Company Man: Thirty Years of Controversy and Crisis in the CIA (38 page)

Meanwhile, the EIT program continued apace. But as 2003 turned into 2004, the shock and fear generated by the 9/11 attacks were becoming
an ever more distant memory for the country. There had been no second wave of attacks against the homeland, which was of course a blessed thing. At the same time, inevitably, the passage of time and the absence of another attack resulted in the political pendulum starting to swing back, with the message to the CIA migrating from “protect us at all costs” to “what the hell have you guys been up to, anyway?”

As I write this, with all vestiges of the EIT program dead and buried for years courtesy of the Obama administration, the postmortem debate about its utility and morality rages on. Books devoted to both sides of the debate continue to be churned out, including “insider” accounts by former government officials such as the CIA’s Jose Rodriguez and the FBI’s Ali Soufan. In his 2012 memoir, Rodriguez, the former CTC chief and DDO in the immediate post-9/11 years, forcefully defends the necessity and value of the EITs, spelling out in detail the number of plots thwarted, the thousands of intelligence reports generated, and the fact that the universally praised, seminal 2004 report of the 9/11 Commission relied so heavily, and placed such credibility, on what CIA detainees such as the waterboarded Abu Zubaydah and KSM had to say about the 9/11 attacks and other plots. Soufan, a seasoned FBI interrogator who participated in the pre-EIT questioning of Abu Zubaydah in 2002, argues just as vehemently in his 2011 book,
The Black Banners
, that the EITs were unnecessary and feckless.

For my money, the best “outsider” perspective on the early years of the EIT program was Marc Thiessen’s 2010 best-selling book,
Courting Disaster
. Thiessen, a conservative columnist and a former speechwriter in the Bush White House, obviously came at the subject from that ideological perspective, but his exhaustively researched book makes what I consider the most authoritative case yet presented on the necessity, morality, and effectiveness of the program.

Nevertheless, I suspect that the heated, emotional debate about the EIT program will continue indefinitely even as the program itself recedes into history, with both sides hurling charges—and statistics about intelligence reports produced and attacks averted—at each other. I will not rehash those same arguments in any great detail here. Instead, let me offer a somewhat different perspective on why I became convinced during those first couple of years of the program that it was the necessary and right thing to do. It comes down to something pretty basic: Every,
and I mean every, career CIA employee who was involved in it believed in it wholeheartedly and unswervingly.

Why was that the most decisive factor for me? Because after twenty-five years at the Agency, I had a pretty good handle on the culture and psyche of the career CIA workforce. In the 2002–2004 time frame, it was what it always had been in my experience—a polyglot group of professionals from all walks of life and from all across the spectrum in terms of their political persuasions. Like me, many of the career employees who played a role in the EIT program had been around Langley long enough to understand that we were all going down a road paved with peril for us personally and professionally. At all the meetings I would attend with them about the program as it was developed and implemented—the hard-bitten DO operatives, the studious DI analysts, the earnest if sometimes nerdy scientists and psychologists—I would observe them closely, watching for any hint of doubt or skepticism about the wisdom of the EITs or the results they were achieving in terms of significant, reliable, otherwise unobtainable intelligence about Al Qaeda. I knew that some of them harbored views on the liberal side of the political spectrum and were not generally fond of the policies of the Bush administration. And, as I say, they were all savvy enough to recognize that being connected to the EIT program was not destined to be career-enhancing for them in the long run. Yet none of these career professionals ever wavered—it’s not that they were rabid cheerleaders for the program, but they were staunchly, if stoically, convinced that EITs were proving to be an indispensable element to discovering and thwarting a reprise of the 9/11 attacks.

Nonetheless, beginning in 2004, outside factors were serving to erode the foundations of the EIT program. It, and everyone associated with it, would become vulnerable. Myself included.

Looking back, 2004 was a perfect storm for the EIT program.

Media leaks about the CIA secret prison system and the EITs had begun, drip by drip. On White House orders, all of it was still being kept from all but a handful of top congressional officials, so it was unlikely that the leaks were being sprung on Capitol Hill. Inside the Executive Branch, however, it was a different story. Technically, it was still a top-secret, compartmented program, meaning that information about it could
be provided only to officials who had a demonstrable “need to know.” But the reality is that every closely held secret seeps into an ever-widening audience inside the Executive Branch. Outside the CIA, senior national security political appointees come and go, and inside the CIA, career officers regularly rotate into and out of components conducting major covert-action programs. And no CIA covert-action program was ever bigger than the CTC’s hydra-headed, post-9/11 offensive against Al Qaeda. In particular, the secret prison/EIT program was growing like Topsy, with more HVDs being captured and the number and location of the prisons changing as operational requirements dictated.

Leaks, in short, were bound to happen. And, as usually happens, some of the leaks were on the mark, while others were wildly off. Prisons were alleged to be located in countries where they never existed (as this is written, the exact location of the prisons is one of the very few remaining classified facts about the program) and nonexistent techniques were cited as part of the program. Still, the tidbits and sound bites were tantalizing and sinister—“black sites,” “waterboarding,” and the like. Let’s face it, they made for great copy.

Meanwhile, in April 2004, the Abu Ghraib scandal burst into the public consciousness. The abuse of prisoners by military guards at the Iraqi prison, documented in a series of shocking, repulsive photos by the guards themselves, was in many ways the tipping point of the post-9/11 era for the CIA. The photos were horrifying—naked Iraqi prisoners posed in piles with grinning male and female guards looking on approvingly, a prisoner with electrical wires attached to every appendage, and on and on. None of the prisoners were part of the Agency’s program, and the cruelty and sadism depicted in the photos made the EITs seem almost benign by comparison. Of course that wasn’t apparent, and couldn’t be forcefully pointed out at the time, because of the veil of secrecy over the EIT program. So the public and the majority of Congress could be forgiven for conflating what had happened in Abu Ghraib with what the Agency was doing in its black sites, whatever that was. The images in those photos were absolutely devastating, and I don’t believe the EIT program ever was viewed, even by non-CIA people inside the government who were present at its creation, in quite the same way as before.

Most notably, it looked like the Justice Department was starting to wobble. John Yoo (along with his elusive boss, Jay Bybee) was long gone
from the OLC. In late 2003, a former Harvard law professor named Jack Goldsmith took over the reins at the OLC, and he proceeded to review the national security legal opinions Yoo had prodigiously churned out during his tenure. And Jack Goldsmith didn’t like what he was reading. I consider Jack Goldsmith not only a man of immense intellectual firepower and integrity, but also one of the best and most lasting friends I have ever made inside the government. But back in 2004, Jack was scaring the hell out of me.

For starters, he repudiated the Yoo-authored legal opinion authorizing the NSA’s unprecedented, far-reaching post-9/11 terrorist surveillance program. The CIA played only a supporting, relatively minor role in that program, and I didn’t even see the Yoo opinion until David Addington pulled it out of his office safe one morning in early 2002 to let me read it for the first time (and I will readily admit that it was so long and so technically detailed that I didn’t understand much of it). But then Jack turned his attention to a Yoo opinion that struck closer to the EIT program. On August 1, 2002—the same date of the top-secret eighteen-page OLC memo to me legally authorizing waterboarding and the other EITs—Yoo sent a separate, unclassified fifty-page memorandum to the White House counsel, Al Gonzales. It was clearly crafted as an OLC analogue to what he had sent to me on the same day, and it basically was a lengthy, bone-dry law-review-type article on the standards of conduct under the torture statute in the area of interrogations. It was, not to put too fine a point on it, a very aggressive interpretation of the Executive Branch’s powers and prerogatives under the statute.

I never entirely understood why the OLC decided to turn my request for guidance on EITs into two opinions—the classified memo to me, the unclassified memo to Gonzales—on the same day on the same topic. And, honestly, I didn’t pay the Gonzales memo all that much attention at the time; after all, the memo to me stood on its own and gave the Agency what we needed, which was detailed, definitive legal authorization to conduct the EITs. I only truly focused on the Gonzales memo nearly two years later, when Jack Goldsmith decided it was fundamentally, fatally flawed. In June 2004, he recommended, and Attorney General Ashcroft agreed, to rescind (“withdraw” is the formal term) the Gonzales memo. True, Jack took pains to emphasize to Scott Muller and me that the OLC would continue to stand behind its classified memo to me on the EITs,
but I was only partially mollified. In my experience, OLC memos almost always stood the test of time, and on those rare occasions where one was rescinded, it was done by a succeeding administration. Here, a Bush appointee was dumping a memo prepared less than two years earlier by a previous Bush appointee. It was a disconcerting, alarming turn of events. Was it a precursor to a subsequent OLC moonwalk on the classified memo? Were the leaks about the program or the Abu Ghraib scandal starting to rattle the Justice Department? Was the EIT program—was the CIA, for that matter—destined to be left in the lurch?

I didn’t realize it at the time, but it was all starting to get to Scott Muller. Dropped from private practice into the cauldron of the new EIT program scarcely eighteen months earlier, he couldn’t have anticipated the nature and extent of the pressure he would face or the stakes that would be involved. No one from the outside, no one new to the intelligence world, could be expected to. By mid-2004, he was wrangling, at various times, with the CIA IG, John Helgerson, Al Gonzales and David Addington at the White House, even the ineffable Jack Goldsmith at the OLC (who himself, worn down by the relentless stress of duels with the Bush White House, tendered his resignation in June 2004, less than a year after he took the job). In mid-July, Scott privately told me he didn’t think he could be an effective advocate for the Agency too much longer. Totally oblivious, I assumed he meant he would probably be stepping down in a few months.

Not so. “I’m submitting my resignation to the White House today,” he said. “I intend to be gone in a couple of weeks.” That meant the end of July 2004. I can’t remember now if Scott also told me that he had already informed George Tenet of his decision. But a few days earlier, George had suddenly announced his own personal life decision: He was resigning as CIA director, effective July 11. George had valiantly served for seven tumultuous years, the second-longest DCI tenure in the Agency’s history. He was burned out, exhausted by his straddling of the pre- and post-9/11 era, and dispirited by the Iraq WMD disaster and his attendant disenchantment with and alienation from the White House.

So there I was, at the end of July 2004. Acting general counsel. Again.

Thus, at the time of the sudden, nearly simultaneous departures of Tenet, Muller, and Goldsmith, I was left with a festering situation where various
factors seemed to be conspiring to threaten the original legal and policy underpinnings of the EIT program. In his final few weeks, Scott Muller had gotten into a nasty dispute with OLC over whether it had earlier agreed to the proposition that the program did not violate the terms of Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.