88 Days to Kandahar: A CIA Diary (57 page)

Early on in the interagency process, I was approached by Steve Cambone, the under secretary of defense for intelligence. Recognizing that our two agencies were the keys to the “end game,” he proposed that he and I hold a series of meetings off-line to work out a strategy for “black site” detainees; if we could agree, he reasoned, the other agencies would fall in line. Steve was not much trusted in my building because of his close association with Rumsfeld. It was true he could be very clever in advancing his secretary’s agenda; that was his job. But I always found Cambone to be decent and reasonable. He soon came to realize that there was no alternative but eventually to move CIA’s detainees to Guantánamo, and he helped to work through a strategy designed to get us there. I believe he worked in good faith to convince Secretary Rumsfeld to agree to it. He would fail to deliver his boss in the end, but I’m sure it was not for want of trying.

When, in November 2005, Dana Priest of
The Washington Post
came out with a series of articles exposing the fact that CIA was interrogating terrorist suspects in a string of “black sites” in foreign locations, the pressure on us increased exponentially. The reaction of those hosting these secret prisons was about what one would expect. Their cooperation was based on our ability to maintain the secret. Even if they themselves had not been exposed—and of course they could not be sure how accurate the
Washington Post
stories were about others—the fact that the program had come to light at all undermined their confidence. Several asked us to pack up and leave as quickly as possible. This further ratcheted up the pressure to decrease our detainee population and shift those we still needed to hold elsewhere. Again Guantánamo came into the conversation. Still Rumsfeld refused. He was trying to decrease the population at Gitmo, he pointed out, not increase it. Left unsaid was that he was already tarred with Abu Ghraib. He saw no reason to be connected to CIA prisons and interrogations as well. If CIA had a problem, he saw no reason why he should have to take responsibility for it.

If all that were not bad enough, another large shadow loomed on the horizon that fall, threatening the legal underpinnings of the CIA interrogation program so recently won in June. Senator John McCain of Arizona was one of the most powerful and influential members of the Republican Party. As a former prisoner of war and survivor of brutal mistreatment at the hands of the North Vietnamese, he also spoke with unparalleled moral authority on the issue of torture. He was loudly uncomfortable with what he understood to be administration policy on interrogation, and indicated he would introduce new legislation to deal with it. It wasn’t clear at first if McCain was solely concerned with the military, but even if so, it appeared that CIA’s interrogations might be an unintended victim of whatever legislation he introduced.

Again, Vice President Cheney took the lead. Convinced that CTC’s use of enhanced interrogation techniques was critical to national security, he set out to persuade McCain to provide a “carve-out” that would exempt CIA from his legislation. I thought it a very bad idea, and said so in a meeting with Goss and the acting general counsel. The legislation simply banned “cruel, inhuman or degrading treatment or punishment.” That was already the law. Did we want exemption from that? The point of potential disagreement did not regard the principle, but the way it was interpreted. Nonetheless, Cheney and Goss met alone with the Arizona senator to brief him on our program. After sitting in on Goss’s “pre-brief,” I felt uncomfortable. He seemed not to have a good grasp of the details of the program; but in the end it didn’t matter. From Goss’s account of the meeting, Senator McCain was not prepared to listen to anything he had to say anyway. No one was going to convince him that our methods didn’t amount to torture. His legislation passed the Senate in October as an amendment to a supplemental military appropriations bill.

Things got worse from there. Expecting to get greater support in the House, the National Security Council continued negotiations with McCain’s people to win protections from future prosecution for CIA personnel who were acting in good faith on the basis of Justice Department legal approvals. It became obvious that McCain didn’t trust Bush’s Justice Department to interpret the law, and so would not provide
CIA employees such assurances. He wanted them to be potentially subject to prosecution by a future administration if it decided, after the fact, that Justice’s legal rulings had been incorrect. On the other hand, he wouldn’t specify what CIA would be permitted to do; instead, he chose to leave them in doubt as to their legal standing if they went beyond what the military was permitted. Now we were in an even deeper hole: these discussions would become part of the “legislative history” of McCain’s bill, and determine how its intent would be interpreted by the courts.

Confronted with the twin threats of exposure of the black sites and House passage of the McCain Amendment, the interagency process kicked into high gear. Beginning in early November, J. D. Crouch, the deputy national security advisor, chaired a feverish series of so-called “Tiger Team” meetings, comprised of senior representatives from State, Justice, Defense, and CIA. Our charge was to work out the “end game” for terrorist suspects in both CIA and DoD custody, and to explore how the CIA interrogation program might be adapted and saved in light of McCain. Tiger Team recommendations would go up for consideration by the Principals’ Committee. I and my senior lawyer, Bob Eatinger, represented CIA. As the late-evening meetings churned on, I had a growing sense of despair. In mid-December, Rumsfeld was still adamant that he would not accept CIA detainees at Guantánamo, and it was even clearer that there would be no protections for CIA in McCain’s pending legislation. His amendment limited the military strictly to interrogation methods prescribed in the
Army Field Manual
, which did not allow anything more aggressive than various forms of the “good cop, bad cop” routine. It did not address CIA explicitly, but provided no exception for it, either. CIA officers could follow Justice Department guidance, but would do so at their peril. The pressure from all sides was becoming suffocating.

At a meeting in the White House Situation Room on December 20, again chaired by Crouch, he reminded me that it was CIA that had made such a strong case for the importance of the EITs. For the safety of the country, we would have to carry on. “Can’t you convince the interrogators to continue?” he asked.

“I probably could,” I said. “These people are highly dedicated. I’m sure they would continue if I let them. But I won’t. If McCain passes, they will have no legal protections. If I allow them to continue under those circumstances, where is the leadership in that?” I told him that if the bill passed, we would do nothing beyond what was permitted in the
Army Field Manual.

I was out on a limb, and he knew it. He looked at me steadily. “Is that the CIA position?”

Though we hadn’t discussed it—we were barely speaking—I felt confident that Rodriguez would back me up; he was all about protecting our people. But I honestly didn’t know where Goss stood on this. “It’s the DO [Directorate of Operations] position,” I said. I hoped to get Goss’s support as well, but in the end it really wasn’t going to matter. Without appropriate legal protections for our officers, we weren’t going to continue as though McCain hadn’t happened.

Back at Langley, I reported to Goss on what I’d told the NSC and the interagency. “You did?” He sounded pleased. By his account he’d been excusing himself at the White House for some time, protesting that he couldn’t order us to move forward with coercive interrogations if we refused. “This isn’t the military,” he’d said. Now, to his relief, I was substantiating his warnings.

On December 23, Andrew Card, the president’s chief of staff, paid a visit to CTC on short notice. I gave him a walking tour of our Global Response Center, and then ushered him into a small conference room to meet with the managers of our detainee program. Card thanked them and stressed the importance of what they were doing for the safety of Americans.

Finally, he said, “I’d like to know if there is anything I can say that would increase your confidence. Is there anything you would like to hear from me? You should know that I begin every day the same way: I walk into the Oval Office, and say, ‘Pardon me, Mr. President.’ ” There was a moment of confused silence. His words rolled out on the table, as though daring someone to pick them up.

Quick calculations ran through my head. Was Card suggesting what I thought? Could the White House really provide preemptive
pardons to protect against something a future administration might do? Surely the president would only do it at the end of his term. But a promise now to do something then would be worthless; could one get such a commitment in writing? And was it even worth exploring? This sounded like the pardon former President Ford had provided to Nixon. How would that look? Wouldn’t it appear like a tacit admission that we were violating the law? Anyway, how could we trust these people? If they were really concerned about protecting us, wouldn’t they be standing up more forcefully to McCain? Instead, they were claiming confidently that a compromise would be reached, when in fact there was none in sight. No, I concluded; we wouldn’t go down that road.

Card and I chatted amiably as I walked him out to his waiting car. Nothing about pardons was ever said again.

In the end, my suspicions were confirmed. The opportunity for a last-second reprieve in the House came and went a few days later. Duncan L. Hunter, the Republican chairman of the House Armed Services Committee, threatened to withhold the supplemental Defense Appropriations bill from a floor vote unless he received firm assurances from the intelligence community that passage of the McCain Amendment would not harm counterterrorism efforts. The administration wanted that legislation; the appropriate assurances were arranged. The bill, with the McCain Amendment attached, passed on December 30, 2005. The White House had caved, disingenuously claiming success in its negotiations. The president was even photographed shaking hands with McCain.

I believe it is a reasonable view, perhaps the correct one, to argue that Americans should never engage in any form of coercive or abusive interrogation. It seems to me that those making that moral argument also need to be prepared to follow their principles in all circumstances, and to accept a higher degree of risk, even if it means their fellow citizens may be killed, in order to uphold them. Unless they’re willing to say that—and in my experience, very few are—I have trouble taking them seriously.

For me and others, this was not an academic question. It involved hard decisions, with real consequences either way. When I headed CTC, I did not consider what we were doing to be torture; nor do I think so now. As I reflect, putting myself where I was then, knowing what I did about our past success, having the concerns about imminent attack that we all did, and with the legal assurances we had, I still come out in the same place I did then.

CIA has borne a considerable degree of opprobrium for its part in what once was called the global “War on Terror.” It still does today, especially in the context of targeted killings. But it seems to me that if people have problems with policy, they should bring their concerns to the policymakers; and if they disagree over legal interpretation, they should complain to the U.S. attorney general. That doesn’t absolve CIA people from personal responsibility. Individuals in CIA, as elsewhere, can and should make decisions for themselves about whether they feel morally justified in doing as they are ordered, irrespective of its legality; they should decline, as individuals, to follow those orders, and even to resign, if they do not. But it is manifestly not in the interest of the American people to foster an institutional climate that encourages their national intelligence service to decide for itself which of its legal orders it will follow, and to decline to carry out those assignments it deems risky or inconvenient to itself. I had seen this tendency earlier in my career, when some had ducked the dicey effort to overthrow Saddam Hussein. I had disapproved of their behavior then, and I disapprove of it now. If we are not careful, institutional insubordination will be the unwanted legacy of our collective moral ambiguity on the difficult measures which have been taken, and are still being taken now, to deal with vicious, committed non-state actors who hide in the shadows, and plot to do us harm.

I did not then, and do not now have any problem with Senator McCain’s views concerning interrogation. My problem with him, perhaps ironically, was a moral one. His legislation could have directly addressed the matter of CIA, as well as military interrogations. Rather than publicly clash with the administration, he chose not to. Instead, he tried to achieve the same result indirectly by putting the troops—my
troops—at legal risk. I did not consider that a highly principled stand. Nor was the senator entirely consistent. Around this time, McCain was asked in an interview how he would deal with a classic conundrum: There is a nuclear bomb set to go off somewhere in the United States, and we have a limited amount of time to learn its whereabouts from a terrorist in our custody. What do we do?

“You do what you have to do,” he said.

In January 2006, the Tiger Team continued its deliberations. I made clear, again, that we would not continue interrogations as though nothing had happened, but that we would adapt to the new post-McCain reality. A Principals’ Committee meeting was scheduled for CIA to report on its strategy. I and my staff drew up a set of briefing slides, and I met on January 13 with Rodriguez and Goss to discuss them. In the brief I stated that though loss of the enhanced techniques would make our program less effective, we could still continue to question terrorist suspects, limiting our interrogation to those techniques specified in the
Army Field Manual.
Both Goss and Rodriguez dismissed the brief out of hand.

“Without the EITs, we can’t continue the program,” Goss said. “We’re out of the interrogation business.” Rodriguez strongly agreed. I thought they were both being irresponsible and childish. Yes, we had to protect our people and make sure we were on the right side of the law, but we still owed it to the country to do what we could with what we had. We hadn’t had to use EITs on a majority of our detainees, and the most powerful interrogation weapon we had, still, was our ability to bring knowledge to bear. No one could do that as well as we could. Instead, these two wanted to pick up their marbles and go home. That sort of posturing might sound good in the safe confines of one’s own conference room, but I knew it wouldn’t travel well. When I protested again, they cut me off.