We also prepared—with the permission of the Bush White House—to start providing the President’s Daily Brief to the winner as soon as possible after the election. But the White House added a crucial caveat—only the president-elect and those he had already publicly named to a senior national security post could receive the PDB. No one else.
This was not the White House playing politics. This was President Bush continuing his eight-year practice of limiting the number of people who received the PDB, in order to protect the information in it. During my one year briefing the president, it had fallen to me on several occasions to make the case to add someone to the dissemination list. Bush would always ask tough questions about the person’s need to know—and these were senior officials in his own administration. In each case he would say to me, “The more people who receive the PDB, the more you will water it down.” He was right. That was exactly the way it worked.
McConnell also requested that I go to Chicago—or Phoenix, if McCain had won the election—for the transition, to be the on-scene coordinator for getting the president-elect up to speed on intelligence matters. McConnell had chosen two senior analysts to be the newly elected president’s daily intelligence briefers, but McConnell wanted me in the room as well. In a reversal from my Bush briefing days, I would now be doing the color commentary, while others would be doing the play-by-play.
With Obama’s victory, McConnell said that he wanted to do the first two briefings himself for the president-elect—they were set for Thursday and Friday, November 6 and 7, starting just two days after the election. McConnell requested that I and one of the two daily briefers join him, so that he could introduce us. The briefing was set for nine a.m. in a secure conference room at the FBI’s field office in Chicago.
Just before nine the president-elect walked in, all smiles, accompanied by several of his aides who had handled national security matters during the campaign and who were destined for top jobs in the administration. The group included Denis McDonough, Mark Lippert, and Jim Steinberg. After introductions and congratulations, McConnell apologetically made it clear that his instructions were that only Obama was to receive the briefing, not the others. The president-elect in turn made it clear that he wanted his team in the room. I appreciated the president-elect’s position. What he was asking for made perfect sense: he wanted to have conversations with his senior aides about the policy implications of what he was reading and hearing. McConnell, however, stuck to his White House guidance—although I was thinking, “Now is the time to be flexible, let them all in the room, and ask for forgiveness from the White House later. This is about building relationships that will last for the next four or eight years.”
The smiles and sunny attitudes disappeared. Neither side wanted to budge. Obama and his team caucused in a nearby office, with the president-elect eventually returning and saying, “OK, I’ll take the briefing today, but from tomorrow on you can just send it to me to read myself—until you include my guys.” The intelligence community had gotten off to a very bad start with its new boss.
While the plan had been for McConnell to stay in Chicago for one night and for me to stay for several weeks to oversee the daily PDB sessions and facilitate other substantive briefings for Obama during the transition period, that no longer seemed to make any sense, since he had no desire to take any in-person briefings without his team. So McConnell and I decided to fly home, but the Air Force jet that had brought us to Chicago had departed and it was not due back till the next day.
We improvised. Although the DNI’s security detail did not like it, McConnell decided that we would fly back to D.C. on a commercial jet—it would save us time and save the taxpayers money. McConnell and I—and two of his security agents—were whisked through O’Hare Airport security and put on the plane before the other passengers boarded. On the plane we met two federal air marshals who happened to be assigned to the flight to Washington’s National Airport. A conversation ensued between the marshals and McConnell’s security detail. The marshals asked, “Are you guys armed?” Answer: “Yes.” The marshals went on, “Well, just so you know, we are armed as well, and so are both the pilot and copilot of the flight.” I was thinking, “If anyone tries to hijack this plane they are in for one helluva surprise!”
A couple of weeks later the Bush administration relented and agreed to allow a couple of designated Obama aides to be present for the briefings. I returned to Chicago and, working with McDonough and Lippert, began to coordinate a wide-ranging series of briefings for the president-elect and his team on matters such as counterterrorism, counter-proliferation, Middle East peace, and regional hot spots. I worked hard to improve relations that had turned as frosty as a Chicago winter, and ended up spending the better part of a month in the Windy City.
I found the president to be reserved in many of the briefings, asking few questions. McDonough and Lippert, on the other hand, asked many questions in front of their boss and shared their views on issues. The president-elect listened intently to what they had to say. It struck me that they felt comfortable enough with their boss to talk for lengthy periods and even to take over the conversation. To me this signaled that Obama was willing to listen to the views of others and to create an environment where his subordinates felt they were welcome to speak—incredibly important traits, I believe, in any decision-maker.
* * *
One of the briefings I organized, held on December 9, was the president-elect’s first orientation about the most sensitive operations of the intelligence community—covert action. These are operations conducted by CIA with the express written authorization of the president through the use of a presidential finding. They are among the most sensitive and secret actions of the US government, and any new president needs to be briefed on them before being sworn in—because they are his programs and he needs to be comfortable with them. This brought the rendition, detention, and interrogation issues to the table for the first time with the new president.
While I was unable to attend—I was back in Washington—the briefing was led by my boss, CIA director Mike Hayden. As part of the agenda, Hayden gave the president-elect and his team their first in-depth briefing on enhanced interrogation techniques. Hayden, hoping that the session would ease the president-elect’s opposition to the program, explained that there was much misinformation about these techniques. Hayden stressed the valuable intelligence gained by the program and emphasized that only six enhanced techniques were available for use; he also emphasized that those still authorized, like the original list of ten, had been deemed by the Department of Justice not to be torture. To make the point he demonstrated one of them, the open-hand facial slap, on Deputy DNI David Shedd.
Several months later I heard from several of Obama’s top aides that the president-elect had reacted to the briefing in a way quite different from what Hayden had intended. It actually convinced the president of the impropriety of the techniques and cemented his view on what to do about them. On January 22, 2009, President Obama’s second full day in office, he signed an executive order banning the use of all the enhanced techniques and ordering that any future interrogation by any government agency follow the rules laid out in the Army Field Manual. He also directed CIA to close any remaining detention facilities (which had been emptied in 2006) and never operate them again. Although it went largely unnoticed by the media, the president did an about-face on the practice of rendition. He subtly endorsed the continued use of renditions—calling them “short-term transfers”—but in doing so he required greater oversight from the executive branch.
In announcing the new approach to renditions, detentions, and interrogations, Obama made clear that he did not want to look backward at what the Bush administration had done. He wanted to move forward. He wanted to put the past behind us. Indeed, he had told George Stephanopoulos a few days before signing the executive orders that he was not interested in a broad investigation of Bush-era interrogation programs.
* * *
It quickly became clear that not looking in the rearview mirror was wishful thinking. Obama’s first choice to be CIA director was John Brennan, the co-leader of the president-elect’s transition team for the intelligence community and an advisor on national security issues to Obama when he was on the campaign trail. But Brennan had been the number four in the Agency’s hierarchy when the detention and interrogation program was established in 2002, and human rights groups came out strongly against his nomination. Brennan, not wanting to subject the president to an early nomination fight, withdrew his name from consideration. Obama instead brought Brennan into the White House to be his counterterrorism czar, a position that did not require Senate confirmation.
Obama then turned to Leon Panetta to be his chief spy. In his confirmation hearing to become the new CIA director, liberal members of the Senate Select Committee on Intelligence (SSCI) insisted on asking Panetta if he thought that waterboarding amounted to torture. Panetta said yes. CIA officers who had been involved in the program, and who had been assured by the Department of Justice that waterboarding was legal and not torture, were not happy. Panetta eventually won over these officers, but it was a rough start.
The look backward would continue in March 2009, when the SSCI decided by a vote of fourteen to one to do a review of CIA’s defunct detention and interrogation program. Chairman of the Committee Dianne Feinstein and Vice Chairman Kit Bond, in a joint press statement, said that the purpose of the review was “to shape detention and interrogation policies in the future.” They noted that the review would include a close look at documents, as well as interviews of Agency officials. Feinstein later told me that she was motivated by a strongly held view that it was morally wrong for the Agency to have used EITs, and that the Agency should never do so again, no matter who the president is. Feinstein said that she wanted the committee’s report to be the nail in the coffin. The timing of the investigation reflected the fact that Feinstein had become chairman of the committee in January 2009.
* * *
Senator Feinstein is someone I got to know well during my time as deputy director. She has strongly held opinions on many issues. I have deep respect for her passion about national security and the importance of intelligence to keeping the country safe. There are few members of the Senate who can match her in these regards. She is also innovative. During Panetta’s early tenure as director, she began what would become a series of “coffees” with the committee. Instead of the members’ sitting on a dais with the director or me at the witness table, we would all sit around a table together. The atmosphere was much more informal and the dialogue much richer. Feinstein even brought coffee and doughnuts—Krispy Kreme glazed—to the sessions. These sessions were so successful in keeping the committee fully informed that the concept spread to the House Intelligence Committee.
I cannot overstate the importance of congressional oversight. Since CIA is a secret intelligence organization operating in a democracy, it is vitally important that CIA’s two oversight committees—the Senate Select Committee on Intelligence and its House counterpart—satisfy themselves and make clear to the American people that CIA is operating within the law and that it is operating effectively.
During my seven-and-a-half years on CIA’s senior leadership team, I saw ups and downs in our relationship with the committees for a variety of reasons. I believe it is the responsibility of both the leadership of CIA and the leadership of the committees to make the relationship work, but at the end of the day the onus is on the CIA director.
I saw the relationship work best under Leon Panetta. Panetta’s approach was that he, I, and the rest of the leadership team—indeed, the entire Agency—should be completely open and forthcoming with the committee. When Congress believes—either accurately or inaccurately—that CIA is trying to hide something from them, things go downhill. Panetta also did the small things to help the relationship—for example, a phone call just to touch base or hosting a dinner in the director’s dining room—all of which paid dividends.
* * *
Director Panetta, although opposed to the committee’s study about CIA’s detention and interrogation program, nonetheless gave the committee unprecedented access to Agency files. In short, the committee had access to almost everything—millions and millions of documents. But in return Panetta requested that the committee review the documents—analytic pieces, intelligence reports, operational cables, e-mails, and more—in CIA spaces. The documents contained some of CIA’s most sensitive information—including information that possibly could lead someone to identify our sources. Thus began a bipartisan congressional review of the program.
A few months later, in August 2009, Attorney General Eric Holder joined the fray of those looking backward. DOJ’s Office of Professional Responsibility (OPR) had just handed him a report—based on an independent review it had begun in 2008—that sharply criticized the legal judgment of the DOJ attorney who had written the memos authorizing the Agency’s enhanced interrogation techniques, as well as the legal judgment of the attorney who had signed off on the memos. OPR had recommended to Holder that he take steps to hold the attorneys accountable for their poor work. Additionally it had recommended that he reopen earlier DOJ decisions not to pursue the prosecution of the handful of cases regarding potential abuse in the program that CIA had referred to the Bush Justice Department.
Holder had delegated the first recommendation to one of his senior aides to decide on (the attorney general eventually decided not to take any action against the attorneys), but he’d accepted the second recommendation. And on August 24 Holder announced that he was opening a preliminary investigation into whether any federal laws had been violated in CIA’s interrogation of detainees. It was another blow to putting the entire episode behind us, and it felt like a punch in the stomach to the officers of CIA who had earlier had cases sent to the Justice Department for review. This certainly felt like double jeopardy, although it did not meet the legal definition.
Holder’s decision also had an important impact on the SSCI review. Because the DOJ would be undertaking a criminal investigation, Director Panetta made clear that he would not compel current CIA employees to submit to interviews by the SSCI. This was exactly the right call on Panetta’s part, but it meant that the SSCI would likely not hear from current CIA officers who had firsthand knowledge of how the programs had been managed and operated—although the committee still could have asked employees to voluntarily appear for interviews, and could have done the same with former officials, including Directors Tenet, Goss, and Hayden. But the committee never asked in either case, and it never asked to speak with employees after the DOJ investigation was completed—well before the committee’s work was done.
The Republican minority on the committee, believing a thorough and fair review could not be done without interviews, in late December pulled its staff off the review team. None of this did anything to dissuade the majority, and the committee’s investigation continued. The study, at that point, ceased to be a committee effort; it was now only a Democratic majority effort.
In a somewhat reassuring development, Holder let it be known that no one would be prosecuted for actions that had been consistent with legal advice provided by the previous administration. His focus would be on anyone who might have gone beyond those authorities. Holder appointed John Durham as the special prosecutor. Durham knew the subject matter because he had been appointed by the Bush Justice Department to investigate an issue involving the destruction of videotapes of some of the Agency’s debriefings of senior al Qa‘ida operatives. But now he would be given access to an enormous amount of Agency records—every document ever produced regarding the detention and interrogation program—and to anyone whom he wanted to interview. There were now two separate inquiries under way about the detention and interrogation programs—which no longer existed.
* * *
The videotapes were the issue about which I first found myself thrust into the EIT issue. When EITs were first
employed in the field, CIA officers decided it would be a good idea to videotape them. This was done in large part for defensive purposes. Abu Zubaydah had been badly injured during his capture; if he died in captivity, our officers would want clear evidence that CIA had not killed him. But the tapings continued well after Zubaydah recovered, and soon the officers decided that videotaping was not such a wise plan and requested permission to destroy the tapes. The staff in the Counterterrorism Center and their bosses in the Directorate of Operations were in favor of destroying the tapes—but lawyers at CIA and White House as well as other senior officials (eventually including CIA director Porter Goss and Director of National Intelligence John Negroponte) said, “Not so fast.” This became a source of frustration and concern for a couple of years. CTC was worried because the faces of Agency officers were shown on the tapes; if the tapes ever leaked or were ever released, those officers’ personal security could be in jeopardy. Also, during this time ugly images from Abu Ghraib prison made their way into the news. Although there was no similarity between the actions of rogue army reservists in Iraq and those of CIA officers employing fully authorized interrogation techniques on a handful of known terrorists, the distinction would be lost if the CIA images became public. There was no doubt that waterboarding did not make a pretty picture, and publication of those images would have had a devastating effect on CIA, damaged the reputation of the United States abroad, and undermined the security of US officials serving abroad.
Frustrated by the lack of action, on November 8, 2005, Jose Rodriguez, the head of CIA’s operational arm, the National Clandestine Service, took it upon himself to order that the tapes be destroyed. Two Agency lawyers had told him that there were no legal obstacles to doing so and that whether he did or not was a policy call. So, despite the opposition from his superiors—Goss and Negroponte—and from the senior lawyer at CIA and senior lawyers at the White House, Rodriguez ordered the destruction and then told the chain of command. Almost exactly two years later, news of his action leaked to the New York Times, and the subsequent firestorm of criticism in the media and in Congress led to the appointment of a special prosecutor, John Durham, to investigate the matter. After a three-year investigation Durham ruled that he did not have grounds to prosecute Rodriguez, as Rodriguez had been told he had the legal authority to destroy the tapes. Durham concluded, however, that such legal authority had not existed and that Agency lawyers had erred in their legal judgment. Durham recommended that CIA conduct an internal “accountability board” to examine the performance of the attorneys in the matter and to assess Rodriguez’s performance as well.
The Great War of Our Time: The CIA's Fight Against Terrorism--From Al Qa'ida to ISIS Page 26