to raise the issue again with the White House counsel, Harriet Miers. At the time, Miers was on the brink of being nominated as a Supreme Court justice, a nomination that would be withdrawn a few months after it was made. She apparently told Rizzo that she, too, was uncomfortable with our ridding ourselves of the tape albatross just then. I say “apparently,” because I have no recollection of Rizzo ever sharing with me her views, except for being told orally that she had “not yet” given her okay. Years later, the special prosecutor who would be appointed to look into the matter surfaced a single email Rizzo allegedly sent me in 2005 saying Miers had expressed qualms, but if I ever saw it (and I don’t think I did), it made no impact on me. Just another lawyer saying: “I’d rather you not….”

  In July there were meetings at the White House during which Rizzo and other CIA lawyers met with Miers and reps from the NSC and the vice president’s staff. The consensus, I later learned, was that while there was no—repeat, no—requirement to retain the tapes, they recommended that the newly created director of national intelligence and the Office of the Attorney General be “briefed” before the destruction took place.