Company Man: Thirty Years of Controversy and Crisis in the CIA (32 page)

I scribbled down the phrase “capture, detain and question” on my legal pad. I was totally winging it now. The CIA, in my experience, never had a program to hold people against their will. I had no idea where we might hold them (although it surely would not be anywhere inside the United States) or what sort of facility they would be held in. The manner in which we would question them did not cross my mind.

I made a few other notes to myself about what to include in any new program—language authorizing the CIA to call upon the services and personnel of all other federal agencies as well as foreign governments, things like that. It was early afternoon by then, and I decided it was time to go home to be with my wife and family. The unaccounted-for plane, United Flight 93, had just been reported as having crashed in a field in Shanksville, Pennsylvania. The carnage, at least for that day, seemed to be over. My trip home to Georgetown didn’t take very long, but it seemed to last forever.

Over the next few days, John Bellinger, the legal advisor to the National
Security Council staff, convened a series of marathon sessions, attended by senior lawyers from the White House and the national security community, to hash out the terms of the new MON. Bob McNamara went to some of the sessions, and I went to others. Less than a week after the 9/11 attacks, President Bush signed off on the final version. Multiple pages in length, it was the most comprehensive, most ambitious, most aggressive, and most risky Finding or MON I was ever involved in. One short paragraph authorized the capture and detention of Al Qaeda terrorists, another authorized taking lethal action against them. The language was simple and stark.

When the MON was delivered to the intelligence committees a day later, Republicans and Democrats alike had the same reaction: Is this enough? Is this everything you guys need to protect the country? As far as I was concerned, there was nothing else we possibly could have included; we had filled the entire covert-action tool kit, including tools we had never before used.

As far as I know, the MON remains in effect to this day.

In mid-October, Bob McNamara told me he was stepping down from his position as general counsel to accept a position in the private sector. It was not entirely a surprise to me, since Bob had been signaling for several months that he was exploring outside opportunities. Once 9/11 happened, however, I assumed he would postpone his plans for a while. Still, I understood Bob’s decision—he had been in office for nearly four grueling years, and the pace and pressure were surely going to become even more relentless for years to come.

And so, when Bob departed in mid-November 2001, I became acting general counsel. It was not an unfamiliar position for me, having filled in for a few weeks at a time during the previous several years when the incumbent GC was out of town or in the interregnum between outgoing and incoming GCs. This would be no ordinary interregnum, of course. Workers were still sifting through rubble at Ground Zero and the Pentagon. The attempted “Shoe Bomber” attack on another U.S. passenger jet, as well as the murderous, unsolved “anthrax letter” incidents in D.C. and Florida, were keeping the nation in the grip of dread and fear. Meanwhile, the most high-stakes, high-risk covert-action program in CIA history was just getting under way. So, yes, I had been “acting” on previous
occasions, but never in circumstances remotely resembling these. To be the chief legal advisor at the CIA at that point of history was at once intoxicating and frightening.

What’s more, I had the distinct impression that this time I could be in the hot seat for a while. In the months before 9/11, when Bob McNamara was making no secret of his plans to leave, I discerned no move by the White House to identify a replacement. Once Bob was gone, I still didn’t. One day early on, I asked John Moseman, Tenet’s chief of staff and by now my close friend, if he knew of any talk about a new general counsel. Based on past experience, I knew that the process could take months—a candidate would have to be interviewed by the director, cleared by the White House political office, undergo a thorough background security investigation, be formally nominated by the president, and confirmed by the Senate.

“The White House hasn’t said anything about it to George, and George hasn’t said anything about it to the White House,” John replied. “So just sit tight. No one’s in any hurry.”

“Have fun,” he added with a mordant chuckle.

In 1996, shortly after he became deputy CIA director, George Tenet had begun convening biweekly meetings with the CTC so that he could be kept personally abreast of world terrorism developments. In the wake of the 1998 African embassy bombings, George had started holding these sessions on a weekly basis. A few days after 9/11, they morphed into a daily ritual that was officially called “the CTC Update” but soon came to be known around the building as “the five o’clock.” It was no longer a mere briefing forum—it became the command bunker in the CIA’s war on Al Qaeda, with George wielding the marshal’s baton.

Each day at the appointed hour, a group of about thirty-five of us would gather around the oblong polished oak table in the director’s conference room to review and discuss the daily developments in the Agency’s full-throttle campaign against Al Qaeda. On one side of the table sat George, along with his deputy, John McLaughlin, Executive Director Buzzy Krongard (a spectacularly successful and colorful investment banker whom George had recruited a couple of years before), Deputy Director for Operations Jim Pavitt, and Deputy Director of Intelligence Jami Miscik. Several other senior officials—the directors of public and
congressional affairs, the CIA comptroller, the acting general counsel, and a few other high-level straphangers—filled out that side of the table.

Across the table were arrayed the CIA’s true warriors in this new, post-9/11 war. Each day about twenty officers from the Counterterrorist Center (CTC) and the Near East (NE) and Special Activities (SAD) divisions would troop in, sit down, and, for about an hour or so, basically scare the bejesus out of the rest of us with up-to-the-minute updates on the latest intelligence coming in on Al Qaeda plans, capabilities, and threats. Their presentation also included descriptions of what our people were doing, or proposed to do, in response.

The maestro of the group was the CTC chief, Cofer Black. An imposing presence with the physique of a retired NFL tight end, Cofer had a face and slicked-back, receding hairline that together reminded some of us of a late-career Jack Nicholson. Also, like most of Nicholson’s screen characters, he spoke in a staccato, world-weary cadence liberally sprinkled with dark, cynical humor. But the dramatic image he presented was not an affectation—Cofer was a bona fide, hard-bitten product of the CIA’s clandestine world, having spent years in hotspots and hellholes where he consistently performed with bravery and verve. In 1994, for instance, he had been the key CIA operative in orchestrating the capture in Sudan and rendition to France of the legendary terrorist fugitive Carlos the Jackal. In the post-9/11 literature, Cofer has been famously cited as having supposedly exhorted his troops to bring him “bin Laden’s head in a box.” I never heard him say that, either at the five o’clock meeting or elsewhere, but having gotten to know him well over the years, it rings true to me as the quintessential Cofer quote.

Cofer typically would lead off the meeting with the intelligence “headlines,” then turn things over to the working-level operatives and analysts lined up in a row down the table from him. One would describe the most recent reports on threats to the homeland. The next would update Al Qaeda efforts to acquire biological and chemical weapons (which reliably elicited the most head-shaking and muttering from the rest of us). After that, a CTC analyst tracking intelligence on the possible location of bin Laden and his top commanders would give the latest update. The next two guys, from the CTC and the SAD, would describe the progress of the paramilitary war in Afghanistan. At the end of the row, the CTC’s financial operations whiz, a thin, pale figure always wearing an impeccably
tailored black suit, would quietly and methodically catalogue all the unprecedented ways in which he was detecting and disrupting Al Qaeda’s international money flow.

One by one, these officers would crisply make their presentations. Some of them were only in their twenties; few were older than fifty. Their preternatural calm and the thoroughness with which these rank-and file employees delivered their daily digests of danger and derring-do were a constant source of wonder to me. Watching them perform, I would think to myself: If the American people could only see this, they would be so proud and reassured.

Shirt-sleeved, tie askew, and chomping an unlit cigar beyond recognition, George Tenet would lean forward and listen eagerly, alternately cross-examining and encouraging the briefers at every turn. Occasionally, he would interrupt and bark out terse orders: That piece of new threat information you just gave me? Get it to the FBI pronto. That foot-dragging you’re getting from the Pakistanis (or the Yemenis, the Saudis, and so on)? I’ll get on the phone tonight and ream them out personally. George was hands-on all the way in those daily sessions.

As the months went on, these daily meetings acquired a certain cachet. Other than a couple of FBI and NSA employees who were on detail to the CTC, no one from outside the Agency was allowed to regularly attend. High-level officials from around the Executive Branch would quietly lobby to get into them, convinced that it meant entrée to some shadowy inner sanctum. In most cases, the Agency would resist those blandishments from outsiders (there was a blanket ban on anyone from a foreign intelligence service getting in, for instance), but on occasion George would allow a visiting U.S. government colleague to attend—I remember the NSA director, Mike Hayden, and the White House homeland security advisor, Fran Townsend, sitting in a few times in those early years.

Ironically, however, the really sexy, sensitive stuff was not bandied about at the five o’clock meetings. For something that was extraordinarily closely held, there would be a “rump” session of sorts scheduled immediately after the five o’clock meeting. These would be held in George’s office, with only a handful of people in attendance. I had an open invitation to sit in on all of them.

One such “rump” session, in those frantic first months after 9/11, sticks out in my mind. The subject was a nascent CTC plan for CIA officers with
weaponized, unmanned aerial vehicles (UAVs) targeting the prey, from thousands of feet up, in their lairs on the Afghan frontier. But in late 2001, drone technology was still a work in progress; it was not yet certain that it would be lethally effective. True, I was fully aware that the MON that I helped prepare clearly sanctioned lethal actions against the Al Qaeda network. But those were only lawyers’ antiseptic words on a page.

Instead, as the fateful year of 2001 turned into 2002, my energies and priorities were being directed to a separate and what proved to be a far more legally perilous area: the CIA’s detention and interrogation of high-value Al Qaeda operatives.

From the outset, the top two names of the Agency’s post-9/11 “most wanted” list were Osama bin Laden and his alter ego, Ayman al-Zawahiri. Technically, I suppose, they were wanted dead or alive, but I remember no one in the know at the CIA who seriously thought that either of them, if ever cornered, would allow himself to be taken into custody. Nonetheless, the Agency’s preferred strategy for the next rung of high-value Al Qaeda targets (HVTs) was to capture them, not blow them away. It was these guys who were the most knowledgeable about the ongoing plots, about who was going to carry out the next wave of attacks, and about exactly where and when they would take place. And in late 2001 and on into 2002, there was every reason to believe Al Qaeda was planning more attacks. The experts at the CIA were convinced of that, and most of the still shell-shocked American public expected it. That same public, and their elected representatives, demanded that the government prevent it from happening, whatever that took.