Playing to the Edge: American Intelligence in the Age of Terror (32 page)

So I had a lot of time for the CIC and was updated by them regularly on their cases, leads, and suspicions. It was the most depressing ninety minutes on my calendar.

The case of Harold Nicholson is a good illustration. Nicholson was a veteran CIA case officer, former chief of station, instructor for new recruits at the Farm and, beginning in the mid-1990s, a Russian spy. He was tripped up by the agency’s CI efforts, reenergized after the Ames debacle, when he indicated deception during a routine polygraph. Placed under surveillance by the FBI, he was arrested at Dulles trying to leave the country with classified information. In 1997 he was sentenced to more than twenty years in prison for espionage.

Case closed? Not quite. Throughout most of my time as director a decade later, the CIC routinely briefed me that Nicholson, during family visits in prison, was suborning his youngest son, Nathaniel, to pursue money he claimed the Russians still owed him. As directed, Nathaniel, who adored his father, pursued the Russians and his dad’s back pay until he, too, was arrested in late 2008. (Harold got an additional eight years. Young Nathaniel turned state’s evidence and got probation.)

I listened to the briefings with amazement bordering on disbelief. The CIC folks took it in stride.

Greed, dishonesty, folly. We can all lament the results of original sin. But this was something more than just human frailty. This was espionage. Intelligence services recruit human sources through money, ideology, compromise, and ego (abbreviated MICE in the trade). We were good at it. The work of the CIC was proof that we weren’t immune from it.

Fortunately, during my time as director, there were no hostile penetrations of CIA (that have yet been detected, at least)
.

But there were plenty of other issues. Like when do you impose accountability when things go wrong? Working on the edge, with narrow margins, when should officers be judged culpable?

Some calls are easy. In one instance a small group of officers (actually highly regarded ones pursuing a legitimate objective) directed actions beyond their mandate. They were outside their lane, knew it, and covered their tracks both before and after the wheels started flying off the operation. Since they were less than forthcoming internally and we believed them, we weren’t giving Congress the full story. When we finally learned the truth from outside sources, dismissal and referral to the Department of Justice was as swift as it was certain.
“To live outside the law, you must be honest
.
”

Then there was a completely different kind of case. In 2007 the CIA inspector general finished his review of the rendition and detention of Khalid el-Masri, a German citizen who had been detained by Macedonian authorities on New Year’s Eve 2003 because his passport appeared suspect and his name matched a terrorist associated with the 9/11 Hamburg cell. A few weeks later he was turned over to CIA and taken to a black site for interrogation based on the analytic judgment of a senior in the AQ cell in the Counterterrorism Center.

El-Masri was the wrong man. He had a clouded past, but he was
not
the Khalid el-Masri we were pursuing. The passport checked out, and it wasn’t long before interrogators knew that this was a dry hole intelligence-wise. He was released in late May.

There were lots of issues here. One was the time (weeks to months) it took to release el-Masri once CIA knew his true identity. Another was the manner of release: dropped on a road in the Balkans with no apology and little compensation. Finally, there was the public relations disaster (and later diplomatic storm) when el-Masri predictably went public with his story of confinement and claims of abuse.

But none of those formed the core issue in the inspector general’s
report.
The
issue there was the IG’s recommendation that I form an accountability board (a kind of professional jury) to judge the behavior of the analyst who had launched the chain of events.

I declined, and that later became part of the SSCI Democrat narrative in their December 2014 report on detentions and interrogations that characterized us as a rogue and unaccountable agency.

Actually, it was a pretty easy call. The analyst was among the best al-Qaeda watchers we had. She had been doing this since well before 9/11 and her knowledge was encyclopedic. So I’m not sure whom I would have gotten to second-guess her judgment.

But there was a bigger question, and it had to do with the nature of intelligence and the near-absolute inappropriateness of applying law enforcement models to its conduct. We make much in American courts about our willingness to let the guilty go free to protect the innocent. Benjamin Franklin summarized it: “It is better a hundred guilty persons should escape than that one innocent person should suffer.” But that is a process of assigning guilt and meting out punishment after an evil has been done, with time not a factor, and with the appropriate standard of proof being beyond reasonable doubt.

None of that applies to intelligence, where the evil is pending, time is always critical, and where the objective is to enable action even in the face of continued doubt. Absent clear malfeasance, if I had disciplined an analyst for a false positive (thinking someone was a terrorist when he wasn’t), the system would have digested the lesson in the most perverse way: the most important thing is to avoid false positives (you’ll be punished for those) even if it means a few true positives slip through (bad things might happen, but probably not to you).

What might be admirable for a court system is unconscionable for an intelligence agency. My goal was to create circumstances where we got more of both the positives and negatives right, not to incentivize one at the expense of the other. And one message I could not afford to send to our analysts was, “Take hard jobs, make tough choices, and if you f— up,
we’re coming after you.” After all, we still wanted to get the
other
Khalid el-Masri.

I suppose I could have had that wrong. But it seems so clear to me—now as it did then.

El-Masri was out of CIA custody two years before I became director, but the discipline was mine to decide more than a year into my term. That’s too long a time between flash and bang (and actually telling Congress about the mistake). But that was near instantaneous compared with my having to deal with an event from 2001 in 2008 as I was about to walk out the door.

On April 21, 2001, a Peruvian fighter jet participating in a counter-drug operation called the Air Bridge Denial Program fired into the fuselage of a small plane carrying an American missionary family from Michigan. The plane ditched in the Amazon, but not before the mother and infant daughter were dead. It was the fifteenth shoot-down in a program that began in 1994 and which, to that point, had been viewed as a success. CIA, operating under covert action authorities, energized the whole effort by helping the Peruvians identify and track potential drug-trafficking aircraft, but the authority to fire when a plane refused to land was always Peruvian.

The investigation into this tragedy was understandably disrupted by the 9/11 attacks, less than five months after the shoot-down. It wasn’t until 2005 that the Department of Justice finally declined prosecution and returned the case to the agency for its own resolution. I became director five years after the shoot-down and began a routine of asking after the status of the IG investigation in my meetings with the inspector general.

The victims of the attack were from Congressman Pete Hoekstra’s district in Michigan, and he viewed the delay as a cover-up. It wasn’t, but I did agree with his charge that “justice delayed is justice denied.” And not for just the Michigan family. One very hot Sunday morning I was sitting at a table in the mess hall of the CIA station in Baghdad when an officer sat beside me and simply recited a rather large sum of money she had
spent over a rather large number of months. There, in a war zone, she was describing to me her personal legal expenses and the amount of time she had been left hanging after Peru. “Got it,” I tersely replied.

The IG report got to my desk in August 2008. As recommended, I appointed an accountability board, six people in all, two from inside the agency, four from outside (including two who knew a lot about shooting down airplanes). They didn’t report out until I was long gone. In 2010, Director Panetta sanctioned sixteen individuals, many of them retired from the agency, for “shortcomings in reporting and supervision.” An accompanying agency press release emphasized that there was no evidence of a cover-up, that all the previous shoot-downs had met the legal criteria of “reasonable suspicion,” and that no CIA officer had acted inappropriately even in the April 2001 event.

The
New York Times
was far more condemnatory than the final judgments of the accountability board or of Director Panetta and his press release. Based on the language of the original 2008 IG report, the
Times
alleged a “culture of negligence and deceit,” and it said CIA officers “routinely violated agency procedures, tried to cover up their mistakes, and misled Congress immediately after a missionary plane was accidentally shot down in 2001.”

So there was more than a little daylight between the IG’s language and the agency’s final resolution. More on the IG and its investigations shortly, but there was one comment from the IG report that I thought was spot-on. It said that a “failure to provide adequate oversight and report violations precluded a policy review and a possible change of course that could have prevented the shoot-down of April 2001.”

The real issue with the Peru shoot-down was the validation of targets. The formal rules of engagement had been constructed to give policy makers in Washington comfort that almost nothing could go wrong. But in the field, it was difficult if not impossible to accomplish the complex, multistep, detailed validation process within realistic timelines.

But nobody said that, so the airborne interdiction program was on
autopilot, could not be carried out consistent with its original guidance, and agency officers in the field just did the best they could to square an impossible circle.

Even the agency’s later press release admitted that “procedures associated with this counter-narcotics initiative eroded over time.” They had to if the effort was going to show any results. Turns out that April 21 was an event waiting to happen, since headquarters was unaware of the gap between promise and performance. That’s more a Washington HQ than a Peruvian issue, and it dated back to the original mid-1990s finding that launched the program.

The whole mess shows why agency veterans are wary of covert actions. They counsel to underpromise and overdeliver. In my entire time at CIA the agency itself surfaced just one covert action new start. It was rejected.

Veterans also counsel to avoid temptation when, at the end of an inconclusive NSC meeting, all eyes are looking toward our end of the table for some sort of deus ex machina covert action relief. I frankly lost track of the number of meetings on the genocidal conflict in Darfur that ended that way.

And in those instances when a covert action is assigned and the agency must draft the directive that the president will sign to authorize action, the longest paragraph is invariably the one labeled “Risk.”

Steve Kappes ran something called the CARG, the Covert Action Review Group, to keep us on the right side of issues. Monthly he deconstructed proposed and ongoing operations with a skeptic’s, even a cynic’s, eye. Tough sessions. No autopilots.
“To live outside the law, you must be honest.”
Especially with yourself. All the time.

Steve had the right people in the room: all four deputy directors, the general counsel, lawyers from specific offices, public affairs, legislative affairs, and usually Michael Morell (the agency’s number three). In addition to operators who had covert action successes, Steve always included some with covert action scars.

The group handled what we called the “authorities” and the “permissions.” The “authorities” referred to the overarching approvals within which we functioned. They were usually expressed in documents called findings, because they began with the president’s words “I find that . . .” The “permissions” referred to approvals for specific operations within a finding.

The Bush White House gave us a lot of room in which to operate. I would occasionally choose to call Steve Hadley when we had a unique circumstance, but those conversations usually began with my saying, “Steve, this is my decision and I will make it, but I wanted to alert you that . . .”

I was comfortable with that, since I had quality people helping me. In my first handoff briefing with Leon Panetta, I told him that he was getting the best staff in the federal government. I meant it.

My deputy, Steve Kappes, was one of the most highly regarded case officers in the history of the agency, even if he had kind of stumbled into applying while he was marine drill team commander at their DC barracks at Eighth and I Streets. Straightforward. No nonsense. Similar background to mine. Eastern Ohio to my western Pennsylvania. On more than one occasion, after the room had cleared and we had made a difficult decision, he would turn to me and ask, “Did you ever think two boys from Ohio and Pennsylvania would ever decide such things?” We were close enough that I had no problem, after making an operational decision, turning and simply asking, “You OK with this?” He almost always was.

Our number three was Mike Morell, also from Ohio. I pried Michael away from the National Counterterrorism Center when President Bush tapped me for DCIA. Since Michael had been President Bush’s PDB briefer on Air Force One on 9/11, he strongly backed the move.

Michael’s predecessor as executive director was about to be indicted for bribery, so Michael had some cleaning-up to do. He was up to it. I once described him to the workforce as having “insight, dedication, creativity, and sheer talent.” Since he had been a career analyst, I made Michael the deputy director for intelligence, the head of our analytic work,
in 2008. He said that it was like going home. Michael’s replacement was Scott White, Naval Academy graduate, submariner, captain in the naval reserve, and agency veteran.