Company Man: Thirty Years of Controversy and Crisis in the CIA (2 page)

The story began in March 2002, when the CIA and its Pakistani counterparts, with a combination of meticulous intelligence work and good luck, captured a senior Al Qaeda operative named Abu Zubaydah in Pakistan’s third-largest city, Faisalabad. It didn’t come off quietly—there was a furious gun battle, and Zubaydah was shot three times. The Agency rushed a team of doctors from Johns Hopkins to Pakistan to save his life. It was hardly a humanitarian gesture; our intelligence indicated that Zubaydah was Al Qaeda’s main logistics planner for attacks against the United States. The CIA was desperate to keep him alive in order to find out what he knew about any upcoming attacks. This was barely six months after 9/11, and the government was still seized with dread about another horrific strike coming any day.

Zubaydah pulled through, and as soon as the doctors determined he was well enough to travel, he was whisked from Pakistan to the first of a succession of overseas detention facilities that would eventually enter into the public lexicon as “black sites” or “secret prisons.” Zubaydah, a young, smart, cold-blooded, unrepentant psychopath, was the first really “big fish” the Agency had caught post-9/11. Soon after the questioning began, CIA inquisitors became convinced, based on his smug and arrogant responses, that he knew a lot more than he was telling about Al Qaeda’s terrorist plans. By early April 2002, the Agency, lacking other options
and desperate to stop another cataclysmic attack, made the fateful decision to explore tougher methods to try to get Zubaydah to talk. This was how the “enhanced interrogation program” came to be, along with yet another word soon to enter the public lexicon:
waterboarding
.

Later in the book I will provide an eyewitness narrative of the period from April through July 2002, when the Agency conceived the EIT program, which I shepherded through policy review at the White House and legal review at the Justice Department. This process culminated on August 1, when the Justice Department issued to me the first of what would come to be known infamously as the “torture memos,” which legally approved waterboarding and other brutal interrogation tactics against Zubaydah. After I received the Justice memo, the waterboarding of Zubaydah began, with my knowledge and concurrence.

What I didn’t know then and wouldn’t know until two months later was the decision—I could never determine whether someone at CIA Headquarters or in the field with Zubaydah came up with the idea—to videotape Zubaydah around the clock while he was in custody, including periods of interrogation. When he first told me about the videotaping in October 2002, Jose offered two reasons. First, our people at the interrogation site wanted to make sure everything Zubaydah said was recorded and preserved. They were taking careful and copious contemporaneous notes, which were duly transcribed in cables sent back to CIA Headquarters every day, but they were terrified they might miss something. It’s important to note here that, prior to 9/11, the CIA had never in my quarter-century experience held and questioned anyone incommunicado. In a popular culture steeped with films, TV shows, and potboiler spy novels portraying the CIA as a no-holds-barred instrument of mayhem, this may be hard for an outsider to believe. But it’s true. The videotaping was seen not just as a reference tool but as a security blanket.

The other reason Jose gave me for the decision to videotape Zubaydah was more basic: His people didn’t want the SOB to die on them. CIA medical personnel at the detention facility monitored Zubaydah round the clock, but he was about to face some very tough interrogation in the most solitary of confinements. If Zubaydah were to die in captivity, who would believe—either inside or outside the CIA—that they weren’t to blame? Videotaping Zubaydah in captivity would cover their asses.

After several days of taping, however, everyone who had bought into
the idea looked at the videotapes, compared them with the notes transcribed and forwarded to headquarters, and concluded that the notes captured everything Zubaydah was saying. In fact, the notes were better; Zubaydah’s voice was occasionally inaudible on the recordings, but the interrogators had been able to get down most everything he was saying. Besides that, Zubaydah had recovered from his wounds and was exhibiting no desire to journey to the afterlife—even with the seventy-two virgins presumably awaiting his arrival—anytime soon. The hundred or so hours of videotapes were packed up and stored at the detention facility.

But Jose’s sudden desire that October to destroy the tapes was not spurred by an urgent need to eliminate unnecessary clutter. It was based on what the tapes showed.

The round-the-clock videotaping had lasted only a few days in August 2002 before it was stopped, and the bulk of it recorded Zubaydah alone in his cell, either saying prayers, sleeping, reading, or otherwise—um—entertaining himself. The rest of the tapes showed the interrogation sessions, and Jose assured me that the scenes of Zubaydah being waterboarded, comprising only a small portion of the tapes, were uncensored, and everything had followed the guidelines formulated by CIA Headquarters and approved by the Justice Department in its August 1 top-secret memorandum to me (the so-called torture memo). That was his good news. His bad news was that the scenes were “tough to watch” and, more to the point, clearly showed the faces of the CIA employees and contractors on the scene.

Jose was convinced that someday, somewhere, somehow, the tapes would become public and the identities of the interrogators inevitably “outed.” “
Sixty Minutes
will do slow-mo, stop-action pictures of their faces,” Jose emotionally put it to me, “and they and their families will become targets for some Al Qaeda crazy wherever they are.”

I had known Jose for over a decade, and I had no reason to doubt his sincerity or his word. A short, dark man in his late forties whose voice carried the lilt of his upbringing in Puerto Rico, Jose (who had a law degree) could be fiery and over the top rhetorically at times, but I always found him to be honest, straightforward, and utterly without guile—traits I suspect the public would not normally ascribe to a longtime CIA operative. He was an honorable, decent guy, and I considered him a friend. I still do.

I also didn’t think at the time that Jose and his colleagues were being paranoid in fearing that the tapes would someday be made public. If all my years and experience at the CIA taught me anything, it’s that virtually every secret doesn’t stay secret forever, and that the shelf life of new secrets is getting shorter all the time. As I write this today, consider all that happened in the eight years since I first learned about the tapes: the steady stream of media leaks about “secret prisons” and “waterboarding”; the ensuing drumbeat of outrage from elements of Congress, pundits, and the academic community as the shock and horror of 9/11 receded into history; and finally, a new president and his attorney general who publicly repudiated and voluntarily declassified virtually every detail of the CIA’s interrogation program. If those tapes were still in existence, what do you suppose are the chances they would now be in the public domain? Somewhere between probably and slam-dunk.

But that is now, and this was then. Although I sympathized with Jose’s motivations, I thought destroying the tapes was fraught with enormous risk for the Agency. Any minimally competent attorney would instinctively react the same way if his client were to come to him seeking the go-ahead to destroy sensitive materials in his possession, even if the client was not under any cloud of suspicion or investigation. Someone does something like that when he has something to hide.

And the tapes, obviously, were not ordinary material. Given who Zubaydah was, and given why it was considered so critical to get him to talk, a Congress and a nation still shell-shocked by 9/11 might have understood and even supported such tactics. Indeed, only a month earlier, in September 2002, the bipartisan leadership of Congress (the so-called Gang of 8) had been briefed by the CIA on the newly approved techniques, including waterboarding, and expressed no concern whatsoever. But to have this disturbing stuff captured on videotape, and then to destroy it without telling anyone . . . I mean, Jesus. I trusted Jose and believed his assurances that everything on the tapes was within the approved guidelines, but once they were gone, and once someone on the outside inevitably found out about the tapes and what had happened to them, who was going to accept those assurances at face value?

So that was the big turd dumped on my desk shortly before the arrival of the new general counsel. “Who else in senior management knows about the tapes and what you want to do with them?” I asked Jose. “What
about Pavitt?,” referring to his superior, Jim Pavitt, the head of CIA covert operations.

“Pavitt knows, and he’s ready to authorize the destruction, but he said I needed to get your okay,” Jose responded.

“Where is George Tenet on this?” I then asked as calmly as I could, referring to the CIA director.

“I don’t know. I haven’t spoken to him about it.”

I informed Jose that he was not to do anything with those tapes. Not then, and not until further notice. I needed to talk about this with the new general counsel.

Poor Scott Muller, I thought. Here he was coming in from private life, with a totally blank slate, and now I had to firehose him not only on a counterterrorist program of an unprecedented scope and nature, but also, by the way, on an urgent request to destroy hair-raising evidence about the program. I was hoping he wouldn’t quickly conclude he was joining an organization, and inheriting a deputy, who were completely crazy.

Thankfully, Scott proved to be a quick study and not easily rattled. He agreed that precipitously destroying the tapes was a terrible idea. At the same time, after hearing out Jose and Jim Pavitt, he came to the same conclusion I had: These were honorable men whose deep concerns about the security risks the tapes posed to the interrogators were genuine. Absent some legal requirement that the tapes had to be preserved forever, Scott and I were not prepared to simply rule out ever destroying them. As we put it to Director Tenet in late December 2002 (Scott insisted that we deliver the message together), “the question is not whether to destroy the tapes, but when.”

First, we decided, a CIA lawyer had to review every minute of the tapes, but it had to be someone with no connection to the interrogation program who could look at them with no preconceived notions or stake about what was on them. We settled on John McPherson, one of our most experienced lawyers, and the chief of the CIA’s Litigation Division. He was someone I knew to be disciplined, thorough, and unflappable. John had had no prior role, or even any knowledge of, the interrogation program, but we thought it made sense to bring him into the loop, given the certainty that the program would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come.

In the days after Christmas 2002, John traveled to the country where Zubaydah had been held and where the sole set of tapes in existence was under zealous guard in the local CIA office. By this time, Zubaydah had been moved to a new detention facility in another part of the world. But the last thing we needed was to have the damn things get somehow lost or damaged in transit.

John methodically plowed through the roughly hundred hours of videotape, each tape recording a day’s work of interrogation. Ninety-six of the videotapes were recordings of the Zubaydah sessions. (There were also recordings of the interrogation of Abd al-Rahim al-Nashiri, a key perpetrator of the October 2000 bombing of the USS
Cole
. He was captured in October 2002 and taped only briefly before the CTC halted all videotaping.) Much of the ninety-six tapes depicted Zubaydah simply being questioned or sitting alone in his cell, so John skimmed those parts. But he painstakingly watched the segments where EITs were being applied. He compared everything that the interrogators said and did, and everything Zubaydah said and did, with the daily reports the interrogators sent back to CIA Headquarters. He particularly focused on the waterboarding sessions.

After three days, John was done. His conclusions, contained in a written report, boiled down to this: The reports were accurate and complete, and the interrogators had done nothing to Zubaydah that was outside the guidelines or not described in the reports. But when he returned home I made sure to ask him about two things he hadn’t covered in his written findings. Were the faces of the interrogators visible? “Clear as day, and over and over again,” he replied in his usual just-the-facts way. And what about Zubaydah, when he was being waterboarded? “Up close and personal. Some crying. Some gagging. Just very unpleasant to look at.”