Company Man: Thirty Years of Controversy and Crisis in the CIA (3 page)

No wonder Jose wants them to be destroyed, I thought.

By comparison, the next item on our to-do list was easy: telling Congress about the existence of the tapes and why the Agency intended to destroy them as soon as feasible. Scott was part of the team dispatched in late January 2003 to brief Senators Pat Roberts and Jay Rockefeller, the leaders of the Senate Intelligence Committee, and their House counterparts, Porter Goss and Jane Harman. Their reactions, as Scott later reported to me, were typical of those of congressional leaders in any dicey, sensitive briefing I had ever participated in or heard about in my
years at the CIA. They sat there, clearly uncomfortable, said little if anything in response to what they were being force-fed, with a “Why are you telling me this?” look frozen on their faces, and gave every impression of wanting desperately to get the hell out of the room.

In fairness, I should note that shortly thereafter Jane Harman did send a letter to the CIA expressing concern about the wisdom of destroying the tapes. Otherwise, none of the leaders ever followed up about the issue until the story leaked to the media almost five years later.

Still, even with our lawyer’s report in hand and the congressional notification box checked, Scott and I weren’t prepared to green-light the destruction. Far from it. In 2003, several internal and external investigations were under way in which the tapes were potentially relevant, and we had to see how each would play out.

Early that year, CIA inspector general John Helgerson began a review of the still-unfolding interrogation program. We told Helgerson about the tapes, and he wanted his people to look at them. Helgerson’s office was already in the midst of a major investigation into the CIA’s failure to uncover and prevent the 9/11 attacks, and the CTC was the focus of the investigation. The tension between the two offices within the CIA was palpable. What’s more, Helgerson, an Agency veteran of more than three decades, had expressed to me misgivings about the wisdom and morality of the interrogation program. But I had developed great respect for him over the years as professional and fair-minded. I don’t recall anyone expressing any objection to giving the IG access to the tapes, and a couple of Helgerson’s investigators reviewed all of them sometime in 2003. In its report on the interrogation program issued in May 2004, the Office of the Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC’s numbers on how many waterboarding sessions were conducted, did not find that any unauthorized techniques were used on Zubaydah.

The IG report was sent to the two intelligence committees shortly after its completion in May 2004 for review by the committees’ leadership. None of the four leaders would ever ask to look at the tapes. None of them ever inquired about their status, even though the CIA had put them on notice more than a year earlier that the Agency intended to destroy the tapes at some point. None of them ever asked anything about
the tapes. Not, that is, until the shit hit the fan years later, courtesy of the
New York Times
.

Concurrently with the OIG review, the presidentially mandated 9/11 Commission got under way. Its charter was markedly different from the OIG review: It was conducting a comprehensive postmortem on the events, and the U.S. Government’s actions, in the years leading up to the 9/11 attacks. It was not the 9/11 Commission’s mandate to look into the measures the government took, such as the interrogation program, in response to the attacks.

The 565-page final report the commission issued in late 2004 relied heavily on the CIA-prepared accounts of Abu Zubaydah and several other key Al Qaeda figures (including the self-proclaimed 9/11 mastermind, Khalid Sheikh Mohammed [KSM]) the CIA had in its custody by 2003. The commission staff, led by a very aggressive former federal prosecutor named Dieter Snell, pressed the Agency hard for access to the detainees so they could pose their own questions to them. I could understand why; after all, our interrogators were most focused on Al Qaeda plans and actions post-9/11, not before.

Nonetheless, the Agency strongly opposed the idea, and we didn’t budge. First, the foreign location of the “black site” was a zealously guarded secret; outside the Agency, fewer than a dozen people in the entire government knew where it was (indeed, to this day it is one of the very few details about the interrogation program that remains classified). The foreign government hosts, in allowing the CIA to build its detention facility, insisted that only CIA personnel could have access to it; they themselves stayed away. Second, our psychologists and analysts studying the detainees argued against introducing any new interlocutors on the scene beyond the handful already there. They feared that diabolical but cagey manipulators like Zubaydah and KSM would seize the opportunity to posture, prevaricate, and rupture the flow of the ongoing interrogations.

Finally, the 9/11 Commission leadership grudgingly agreed to a compromise: Their staffers could submit their questions in writing and the CIA interrogators would sprinkle them into their regular sessions with the detainees as unobtrusively as possible.

For months, the commission also bombarded the Agency with a relentless volley of requests for thousands of documents, and the CIA
provided mostly all of them. We scoured all of the requests, provided in writing and in specific detail by the commission staff. They knew exactly what they wanted, and they took pains to spell it out. They never asked us if we had any videotapes of the detainees. If they had, we would have told them the truth.

Instead of parsing literally every word in each of the commission’s requests, should we have taken the initiative to tell the commission about the existence of the videotapes? In hindsight, I think the answer is clearly “Yes.”

Volunteering their existence would have prompted the commission to ask to look at them. But then we could have just said “No.” Just as we did when they wanted access to the detainees, and just as we did when the commission wanted a briefing on the EIT program. Both times the commission backed down.

The commission’s co-chairs, Lee Hamilton and Tom Kean, were serious, substantial men. They were consistently fair and trustworthy in their dealings with the Agency. We could have told them, and them alone, about the tapes and why we couldn’t give the commission access to them. We didn’t. Big mistake, as things turned out.

The third matter to come along in 2003 that argued against destroying the tapes was the criminal prosecution of Zacarias Moussaoui, a malignant but spectacularly inept Al Qaeda operative who had been arrested in Minneapolis about a month before 9/11. Moussaoui, who proved to be as unhinged as Zubaydah but nowhere near as capable, had managed to draw attention to himself by seeking lessons in Texas and Minnesota flight training schools and by loudly insisting on instructions on how to fly a 747, but not how to take off or land one. The 9/11 Commission would ultimately conclude that he had been dispatched to the United States by Al Qaeda as part of the original roster of hijackers. For two years, he had been sitting in jail awaiting trial for his role in the conspiracy, and the case was now beginning in federal district court in Alexandria, Virginia. Although Zubaydah’s interrogation did not appear to yield anything that would bear on Moussaoui’s case, there was no way of knowing which way the frequently chaotic proceedings would go. We weren’t going to do anything that might sabotage the only 9/11 criminal case the government had going.

And so, with all these investigative balls in the air, as 2003 turned to
2004, it fell to me to tell Jose and his people that any decision to destroy the tapes would have to wait.

“How much longer?” they would periodically ask, politely but persistently.

“I don’t know,” I would respond each time, “but don’t hold your breath.” I had spent my entire career hand-holding anxious CIA operatives who were upset or frustrated by one thing or another, and I thought I had gotten pretty good at the art of assuaging. Looking back at that period now, however, I clearly misjudged the depth of angst and impatience.

And it was only going to get worse in the months to follow.

By mid-2004, the OIG had completed its report, and Helgerson told me that as far as he was concerned, the fate of the tapes was now a “policy call” for senior CIA management. The 9/11 Commission had also wrapped up its investigation, and we still hadn’t seen, in their many requests for materials, anything that implicated the tapes. The Moussaoui prosecution was still careering along, however, with the defendant shouting daily epithets in court at the judge and the prosecutors when he wasn’t trying to fire his capable but besieged court-appointed lawyers.

But that was no longer the only roadblock to destroying the tapes. During that summer, George Tenet resigned as CIA director. George had known about the existence of the tapes—and Jose’s strong desire to destroy them—for about as long as I did. My sense had always been that he would have been happy to see the issue somehow go away, but that he didn’t want his fingerprints on any decision to destroy them. Jim Pavitt and Scott Muller also left the Agency about the same time. None of the departures had anything directly to do with the simmering internal controversy over the tapes: Tenet was leaving after seven grueling years as director, the second-longest tenure ever; Pavitt was retiring after a long and successful career in our clandestine service; and Muller was simply exhausted and burned out after eighteen months in a job that, post-9/11, was way more politically pressurized than he, or anyone else, for that matter, could have imagined.

Still, I couldn’t help suspecting that none of them was unhappy about not being in the chain of command when the legal impediments were gone and a decision had to be made whether or not to destroy the tapes. Tenet, Pavitt, and Muller were no longer at the CIA, but the tapes were.

About a month before he left, Scott got the White House into the act. The catalyst was the Iraq/Abu Ghraib scandal, which had exploded into the nation’s consciousness several weeks earlier with the release of repulsive photographs of U.S. military prison guards tormenting Iraqis in their custody. The photographs sparked a national outrage, and the White House was in major political damage-control mode.

Early in the Bush administration, a process was established whereby Scott Muller or I, or both of us, would travel to the White House every month to meet with the president’s counsel, Alberto Gonzales; the vice president’s counsel, David Addington; and the national security advisor’s counsel, John Bellinger. The meetings were held in Gonzales’s West Wing office, and they were intended as a way for us to discreetly alert and update the White House about CIA legal matters that weren’t already being covered in the larger interagency lawyers’ group meetings the White House was frequently convening post-9/11. When the scheduled June 2004 meeting took place, I had a scheduling conflict, so Scott took with him Bob Eatinger, our senior lawyer for counterterrorism matters.

As far as I know, no one in the White House at that time had been told about the existence of the tapes. It was not a matter of hiding them. Instead, our thinking at the CIA was that the time was not yet ripe: The tapes were being safeguarded thousands of miles away, their destruction was on indefinite hold, and there was nothing we were asking the White House to do. In short, up to that point we didn’t think the White House had a “need to know,” the classic litmus test in the intelligence business.

Abu Ghraib changed that calculation, even though that debacle had little to do with the CIA. As Scott later explained it, John Bellinger, in the context of a discussion of the Abu Ghraib photos, asked him an open-ended question in the meeting, along the lines of “the Agency doesn’t take any pictures of its detainees, does it?” I suspect he was assuming/hoping that the question was rhetorical, but Scott decided on the spot, correctly in my view, that the time had come to tell Gonzales, Addington, and Bellinger not only that the tapes existed, but also that the CIA planned to destroy them at some point. Their reaction was immediate and unanimous: “You plan to do
what
?”

The fact was that we CIA lawyers would never have taken the ultimate step to destroy the tapes without first clearing it with the White House.
Not as long as I had anything to say about it. Here, the White House lawyers weighed in sooner than they really needed to, but their reaction wasn’t exactly surprising. “Don’t do anything with those tapes without coming back to us first,” they admonished Scott.

“No problems there, fella,” I told Scott when he relayed that message back to me. Then, a few weeks later, he resigned. I was acting general counsel. Again.