Company Man: Thirty Years of Controversy and Crisis in the CIA (35 page)

I did take the opportunity to raise a new issue at this second meeting.
I asked whether, in addition to an OLC memorandum legally authorizing the EITs, the Justice Department would be prepared to issue an advance declination of prosecution for any CIA employee involved in the EIT program whose participation was in good faith and within the terms and conditions of the memorandum. It was my idea alone, and I floated it because of my determination to secure the maximum possible legal protection for our people. At the time, I thought that the need for additional legal cover beyond the OLC memo was unlikely; little did I anticipate that less than two years later, John Yoo’s successors at the OLC would start moonwalking furiously away from a number of Yoo-authored national security legal opinions.

Anyway, when I floated that trial balloon at the meeting, the DOJ Criminal Division chief, Mike Chertoff, shot it down before it got off the ground. “Out of the question,” he said flatly. “The Justice Department doesn’t decline criminal prosecutions in advance. Period.” And that was that, as far as I was concerned. I felt a little grubby about putting Mike, who was and is a good friend to me and the Agency, on the spot like that. A few minutes later, he announced that he had to leave; it was a Saturday afternoon, and Mike said he had tickets to a Sheryl Crow outdoor concert. I am certain that was true. Still, I speculated to myself at the time that Mike would have happily accepted tickets to a Tiny Tim ukulele concert if that’s what it took to get the hell out of there.

By the end of the meeting, I knew that the OLC was going to write a memorandum giving a bright green light to the EITs. John Yoo, in his low-key way, sounded utterly convinced in the strength of his conclusions—no equivocation, no obfuscation, no loopholes. That was exactly what I thought the Agency needed in order to proceed. I spent the last two weeks in July fielding John’s final few questions as he completed work on his memo. First, he called me about one proposed EIT. “How important is that to the program?” he asked politely. “If you absolutely need to have it, the memo will take a while longer to finish because I’m not sure we can get there on that one.” I was quietly relieved—this was the EIT that I thought was the most chilling, even more than the waterboarding. I consulted with CTC management, and since getting a definitive OLC memorandum as soon as possible was the first priority, CTC management agreed not to hold things up just to try to get OLC blessing for that one.

A day or two later, John Yoo had another question. The memo he was drafting, he said, would be signed by his boss, Jay Bybee, the head of the OLC. John wanted to know whom I wanted as the CIA addressee. Honestly, I hadn’t given it any thought before then. Historically, OLC memoranda to the Agency were addressed either to the director or the general counsel. Given those alternatives, it took me only a couple of seconds to decide. I didn’t think it was necessary, and certainly not desirable, for George Tenet’s name to be on a document that was going to have hairy stuff like EITs in it. That’s what his lawyer was for. “Address it to me,” I told John.

On August 1, 2002, the eighteen-page OLC memo arrived. It was stamped TOP SECRET, and it was circulated only to a handful of people outside the DOJ and the CIA. Save for the one abandoned option, the OLC concluded that none of the EITs that the CTC originally proposed violated the torture statute. The memo painstakingly laid out the specifics of each EIT and gave each of them explicit legal approval, taking care to lay out all terms and procedures we told the OLC the Agency would follow in administering them. As agreed, on top of the first page, in bold print, it read: “Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency.”

The Agency quickly converted the OLC memo into a detailed “guidance” cable to the black site where Zubaydah was being held, and the EITs started, with the least coercive going first. The site soon reported back that Zubaydah was still being resistant; accordingly, pursuant to the protocols that had been set up, headquarters approved use of waterboarding. Over a period of several days, the technique was applied eighty-three times (meaning each occasion where water was poured onto the cloth covering his face—not, as some critics would later charge, the number of times Zubaydah was actually strapped up for a session). Just days after the EITs began, they ended. They ended as soon as Zubaydah’s resistance ended—he had reached the stage of what our outside consultants called “learned helplessness.” He began to talk. A lot. The site reported that Zubaydah was becoming downright loquacious, in fact.

Among other revelations, Zubaydah provided information that soon led to the capture of two other Al Qaeda “big fish.” One was Ramzi bin al-Shibh, a member of Al Qaeda’s “Hamburg cell” and a close associate of several of the 9/11 hijackers, including their leader, Mohamed Atta. The
other was Abd al-Rahim al-Nashiri, a key figure in the October 2000 Al Qaeda bombing of the navy warship USS
Cole
in the Gulf of Aden, which killed seventeen U.S. sailors. Bin al-Shibh and al-Nashiri were hardened, cold-blooded lieutenants in the Al Qaeda chain of command, the type of tough nuts not only eager to kill more Americans but also potentially knowledgeable about ongoing plots to do so.

Since the OLC memo we had gotten a couple of months before was specifically addressed to the EITs being applied only to Zubaydah, I quickly got confirmation from the DOJ that the conclusions reached by the OLC on its August 1 memo pertaining to Zubaydah would also cover similarly high-value—and resistant—Al Qaeda prisoners. And so the EITs began with al-Nashiri and bin al-Shibh. But it’s important to note here that the EITs were never intended to be applied in a cookie-cutter, “one size fits all” way. For example, Agency psychologists and interrogators at the site assessed that the ultimate EIT—waterboarding—was necessary for al-Nashiri, but not for bin al-Shibh. And even with al-Nashiri, the waterboarding was stopped almost as soon as it started—for all his thug bravado, al-Nashiri’s resistance to cooperation ended after only a few doses, in marked contrast to the more academically inclined psychopath Zubaydah. (By the way, the “bug in the box” EIT was never actually employed on any of the CIA detainees.)

A few months later, in March 2003, the biggest Al Qaeda fish of all—with the exception of bin Laden himself or his second in command, Ayman al-Zawahiri—was caught in the CIA’s net. It was Khalid Sheikh Mohammed (KSM), the undisputed (least of all by him) mastermind of the 9/11 attacks and proud personal butcher of the
Wall Street Journal
reporter Daniel Pearl. It had been less than a year since anyone in the intelligence community even knew he existed. Certainly, no other Al Qaeda detainee, before or since, came close to him in terms of cunning and cold-blooded evil. In the years since, I have sometimes wondered what would have happened if KSM, rather than Zubaydah, had been the CIA’s first high-value prisoner. My guess is that the now-infamous EITs the Agency originally conceived would have been even more brutal and relentless.

As it happened, however, the CIA made do with what it already had in its kit bag. They were used on KSM, all doughy five feet three of him, again and again for weeks. Each night back at headquarters, I would hear
the reports and cringe to myself—there was waterboarding and then more waterboarding. A CIA IG report would later put the number of times at 183, and while there would be heated debate in the succeeding years over how that number was arrived at, I knew that no matter how you cut it, this guy was withstanding simulated drowning longer than I would have ever imagined humanly sustainable. All the while, KSM was cryptically responding “Soon you will know” to demands for information about future attacks on the homeland. As the days dragged on, I increasingly became worried that one of two results was inevitable: 1) KSM was going to die before telling us about the next catastrophic attack, and when the attack happened blame would be laid at the Agency’s feet for killing him before he could tell us; or 2) he would weather the EITs, not tell us about the next attack, and when the attack happened blame would be laid at the Agency’s feet for not getting the information out of him. Either way, it was an unthinkable scenario.

Finally, his interrogators reported back that his resistance had been broken. He was prepared to talk, probably not entirely fully and honestly, but enough to justify stopping the EITs. What EIT ultimately brought him to “learned helplessness”? The interrogators seemed divided, but when I later talked to the one that I knew longest and best, a guy I knew to be a total straight shooter, he had no doubts. “It was the sleep deprivation,” he told me as we smoked cigars during a lunchtime walk around headquarters one day. “We figured out KSM would rather die than not be able to sleep. Besides, he also figured out after a while that we weren’t going to waterboard him to death.”

KSM was the third detainee in CIA custody to be waterboarded. That was in the spring of 2003. Overall, the Agency kept a cumulative total of about one hundred prisoners in its black sites in the seven years the EITs were in existence, from 2002 until early 2009. KSM was the last one waterboarded. Again, in succeeding years outside groups would claim otherwise. If that were true, I am convinced I would have known about it. And I didn’t.

Meanwhile, during these early months of the EIT program, a small, select group of senior government policymakers were being brought into the loop. On White House orders, the OLC had provided its August 1 memorandum only to the CIA and the White House. Nonetheless, the
existence of the memo and the details of the EITs were soon briefed to the National Security Council Principals Committee, which, as the term implies, consists of the most senior of the president’s national security and foreign policy advisors. Every administration has had such a group, although the official name and membership have sometimes varied over the years.

In the first term of the Bush administration, the Principals Committee was chaired by National Security Advisor Condi Rice. She would sit at the head of the table in the cramped White House Situation Room, with the seal of the president of the United States appearing over her head on the dark-paneled wall behind her. Arrayed on either side of the table would be the members: Secretary of State Colin Powell, Secretary of Defense Don Rumsfeld, Chairman of the Joint Chiefs of Staff Dick Myers (and later Pete Pace), Attorney General John Ashcroft, White House Chief of Staff Andy Card, White House Counsel Al Gonzales, and DCI Tenet. Vice President Cheney occasionally would sit in on the sessions in which the EITs were discussed (otherwise, his chief of staff, Scooter Libby, or his counsel, David Addington, would attend). Each member would be allowed to bring what was referred to as a “second,” meaning an aide who would sit behind his boss, crunched into the small chairs along the walls of the Situation Room. As the designated briefer for the EITs, George Tenet was allowed to bring a couple of additional aides, which always included his deputy, John McLaughlin, and frequently included me and a senior CTC official.

As a backbencher, I found it fascinating to observe the body language and dynamics of the various principals at these sessions—held every month or so—as George would give his detailed updates on the specifics of the EITs and how they were being administered first to Zubaydah, then al-Nashiri and bin al-Shibh, and finally KSM. Some, such as Card and Myers, would sit there stoically. Ashcroft was mostly quiet except for emphasizing repeatedly that the EITs were lawful. Rumsfeld was notable more for his frequent, conspicuous absences during these sessions—he kept trying to get his chief intelligence deputy, Steve Cambone, to attend in his place but was always rebuffed by the White House. It was quickly apparent that Rumsfeld didn’t want to get his fingerprints anywhere near the EITs. But the most interesting figure of all at these meetings was Colin Powell. Now, there was a man giving off an unmistakable vibe of
being there out of a sense of duty but intensely uncomfortable about it. At the end of each EIT update session, Powell would bolt out of the Situation Room as fast as he could.

It was also interesting, and illuminating, to listen to how the various principals reacted to the descriptions of the various EITs. Understandably, George Tenet spent more time talking about waterboarding than anything else. Yet I don’t recall there ever being much in the way of resistance from any of his colleagues around the table about waterboarding, or the way it had been used extensively on Zubaydah and KSM. What instead sticks in my mind is how Condi Rice, for instance, seemed troubled by the fact that the detainees were required to be nude when undergoing some of the EITs. Colin Powell, on the other hand, seemed to view sleep deprivation as the most grueling of all the techniques.

The one senior U.S. Government national security official during this time—from August 2002 through 2003—who I believe was not knowledgeable about the EITs was President Bush himself. He was not present at any of the Principals Committee meetings (in my experience over the years, it was rare for any president to attend such sessions), and none of the principals at any of the EIT sessions during this period ever alluded to the president knowing anything about them, or expressing the view that he needed to be told. I also never heard anything to that effect in the numerous other separate discussions on EITs we had with individual principals. As late as 2005, I relayed to Steve Hadley, who had succeeded Rice as national security advisor, a recommendation by the CIA inspector general that President Bush be briefed on what the EITs were. Hadley, an experienced foreign-policy hand and a careful, disciplined lawyer, responded evenly: “That recommendation will be taken under advisement.” I did not hear anything further on the subject.