Company Man: Thirty Years of Controversy and Crisis in the CIA (36 page)

Therefore, I was startled, to say the least, when I read
Decision Points
, President Bush’s 2010 memoir. In it, Bush not only forthrightly defended the use and effectiveness of EITs but put himself in the middle of their conception and employment on Zubaydah and KSM. On pages 168 through 171, he wrote the following:

[In late March 2002] CIA experts drew up a list of interrogation techniques that differed from those Zubaydah had successfully resisted. George [Tenet] assured me all interrogations would be performed by experienced intelligence
professionals who had undergone extensive training. Medical personnel would be on-site to guarantee that the detainee was not physically or mentally harmed. . . .

I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. . . .

[On March 1, 2003,] George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Shaikh Mohammed. . . . “Damn right,” I said.

All of this was news to me. And some of it didn’t compute. The president reviewed the EITs to be used on Zubaydah in advance? When would that have been? The Agency began them just a couple of days after we got the go-ahead memo from the OLC. As for the two techniques he said he vetoed, I have no idea what they could have been. Finally, there would have been no need to consult with the president in advance before using EITs on KSM—we had already gotten the okay from Justice that all the EITs it had green-lit for use on Zubaydah could also be applied to KSM.

The president’s narrative might have made more sense to me if he had attributed it to conversations he had with one of his close White House advisors—say, Condi Rice, Al Gonzales, even the vice president. After all, we at the CIA necessarily would not have been made privy to private, offline discussions inside the West Wing. But Bush didn’t assert that in his memoir—instead, he said he had the conversations in question with George Tenet. And that’s what I found most puzzling of all. I was in daily contact with George in the run-up to the authorization to the EITs and their use on Zubaydah and the other detainees in the 2002–2003 time frame. All during that time, George had said nothing about any conversations he had with the president about EITs, much less any instructions or approvals coming from Bush. It simply didn’t seem conceivable that George wouldn’t have passed something like that on to those of us who were running the program.

The EIT program in general, and the waterboarding in particular, were—and continue to be—probably the most contentious issues growing out of the Bush administration’s response to the 9/11 attacks. Moreover, EITs played a predominant role in the last seven years of my own career and in many ways were most responsible for my suddenly becoming a public, controversial figure in those final few years. So I was simply
curious as hell—just what was President Bush talking about? Had I been missing something this important all along?

I decided to contact George Tenet after reading Bush’s book. We have remained in touch over the years, and I consider him a close and trusted friend. In November 2010, I sent him an e-mail in which I posed the question as directly as I could: Were Bush’s assertions accurate? George’s response was just as direct: He did not recall ever briefing Bush on any of the specific EITs.

I am left baffled by all this. I view President Bush as a man of great integrity, and I will always be grateful to him for nominating me in 2006 for the position of CIA general counsel. Still, the account in his memoir about his conversations with George Tenet about EITs is specific and vivid, and yet George doesn’t remember any of it. How could George—how could anyone, for that matter—ever forget having conversations with the president of the United States about something like that? It’s impossible. And, as I indicated earlier, there are aspects of the Bush version of events that just don’t add up. So, in the end, I have to conclude that the account in Bush’s memoir simply is wrong.

In the final analysis, I find the episode perplexing but nonetheless admirable on Bush’s part, odd as that sounds. My experience over the years is that a president, and those closest around him, instinctively try to put some distance between him and risky, politically controversial covert actions the CIA is carrying out, even when those actions are being conducted pursuant to a specific authorization by the president. This phenomenon is sometimes referred to as “plausible deniability.” In his memoir, however, Bush does the exact opposite: He squarely puts himself up to his neck in the creation and implementation of the most contentious counterterrorist program in the post-9/11 era when, in fact, he wasn’t.

Now, that’s a stand-up guy.

And then there’s the role of Congress in the EIT saga. The secret directive to the CIA that Bush issued a few days after 9/11 was provided promptly to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. When the EIT program was created in 2002, the White House instructed the CIA to restrict knowledge of the program to the leaders
of the House and Senate, plus the chair and ranking member of the two intelligence committees—the so-called Gang of 8. As always, the CIA dutifully followed White House orders, so for the next four years we told only those select members about the EIT program as it developed and expanded.

The Gang of 8 notification process is explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of “extraordinary sensitivity.” Thus, it was an entirely lawful way to proceed. Nonetheless, I have come to believe that in retrospect, that approach would prove to be one of the biggest strategic blunders the Bush White House made in the post-9/11 era, and I and other Agency veterans also deserve blame for not pushing back at the White House orders much earlier and harder than we did.

The CTC chief, Jose Rodriguez, led the delegation that first briefed the Gang of 8 in early September 2002, shortly after use of EITs began on Zubaydah (the briefing would have been earlier had Congress not been away on summer recess). In his 2012 memoir
Hard Measures
, Jose recounted (and contemporaneous notes by the other CIA representatives, including one of our CTC lawyers, confirmed) how all of the approved EITs were described in detail and how no one on the congressional side expressed any objection to any of them, including waterboarding. Follow-up briefings were given in February 2003 and thereafter, still with not a word of opposition from the Gang of 8.

Flash forward six years—seemingly a lifetime away from the shock and fear spawned by 9/11—to when the newly inaugurated President Obama publicly rescinded and repudiated the EIT program, and for good measure declassified all the EITs. Several members of the erstwhile Gang of 8 seemed to have amnesia about having been briefed at the creation of the program. On the other hand, Nancy Pelosi (ranking minority member of HPSCI in 2002 and by now House Speaker) was anything but wishy-washy: She went before the cameras in May 2009 and insisted strenuously, with a tight grimace and darting eyes, that all the CIA had ever—ever—told her in previous years was that waterboarding had been “considered” as an interrogation tactic, not that it would ever be used.

On its face, her claim was preposterous (the CIA would brief the Hill leadership on something that it was
not
doing?), and even the new CIA director, Leon Panetta, a staunch Democrat and friend of Pelosi’s,
couldn’t let that stand. He released the contemporaneous notes of the 2002–2003 briefings, and Pelosi had to back down. Sort of. Her story then evolved into, well, maybe she knew all along about waterboarding and the rest that were going on, but she had always opposed EITs and, alas, was powerless to do anything about them. All of which was also total, demonstrable bunk. And then, flustered and in full retreat, she refused to say any more about the subject publicly, except to blithely observe, without a hint of irony, that “the CIA lies all the time.” A classy final touch, that, casually slandering an entire institution and workforce. (Not missing a beat, she would continue to receive the personal classified intelligence updates every House Speaker gets, always being gracious and complimentary to her CIA briefers.)

But my main point is this: Pelosi’s prevarications, however reprehensible, in hindsight were hardly unforeseeable. We—meaning the White House and those of us in the CIA who had been around long enough to know better—were naïve to expect that a handful of politicians would remain stalwart forever after being forced to sit and listen to the dicey and disagreeable details of the EIT program in sporadic, off-the-record sessions. The decision in 2002 to limit congressional knowledge of the EITs to the Gang of 8 and to stick to that position for four long years—as the prevailing political winds were increasingly howling in the other direction—was foolish and feckless. For our part, we in the CIA leadership should have insisted at the outset that all members of the intelligence committees be apprised of all the gory details all along the way, on the record, in closed congressional proceedings. To allow all of our congressional overseers—to compel them, really—to take a stand and either endorse the program or stop it in its tracks.

Looking back, it is my biggest regret about the role I played in the EIT program.

But I am getting ahead of myself. By the end of 2002, the EIT program was newly up and running, and all of us involved in it at the CIA were convinced that it was the only way to go. With the August 1 OLC memo to me in hand, I thought that we had strong, enduring legal protection against any charges that the program amounted to torture. But even then, in those halcyon days when the public and the politicians were firmly on the side of protecting the country at all costs against a second wave of Al
Qaeda attacks, I couldn’t entirely suppress a vague sense of foreboding about what starting down the EIT road might ultimately mean to the Agency and to me.

On November 21, 2002, the American Bar Association’s Standing Committee on Law and National Security was holding its annual conference in the ballroom of a large Washington, D.C., hotel. With the 9/11 attacks still fresh in everyone’s hearts and minds, the audience of four hundred or so was the largest ever for the event. As I had done in previous years and would continue to do in the years to follow, I agreed to serve on a panel, with my counterparts at State, the DOD, and the FBI, to give the audience the views of the Executive Branch.

The EITs were the elephant in the ballroom that only I could see. So when the time came for each panelist to offer parting comments, I allowed myself to say this: “We at CIA have to be careful what we wish for. The Agency has gotten all the authorities it has requested, but I wonder what will happen if something goes awry. The pendulum is bound to swing back, and today’s era of political consensus for increased intelligence authorities will come to an end sometime in the future. It will be good for the country when the terrorist threat is perceived to be less, but it could be bad for CIA.”

It was far from a Cassandra-like warning. But for 2002, it wasn’t all that far off the mark, either.

My November 2002 appearance at the ABA conference was a milestone of sorts in my post-9/11 career. It coincided with turning over the reins of the OGC to Scott Muller, who had just been confirmed by the Senate as CIA general counsel. About fifty years old, he was an experienced and highly successful litigator who specialized in high-profile white-collar criminal defense cases. Sad to say, that was a highly desirable skill set for the top CIA lawyer at that point in the Agency’s history.

I had first met Scott during the vetting process a few months earlier, when the White House sent his name, along with those of two other outside lawyers, over to the Agency for consideration. Director Tenet asked John Moseman, his chief of staff; Buzzy Krongard, the executive director; John Brennan, Tenet’s close aide; and me to interview and rank the candidates. We met with each of the three and agreed Scott was clearly the best choice. He came across as a mature, nonideological, low-key guy with a sense of humor. I thought he was a perfect fit for the Agency. He volunteered to us that he considered his greatest strength was as a “crisis manager,” and we all thought that neatly summarized the CIA’s posture in the year since 9/11.