Company Man: Thirty Years of Controversy and Crisis in the CIA (53 page)

As for the 2003 death in Iraq, not only was the detainee not part of the EIT program, he wasn’t even in CIA custody. Instead, he was captured and held by the U.S. military in its own facility, the soon-to-be-infamous Abu Ghraib prison. The military gave CIA officers access to question the prisoner, after which things evidently got out of control. There was no question that he was physically abused and that he died as a result. Not as clear was who—CIA or military—delivered the fatal blows, but in the ensuing CIA IG investigation, the Agency guys obfuscated and perhaps did things to obstruct the investigation. Again, the CIA disciplined the officers involved and referred the matter to Justice in early 2004 to sort out their potential criminal liability. An ugly case all around, made even more painful by the fact that it is the only link—attenuated as it is—to the separate and widespread abuse of prisoners by U.S. military guards that would give the name Abu Ghraib its permanent stain in the public consciousness.

The announcement came as a relief, of course, finally closing the book on a couple of the most sordid chapters in the CIA’s performance in the post-9/11 era. But why did it take Justice so long to decide not to prosecute? The answer to that question is the reason I—and I believe many of my colleagues still at the Agency—were frustrated by the denouement. In 2006, a group of seasoned career prosecutors at Justice—not some Bush administration lackeys—decided, after an exhaustive investigation
of the two cases along with dozens of other incidents of possible detainee abuse, that the available evidence didn’t support proceeding with any prosecutions. At the time, all of us at the CIA thought, absent some new evidence in these old cases somehow surfacing, that that settled things.

It was not an unreasonable assumption—when the DOJ announces it is closing an investigation, it almost always stays closed. Especially when it comes to criminal cases in the national security arena, everybody involved is entitled to have a final decision to rely upon. In my experience, any criminal investigation into CIA activities or personnel turns the Agency topsy-turvy—CIA personnel and resources have to be diverted to support the Justice investigation, and dozens of Agency employees (not just the alleged miscreants) are subjected to intensive questioning, with all the attendant uncertainty and anxiety. So finality is critical: the DOJ ultimately gives the Agency a firm and definitive answer in any given case—prosecution or no prosecution—and we deal with it. So the life, and the mission, of the intelligence community can move on. That’s always been the pact between the Agency and the Justice Department, no matter what attorney general, Republican or Democrat, has been in charge. Until, that is, the arrival of Eric Holder.

In August 2009, still in his first few months in office, Holder blindsided everyone at the Agency—especially me—by publicly announcing that Justice was going to reopen all of the old detainee abuse cases. Just like that, with no explanation about what was so flawed, or what was missing, in the career prosecutors’ decision only three years earlier not to prosecute. New or overlooked evidence? New or overlooked witnesses? Evidently not, according to the Holder aides I talked to. In fact, one of them privately told me, Holder hadn’t bothered to read the career prosecutors’ reports on why they had recommended against prosecution. I was at a loss to understand why Holder was taking such an extraordinary step, reopening cases that had only gotten older, staler, in the ensuing years. It made absolutely no sense. It was also, I thought, a profoundly unfair thing to do to the Agency’s drained and beleaguered workforce. Only a few months earlier, when President Obama took the extraordinary step of declassifying the Bush-era “torture memos,” he nonetheless pledged that his new administration henceforth would “look forward, not backward” and not rehash all the controversies of the past. Holder’s out-of-the-blue decision gave the lie to that.

By this time, I was nearly out the door at the Agency, but what I was subsequently told by my erstwhile colleagues was all too depressingly predictable. Once again, dozens of rank-and-file employees faced grillings by gimlet-eyed prosecutors and FBI agents on what they might have said or done in the course of events that took place years before. Bewildered employees who had only been on the periphery of these long-ago events felt compelled to hire private lawyers. Untold amounts of CIA funds and manpower—not to mention focus and morale—were chewed up in the process. In 2011, Holder announced that Justice was dropping its inquiry into all the cases save for two, for which there now would be full-blown investigations. Yet more Agency resources had to be called upon, more Agency personnel diverted and disrupted from their regular duties.

Finally, mercifully, the end came with the curt written statement released in Holder’s name on August 30, 2012, throwing in the towel. While it didn’t offer much in the way of explanation, the statement did cryptically allude to problems with “statute of limitations and jurisdictional provisions.” Sitting at home, reading those words, I could only ruefully smile. They sounded almost exactly like the legalistic code words the career Justice Department prosecutors had given me, in 2006, for deciding not to pursue prosecution of the very same cases. Basically, it is Justice saying: Look, these were incidents that took place a long time ago, in isolated, war-torn locales, where we have no body to examine and no reliable evidence or available eyewitnesses. Evidently, it took Holder and his staff until 2012 to reach the same conclusion their predecessors had come to six long years earlier. The only things that had changed were that the cases had gotten even older, and that probably millions of additional taxpayer dollars had been blown on a corrosive and feckless exercise.

I was struck by one other brief phrase in the Holder statement. It said the decision not to prosecute “was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.” The conduct Holder was referring to was that of the Agency, not his own.

In January 1976, I arrived at the CIA as a naïve, unworldly twenty-eight-year-old guy. I came aboard based solely on a hunch and a huge leap of faith. In the ensuing thirty-four years, I met people, traveled to places, and dealt with issues that were at once wonderfully unimaginable and endlessly fascinating. I managed to climb farther up the ladder than any career CIA lawyer had ascended before. And I wound up becoming an unlikely and controversial public figure in the late stages of my career, which spanned the entire modern history of the Agency. So it’s a fair question to ask: What conclusions have I drawn, what lessons did I learn, from all that time, all those experiences, at the CIA?

First, let me address the momentous, fateful years since the attacks of September 11, 2001. To me, the most ironic lesson to be drawn by the post-9/11 era is this: It is far less legally risky, and in many quarters considered far more morally justifiable, to stalk and kill a dangerous terrorist than it is to capture and aggressively interrogate one. That at least is the de facto consensus that emerged over the first post-9/11 decade among influential segments of the U.S. Congress, the media, and the human rights community. How else to explain all the noisy outrage and long, splashy investigative articles about CIA secret prisons and interrogation techniques, while all the while Al Qaeda operatives were getting blown to bits, in plain sight, by U.S. drone aircraft without generating a ripple of criticism anywhere in Congress, the media, or from any international human rights organization? To these entities, killing didn’t appear to be that big a deal, up through the time I retired at the end of 2009.

By contrast, for many of us at the CIA, being directed by the president
of the United States to target people for death—even Al Qaeda terrorists—was always a big deal. Late in his administration, Bill Clinton had issued some ambiguously worded and highly caveated MONs to the Agency about killing bin Laden and any of his cohorts who might be unlucky enough to be around him at the time. With bin Laden nowhere to be found, the Agency never came close to putting him in its crosshairs. That moment would not come until the night of May 2, 2011, in that walled compound in Abbottabad, Pakistan.

I still find it so odd, so perverse, that the same groups that were stridently attacking the EIT program as not just lawless but morally repugnant—the (mostly) Democrats in Congress, the ACLU, Amnesty International, even the United Nations—until recently couldn’t seem to muster a scintilla of concern, much less outrage, about a U.S. program of summary, targeted killings—even ones that occasionally caused the deaths of innocent bystanders—that was being simultaneously conducted with results that all the world could see.

From the earliest days after 9/11, the Agency’s priority was to capture Al Qaeda leaders, not kill them. Except when it came to bin Laden, whenever the location of an important Al Qaeda operative came on the screen, the preferred option was to try to take him into custody if at all possible. In March 2002, when Abu Zubaydah was located in a house in Faisalabad, the Agency ordered its Pakistani colleagues to take him alive. Zubaydah, however, declined to go quietly and was seriously wounded in the ensuing gunfight. Rather than let him die, the CIA moved heaven and earth to get him the medical care that saved his life. Subsequently, he was subjected to extensive waterboarding, as was Khalid Sheik Mohammad a year later. Both men, of course, would go on to become the two most prominent and productive subjects of the Agency’s enhanced interrogation program.

That the CIA so instinctively and insistently hewed to this approach shouldn’t be surprising. First and foremost, it is an intelligence-collection organization, and collection of intelligence from human beings is in its institutional DNA. Always has been. You can’t collect intelligence—whether about an upcoming catastrophic attack on the homeland or anything else—from a dead man. It’s as simple as that. Accordingly, during my time in the post-9/11 years, killing terrorists was the final option. And certainly not the only option.

Now, flash forward to today. Times have changed indeed. As this is written,
bin Laden has been dead and buried for two years; the EIT program has been dead and buried for four years, as have the CIA secret prisons. Thus, by all appearances, the Agency is out of the detention and interrogation business. So what continues to be the fulcrum of the Obama administration’s offensive against Al Qaeda? According to a nonstop stream of media accounts over the past four years (which is all I have to go on by now), it’s killing people, a lot of people, via a relentless and escalating barrage of drone attacks. Apparently even a U.S. citizen or two along the way. I don’t doubt that virtually all of them were bad guys who richly deserved their fate. Yet it also seems evident that the U.S. Government’s efforts to capture and interrogate Al Qaeda operatives overseas have effectively ground to a halt. Again, according to media reports, the Obama administration’s scorecard in this regard at this writing: one terrorist detained.

So the question ultimately becomes: Was the Obama administration’s enthusiastic embrace of a robust, aggressive policy to kill terrorists directly connected to, even compelled by, its decision to repudiate a robust, aggressive policy of capturing and interrogating them? Obama aides (notably, my old friend and colleague John Brennan) have adamantly denied it. With due respect to John, I don’t believe you need to be a sage CIA analyst to connect the dots on this one.

Which leads to the question of what the CIA’s assigned antiterrorism role will be in the future. I can’t imagine the Agency ever again coming close to running detention facilities or engaging in any sort of even mildly coercive interrogation practices. Given the seemingly enduring controversy over the legacy of “waterboarding” and “black sites”—the widespread popularity and vitriol generated by the 2012 film
Zero Dark Thirty
is but one example of this phenomenon—I can’t see any president ever reopening that can of worms again. What’s more, no CIA director in his or her right mind would ever let the organization go down that path again. To do so would be beyond folly. I don’t think even another catastrophic 9/11-like attack will change that.

Aggressive all-out intelligence collection against terrorists and terrorist threats? Absolutely. Intelligence collection, as I noted earlier, has always been the lifeblood of the Agency. There has always been a consensus that it is not only an appropriate but a vital CIA mission. Plus, there has seldom been any political risk or downside to spying, save for those relatively few cases where the CIA has been caught red-handed bugging some
foreign government installation or trying to recruit a foreign government official. In any case, the worst fall-out result is a compromised operation, the attendant political embarrassment, and maybe some snarky media stories. It is a rare case indeed for someone to get killed carrying out, or being the target of, a CIA intelligence-collection operation.

Which brings me to what the future holds for the CIA to conduct covert actions aimed at terrorists. It has been only in the last year or so that segments of Congress, the media, and the human rights community have begun criticizing the U.S. Government’s lethal drone operations, a practice that dates back more than a decade. This delayed reaction is attributable to two factors, I believe. First, the Obama administration has upped the ante, dramatically expanding the numbers of drone strikes, the permissible targets, and the number of foreign locations in the bull’s-eye. The second factor, which admittedly reflects a certain cynicism on my part, is that there is no longer any EIT program for the critics to kick around. Human rights and civil liberties groups, notably the ACLU, have needed a new national security bogeyman to attack, so belatedly, after being studiously quiet about it for years, the drone program is now on their (ahem) target list.

Whatever. I believe that the drone program is here to stay, not just under Obama but whoever his successors may be. In the counterterrorist arena, for sure, but someday soon drone attacks are likely to be aimed at hostile foreign governments deemed to pose an imminent threat to unleash weapons of mass destruction against the West, our allies, or even their own people. The technology has gotten so good and is bound to get better. Drone attacks are antiseptic, stealthy, and—after the recent long-running adventures in Afghanistan and Iraq—a far more preferable option for any presidential administration than “boots on the ground” and flag-draped coffins arriving at Dover Air Force Base. When those drone strikes happen, count on whatever administration that carries them out to trot out its lawyers to duly rationalize its lethal actions as being totally in accordance with international law.