Playing to the Edge: American Intelligence in the Age of Terror (41 page)

The White House issued a short, pro forma statement of regret at Phil’s decision. I wrote an op-ed about the self-destructive absurdity of it all and quietly hoped that the purge would soon run its course.

Leon Panetta’s nomination raised some eyebrows. Senior Democrats on the Senate Intelligence Committee were angry they weren’t consulted on the choice by the new president’s team and a little nervous about Leon’s lack of intelligence experience. Senator Feinstein had quietly been sounding out my deputy, Steve Kappes, about his interest in the position. That being said, Leon’s confirmation was never in doubt.

I had my first meeting with him in downtown Washington at the transition team’s headquarters. I went into the session with Steve Kappes, and had the key members of the CIA leadership team in the next room ready to brief. The game plan was simple. I would brief the nominee with Steve for about fifteen minutes and then depart to allow Panetta to talk to Steve about staying on as his deputy. After that session, the leadership
team would enter, introduce themselves to the incoming director, and hit the high points of their work.

I built a short list of points to make in my quarter of an hour and jotted them down on the back of a single note card. After congratulating him on his nomination, I told Panetta that he would be, once confirmed, America’s combatant commander in the war on terrorism. He would be making the kinds of operational decisions that are usually associated with combatant commanders, and he would be making these decisions at all hours of the day and night. I also told him that he was inheriting a great leadership team.

I then leaned forward and, implicitly referring to some of his comments while out of government, advised that he should never again use the words “torture” and “CIA” in the same paragraph. Torture was a legal term, I said. It has specific meaning. It was a felony. Associating it with the agency was inaccurate and would set in motion things that would be difficult, if not impossible, to control. There were lots of words available if he wanted to condemn any policy or practice of the past, but this shouldn’t be one of them. It was the only time during a warm and friendly exchange that I could not read his reaction.

Weeks later, during his confirmation hearing in front of the Senate Intelligence Committee, Panetta was asked directly by Senator Carl Levin whether or not he agreed with the president and the attorney general that waterboarding—a practice I had previously confirmed the agency had used on three people—was torture. He quickly responded that it was: “I have expressed the opinion that waterboarding is torture and that it is wrong.”

The nominee was under considerable political pressure to say what he had just said. The president had taken that position in his campaign, as had the Democratic leadership in Congress. And it was inevitable that any nominee for attorney general in the Obama administration was also going to take that reflexive position in his confirmation hearing, as Eric Holder did (without, of course, knowing the details of CIA’s waterboarding technique and how important the technique had been in securing
valuable intelligence from terrorist detainees). Likewise for the CIA nominee. It was disappointing nonetheless.

Judge Michael Mukasey had faced the same line of questioning during his confirmation hearing for attorney general in 2007. Democratic senators were angry with Mukasey for refusing to answer, but he was just reflecting the reality that the legal question depended on the details and could not be decided in the abstract. This was especially true, since Congress had rejected Senator Kennedy’s amendment to explicitly outlaw waterboarding in the Military Commissions Act of 2006.

So Panetta’s answer, like Holder’s before him, was more political than legal but would nonetheless discomfit agency officers. The incoming director had just said that the workforce he was about to inherit had participated in what he viewed to be a felony.

Earlier, DNI-designate Blair (after a phone conversation with me similar to the one I had had with Panetta) had declined to answer the same question, and told the same senators that it would be awkward for him to head a workforce if he had accused them of doing something illegal.

To his credit, Panetta—on at least four occasions during his hearing—emphasized that CIA officers operating under then-existing legal opinions should not be prosecuted.

Near the end of the day, Senator Wyden asked Panetta whether he believed the United States had “rendered” people to third countries
for the purposes of torture
. Panetta said that he believed that we had: “I suspect that that has been the case . . . that we have rendered individuals to other countries, knowing they would use certain techniques.” After admitting that he had limited knowledge on the subject, he concluded by saying, “Every indication seems to be that we used this extraordinary rendition for that purpose.”

Like a lot of the CIA workforce, I was watching the testimony on C-SPAN. Rendered “for the purposes of torture”—not that we were deficient in how we got assurances about treatment or that a partner had betrayed our confidence—no,
for the purposes of torture
!

I immediately picked up the secure phone and called the head of the
Counterterrorism Center, an experienced field operator, a student of Islam, as candid as he was terse. “Are you watching this?” I said.

“Oh, yes.”

“And how’s it going?”

“Not well.”

“Have we ever rendered anyone to a third country for the purposes of torture?”

“Never.”

“Not just on your watch. Ever?”

“Never.”

“And you use all the tools available to us to ensure that a partner lives up to his commitment?”

“Always.”

“Thanks. Just wanted to be sure one more time before I did anything.”

The Senate had a lot of votes that day, and the hearing did not begin until midafternoon. Chairman Feinstein had to adjourn the session and agreed to reconvene in the morning. That gave us a chance to try to correct testimony that was as damaging as it was wrong.

We lit up the phones to the transition team’s handlers around the nominee. The conversation was simple. Walk back the “renditions for the purposes of torture” testimony the next morning or the current director of CIA would issue a public statement that the incoming director had been misinformed.

The transition team felt that the day had gone well, so I’m sure that our fuming wasn’t particularly welcome. But several team members did recognize that the “renditions for the purposes of torture” language was at least ill-advised, and they didn’t want a public spat to mar the day’s achievements.

The next morning, in the “extra time” session dictated by the Senate’s heavy schedule the day before, the incoming director did not take up Chairman Feinstein’s offer to add to or clarify any statements from the day before. But later, in response to some sharp questioning by Senator Bond, he did admit that renditions for the purposes of torture “was not
the policy of the United States” and that he wanted to “retract that statement” from the day before. That pragmatic stance effectively defused the situation.

Leon was a quick study. The more he was briefed up by the agency, the more he discarded views he had formed from popular accounts while he was out of government. He became a staunch agency defender with both the White House and the Hill. He was a better defender than I would have been with the Hill, given that he was a member of the governing party and had personal experience and acquaintances in the institution.

He also had a politician’s gift for human relationships. It wasn’t lost on me. In the midst of all this he left a voice mail on my home phone wishing my Steelers the best in the upcoming Super Bowl.

The meeting that the president-elect promised me with Greg Craig was a month in coming, but on January 9, Craig, former Oklahoma senator (and mentor to George Tenet) David Boren, and other members of the transition team gave us a full morning at Langley to explain our position on detentions and interrogations.

We met in the director’s conference room on the seventh floor, transition team on one side of the table, the agency’s counterterrorism staff and myself on the other, with agency subject matter experts in the chairs behind us.

I spent a lot of time preparing for this, but before I began, I told Greg that if this was just theater, we would happily give him and his team their morning back. He assured me that it was not.

“Good. Well then, our objective here is to make you understand what we really are doing and have done, as opposed to the urban legends out there on which people are making judgments and making speeches.” We weren’t there to defend
torture
. We were there to defend
this
program.

I laid out some of the language that critical senators had used and then wondered aloud why, if they were so certain of their position, they would think they had to mischaracterize what we had done.

Then I continued, “And as far as making changes to this program, we
believe that what you think you have to do, we actually took care of in 2006.”

I knew that one of the administration’s key motivators was to “get us right” with our allies, so I pointed out that about 90 percent of our reporting from detainees had been shared with many of them, that we had directed hundreds of questions at detainees based on liaison queries, and that we had also shared hundreds of finished intelligence products that included detainee information.

I also pointed out that for all the huffing and puffing, Congress had had the opportunity in 2006 to stop the program, and it had not.
*

I emphasized how many times CIA had gone to the Justice Department in the history of the program and how Justice had been supportive, not just in the infamous and overreaching “Bybee memo” at the beginning of the program but in later, more limited opinions.

I had a lot of details. There were twenty-two pages of text and briefing notes in front of me on numbers and techniques and reports and intelligence. But the core argument was straightforward: “Be careful. Don’t arbitrarily give up something you might need someday.”

Senator Boren later told the
Washington Post
that he felt like he needed a shower after the briefing. He didn’t tell the paper that at one point in the discussion—in response to our “don’t take it off the table” reasoning—he told us that in some future
in extremis
circumstance the president could order us to do something and that we would do it based on the president’s authorization alone.

“Wow,” I responded, “I haven’t heard even David Addington and his unitary executive theory come up with that one. I know that you only have to worry about this for the next couple of weeks, but forget it. I won’t support it.”

At this point, the head of the Counterterrorism Center sitting to my right added, “And I won’t order it.”

And in the uncomfortable silence that followed, a voice from the back row spoke out: “And it doesn’t matter what those two guys might say, we’re not doing it.”

Finally, a member of my personal staff, showing some real anger, said that he thought this theory had been shot down in the 1970s.

Talk about feeling the need for a shower.

The meeting actually
was
theater, of course. The Justice Department transition team was already beavering away on an executive order closing the CIA black sites and limiting any American interrogation to the techniques listed in the Army Field Manual. In front of a phalanx of retired flag officers, the president signed the executive order along with one committing to the closure of Guantánamo two days after the inauguration.

That morning, prior to the president signing the executive order, I made one last try with Craig, even though we had not officially been provided with a coordination draft of the EO.

“Greg,” I began, “not that you asked, but this is CIA officially non-concurring.”

“We figured that, Mike.”

“And Greg, you could buy back most of what we need if you would just add ‘unless otherwise authorized by the president’ to the paragraph limiting us to the Army Field Manual. We need ambiguity and doubt in the mind of the detainee more than we need
any
particular technique.”

Greg said he would “take it under advisement.”

Later that day the EO was published, without my amendment. However we might have disagreed over details, the president had given the agency what it needed and what he owed its officers: clear guidance. I hit the send button on a message to the workforce that we had ready to go.

The legal and policy landscape under which the Agency has conducted itself in the global war on terror has changed in the past and we have
consistently and scrupulously adjusted our efforts to reflect these changes. This Executive Order is no different. We will review the order carefully and issue appropriate guidance to ensure that we continue to act in consonance with the law and with policy direction. . . . [Y]ou, the men and women of CIA, will make the best possible use of the space the Republic has given us. . . . I have every confidence in your enduring ability to do so, honoring, as always, the laws and values of the democracy we faithfully serve.

I couldn’t resist one additional comment.

When our government changes its law or policy, we will follow that direction without exception, carve out, or loophole.

Outside the government, that was probably read as a further warning to the workforce not to test the new limits. But we knew better. That sentence was for the new administration. You wanted it. Now you are going to have to live with it. No back doors here. Don’t even bother calling.

Someone asked me if we would now train CIA officers in the authorized techniques of the Army Field Manual. I replied that if they needed people trained on the Army Field Manual, I could point them down the Potomac to the headquarters of an organization where literally thousands were so trained. CIA would still provide subject matter experts, but we had detained and interrogated because we had had special authorities. Now we didn’t. We were out of that business.