Playing to the Edge: American Intelligence in the Age of Terror (45 page)

Holder apparently never got the memo. He and his staff, according to published accounts, expected release to lead to “a groundswell of support for an independent probe.”

When it didn’t, they persevered. By summer the AG was pushing to release the CIA inspector general’s 2004 classified report on the interrogation program and to reopen investigations of agency officers.

For the agency, this was like a recurring bad dream. The entire IG report had been available to the leadership of the intelligence committees since 2004 and to all members of the committees and an extensive number of staffers since 2006.

The agency had cooperated extensively in the prosecution of an agency contractor who was convicted for manslaughter following the death of one detainee. The agency had also referred other findings of inappropriate behavior to the Department of Justice, where they were reviewed thoroughly by career prosecutors in the Eastern District of Virginia, who ultimately declined further prosecutions. (Holder later admitted that he had not read the career prosecutors’ declinations.) Finally, following the prosecutors’ decision not to act, the agency took its own disciplinary action, where appropriate.

Leon Panetta reportedly opposed further DOJ actions in a series of profanity-laced outbursts in the Situation Room. He also took the unusual step in early August of penning an op-ed in the
Washington Post
. He reported, “Last month, at a meeting overseas of intelligence service chiefs, one of my counterparts from a major Western ally pulled me aside. Why, he asked, is Washington so consumed with what the CIA did in
the past, when the most pressing national security concerns are in the present? It was a very good question.”

To no avail. Within a few weeks the administration released a lightly redacted version of the CIA inspector general’s 2004 report, more Department of Justice legal opinions, as well as a stack of correspondence between CIA and the Office of Legal Counsel. Holder also announced that he had directed John Durham, who was already investigating the agency’s destruction of videotapes (see chapter 12), to expand his inquiry to determine whether a full criminal investigation of agency conduct was warranted.

The president had at least tacitly sided with his attorney general. Leon had been unable to stop the train. Now seven of his predecessors stepped forward to try their hand. In mid-September we wrote the president urging him to reverse Holder’s decision to reopen the criminal investigations. The letter rehearsed the usual arguments: foreign services will be more reluctant to collaborate; agency officers will become more risk-averse; public disclosures will help al-Qaeda elude US intelligence.

The core argument, however, was one of fairness. “If criminal investigations closed by career prosecutors during one administration can so easily be reopened at the direction of political appointees in the next, declinations of prosecution will be rendered meaningless. . . . [Officers] must believe there is permanence in the legal rules that govern their actions.”

Former CIA directors are not an especially close-knit group. They may get together once or twice a year to hear from the current director, but they served different presidents in different times, under different circumstances. It would be hard to get them all to agree that a certain day was Tuesday.

But, once we got the language down, getting agreement to sign the letter was not a heavy lift. All but three former living directors signed the document. Bob Gates was serving as secretary of defense, so we didn’t even inform him. George H. W. Bush was a former president, and it
would have been inappropriate for us to ask him to comment on the actions of a successor. Admiral Stansfield Turner, who was approaching his eighty-sixth birthday, simply deferred on the grounds that he was not current on the issue. We didn’t press him.

It was axiomatic that three of us—Goss, Tenet, and I—would sign; after all, we ran the program. But Woolsey and Deutch were long gone, after having served in the Clinton administration. William Webster was a former federal judge and head of the FBI. And Jim Schlesinger’s body of work included an investigation into DOD’s abuse of prisoners at Abu Ghraib.

All that said, we did not impress. The president noted our concerns with a fairly dismissive, “I appreciate the former CIA directors wanting to look out for an institution that they helped to build.” Although he repeated his preference to “look forward and not backward,” he declined to intervene.

The investigation lasted a full three years, during which scores of agency officers were interviewed and many appeared before a grand jury.

The whole affair created a sense of siege at the agency. In February 2010, after the death of seven agency officers and contractors in the suicide bombing at Khost, the agency held a memorial service in a large tent in front of the Original Headquarters Building. The president attended, as did other political leaders like Speaker of the House Nancy Pelosi.

Several eulogists were from the Counterterrorism Center, the very people most affected by Holder’s and the president’s decisions and by Pelosi’s accusation that the agency routinely lies. One eulogist may have signaled the sense of the “them vs. us” estrangement when she highlighted “the privilege of being part of a real band of brothers and sisters engaged in a common struggle.” There was an almost unspoken, “We’re glad you’re here but this is really about us. We were doing this before you got here and we will be doing this after you leave.”

The disclosures and renewed investigations were even the cause for
some dark humor at the agency. At General Counsel John Rizzo’s retirement in late 2009, the emcee was reading a series of letters—testimonials to John’s work. As he was closing, he said that he had one more. While reaching for a document in his pocket, he described it as being personally for John from Attorney General Holder. “John,” he read, “you have the right to remain silent.” It was several minutes before the laughter had died down enough for the ceremony to continue.

But the impact of multiple investigations was no joke. CIA was servicing Durham’s investigation into the destruction of the tapes, the reinvestigation into incidents detailed in the IG report, and accelerated congressional inquiries on a variety of fronts. Beyond the impact on morale, foreign relations, and the willingness to embrace risk, there was just a raw manpower bill that the agency had to pay. And it was a high-end manpower bill, to boot. Responding to all those inquiries required some of the best talent the agency had to offer. A permanent office was set up on the seventh floor opposite the director’s suite to manage the flow.

Three years and six days after the attorney general reopened investigations, he and prosecutor John Durham announced that they would not pursue criminal charges against anyone in CIA’s RDI program. The bloodletting, at least inside the executive branch, appeared to be over.

Holder had been consistent throughout: messianic in his focus, politically tone-deaf, and indifferent to contrary evidence and views.

Panetta was equally consistent, warning that by focusing on the past, we were risking the present and the future.

The president seemed to want to have it both ways. He came out looking inconsistent to people on both sides of the issue.

He may have viewed splitting the difference as his best principled alternative, but it also had a political appeal. The president had a problem. To the disappointment of many, he had doubled down on much of his predecessor’s counterterrorism programs. Telephone metadata. State secrets. Renditions. Targeted killings. Military commissions. Frankly, there was a bigger difference between President Bush’s first and second terms than there was between him and his successor.

And that was a political problem for President Obama, who campaigned fundamentally on not being George Bush. Let me show you how different I really am, the president must have reasoned. Let me show you what I stopped. And so he released the interrogation memos and allowed (perhaps supported—the record is not clear) his attorney general to release more documents and reopen already closed cases.

The folks at CIA paid a heavy personal price, but perhaps they shouldn’t have felt surprised or offended. Personally the president had showed them some appreciation, but this was business and they were props.

And there was more to come.

About the time in 2012 that Holder was standing down the Durham inquiry, my cell phone rang and George Tenet asked me if I had heard about the “SSCI report.” I was vaguely aware that Democrat committee staff had been working on something, but I truly had to plead ignorance. “Haven’t we seen this movie before, George?” I asked.

In fact, we hadn’t, which became really clear two days after the 2012 presidential election. George, Porter Goss, John McLaughlin, and I (directors and acting directors during the RDI program) had arranged for an agency update. Michael Morell, the deputy director and a good friend to all of us, took the meeting and outlined the draft SSCI Democrat report that the agency had recently received. It was an unrelenting prosecutorial screed that accused us and the agency of going beyond our authorities and lying to everyone about that and about the effectiveness of the program. We were all more than a little stunned. And angry. We asked how the Democrat staff could arrive at those conclusions without talking to any of us.

We also asked why this was being done. We were told that the SSCI staff director had said because Senator Feinstein wanted to be sure that this would never happen again, which struck us as a conclusion that then launched a search for data.

The agency was as livid about the report as we were, and they were
going to push back hard, since the draft had been selective in citing documents, had errors of fact, and seemed ignorant of the way that intelligence really worked.

It was obvious that this was really going to be interesting when the public pissing started just a few weeks later over (of all things) a movie,
Zero Dark Thirty,
that dramatized the intelligence work that led to the killing of Osama bin Laden. There were complaints that the intelligence and special operations communities had leaned too far forward helping director Kathryn Bigelow and screenwriter Mark Boal. Several members of the Senate demanded that Sony Pictures issue a disclaimer on the role of CIA interrogations in the hunt.

It took two more years of arguing between CIA, the White House, and the SSCI Democrat staff about data, analytic tradecraft, and classification before a five-hundred-plus-page summary of the Feinstein report finally saw the light of day. During that time, the former seniors implicated in the report met or teleconferenced periodically to stay updated and to prepare a response.

It would be hard to overstate our anger, but responding to the calumny was going to be challenging. We were only given a two-week window in August 2014 in which we could actually access the summary report, the agency’s 130-plus-page response, and the SSCI Republicans’ 150-plus-page rebuttal. With prior travel commitments, I managed to squeeze in about four hours of reading one afternoon.

Undeterred, we submitted our own Freedom of Information Act requests to CIA to get other documents to buttress our case. Bill Harlow, George Tenet’s superb public affairs chief, built a Web site, ciasavedlives .com, so that we could make documents available to the press and public. We offered background briefings to any print or video journalist who would care to listen. John McLaughlin crafted a magnificent 2,300-word op-ed that we pre-positioned with the
Wall Street Journal
’s Web site along with a shorter version for the print edition. The op-ed was signed by the three directors and the three deputy directors who had managed the RDI
program. I wrote a companion piece for the British press, all to be triggered by the release of the Feinstein report itself, which finally took place on December 12, 2014.

John’s argument in the
Journal
summarized our case:

The Senate Intelligence Committee’s report on Central Intelligence Agency detention and interrogation of terrorists, prepared only by the Democratic majority staff, is . . . a one-sided study marred by errors of fact and interpretation—essentially a poorly done and partisan attack on the agency that has done the most to protect America after the 9/11 attacks.

He challenged the report’s findings that CIA routinely went beyond the authorized interrogation techniques and misled the Justice Department, the White House, Congress, and the American people. He pointed out that the report chose to ignore the context of the time in which the program was launched and the fact that the agency was not operating alone (he noted more than thirty briefings to Congress).

Most important, he (like the agency and Republican rebuttals) challenged the “claim that the CIA’s interrogation program was ineffective in producing intelligence that helped us disrupt, capture, or kill terrorists,” citing multiple examples of its effectiveness, including the bin Laden takedown.

One agency wag put it more bluntly: “The Feinstein report would have you believe that the people who got bin Laden just didn’t know how it was they got bin Laden.”

I received special mention in the Feinstein report, being cited more than three times as often as any of my predecessors. That was not because of the number of detainees I had (two in a total of about a hundred), but rather because I was the director who briefed the entire committee on the full scope of the program.

They particularly focused on my April 2007 testimony, dedicating all of appendix three to pointing out what they believed to be inaccuracies.
A lot of the issues had to do with the still raging argument over what Abu Zubaida (the first detainee to be waterboarded) told us, when, and why. Other issues could fairly be described as my briefing the standard and their searching through millions (literally) of pages to find the deviations, most of which were early in the program.

Then there was the issue of what constituted the program. I said that the program I was briefing was created, at least in part, because of the poor agency performance with early battlefield captures—as thoroughly documented and shared with the SSCI by CIA’s inspector general. The committee knew that Gul Rahman had died in agency custody, for example, but CIA never considered him part of
this
program.