Company Man: Thirty Years of Controversy and Crisis in the CIA (39 page)

Jack Goldsmith insisted that the OLC had never ruled on the question of whether or not the EITs violated the “substantive” terms of Article 16, meaning that they constituted “cruel, inhuman or degrading treatment” of the CIA detainees. The OLC contended that its conclusion was narrowly drawn on “jurisdictional” grounds: Since the EITs were being conducted outside the United States, the OLC concluded that Article 16 simply did not come into play. The OLC’s view was there was no need to rule on the “substantive” question, since the “jurisdictional” grounds effectively took Article 16 out of the picture. Scott wasn’t buying it—he was convinced that, months before, the OLC had agreed, albeit informally, that the EITs did not violate Article 16’s “substantive” terms. To Scott, the OLC was now backsliding, running for cover in a changing, post–Abu Ghraib political environment.

For its part, the OLC, and the rest of the DOJ leadership, couldn’t figure out what the big deal was. Basically, their position was: Hey, we are telling you CIA guys that Article 16 doesn’t apply, that the EIT program is legal. We haven’t changed our minds on that. What else do you need from us?

It was then, in one of my first acts back in the chair as chief legal advisor, that I decided we needed a new set of written legal opinions from the OLC. We were two years removed from the August 2002 Yoo-drafted memorandum to me on the EITs, and both he and his boss, Jay Bybee, were now long gone. The political climate was changing rapidly from the early post-9/11 months. We had to make sure we were still on solid legal ground for the sake of the Agency as an institution and, more important, for the dozens of rank-and-file Agency officers and contractors dutifully implementing the EIT program. They had to be assured, they deserved to have it confirmed, that under the law they were not engaging in torture. That what they were doing did not constitute “cruel, inhuman or degrading treatment.” Those were powerful, portentous words. Our people weren’t satisfied with getting by on some technical legal loophole
such as “foreign jurisdiction.” If what we were doing—on its merits—was “torture,” “cruel,” “inhuman,” or “degrading” by the OLC’s 2004 legal standards, then we weren’t going to do it any longer.

The Agency’s posture in this regard did not endear us to the rest of the Bush national security team. A series of testy Principals Committee meetings in the White House Situation Room ensued that summer. Participants such as Condi Rice and Al Gonzales were impatient with John McLaughlin, the acting DCI after George Tenet’s departure. I accompanied John to those meetings, and I was proud of the way he held his ground. A professorial, soft-spoken gentleman in every sense of the term, John had been at the CIA even longer than I, but never in a situation as tense and high-stakes as this one. His message was quietly delivered but insistent: Without a DOJ promise for a fresh set of OLC memos (especially on the “Article 16” issue), then count the CIA out of the EIT business.

The attorney general, John Ashcroft, resisted John’s entreaties, which of course made him and me even more disconcerted. Condi Rice and Al Gonzales got ever more frustrated with us. Secretary of State Colin Powell, for his part, mostly just glowered. He had never hidden his unhappiness about having to attend any meetings on the EIT program, and by now he seemed totally fed up with the Agency in general, angry—understandably, to be sure—that the CIA’s faulty assessments on the Iraq WMD issue had caused this proud and revered public servant to look like a fool in the wake of his high-profile speech at the UN the year before. (Around this time, the CIA analyst assigned to give Powell his daily intelligence update reported back that the normally courtly Powell was growing increasingly surly at these sessions. In the aftermath of the U.N. debacle, his attitude indicated he had trouble believing anything we were telling him.)

Finally, grudgingly, the Principals blinked first in the showdown. Ashcroft agreed that the OLC would prepare a new, updated set of legal memoranda on the EIT program. In the meantime, we agreed to continue administering EITs to new, deserving Al Qaeda candidates coming into CIA custody. We attached one condition: the OLC would have to provide us with advance written legal approval, on a case-by-case basis, for each of the techniques we proposed to employ on each new detainee entering the program. Everyone agreed to proceed on that basis.

And so the specific OLC approvals began coming to us in the summer of 2004. There were four of them, all classified top-secret and signed by Dan Levin, the new acting head of the OLC. Since I was now back as acting general counsel, they were all addressed to me. They were short and to the point, and each contained a boilerplate sentence promising that the OLC would “supply, at a later date, an opinion that explains the basis for this conclusion.” Those longer, detailed OLC legal analyses did not begin arriving until almost a year later, in May 2005, and kept coming until July 2007. Again, they were all addressed to me.

In total, during the course of the EIT program from 2002 through 2007, there would be ten major OLC legal opinions issued to the CIA regarding the program. I was serving as acting GC on each occasion, so my name appears in bold print on top of each and every one. When the Obama administration decided to declassify and release them in April 2009, the media immediately dubbed them “The Torture Memos,” a shorthand term that seems destined to live forever. Some in the blogosphere, in turn, took to referring to me as “The Torture Advocate.”

Some guys have all the luck.

In early fall 2004, Porter Goss arrived at Langley as the new DCI. He had a unique set of credentials that made him seem tailor-made for the job. A longtime Republican congressman from Florida, Porter was fresh off a stint as chairman of the House Intelligence Committee. Moreover, as a young man he had joined the CIA in 1960 and served for the next decade as a clandestine service officer before having to resign because of illness. An independently wealthy conservative, he appeared to have all the right stuff to lead the Agency.

From a distance, he had appeared to be a courteous, low-key guy, but he had been surrounded at the HPSCI by a cadre of ambitious, pugnacious aides who had rubbed many senior career officials at the Agency the wrong way. He brought most of them with him to the Agency—contrary to the private advice he got from Acting Director John McLaughlin—and the word was soon being passed around the halls at Langley that the new director and his team (who quickly acquired the sobriquet “The Gosslings”) were about to start a purge of all Agency executives who had been part of George Tenet’s inner circle.

I assumed that included me, but even if the rumored mass purge did not come to pass, I had no expectation that I would stay in the number one chair in the OGC for very long. After all, Porter didn’t know me, and I figured that surely either he or the White House had someone waiting in the wings to nominate for the general counsel position. A week or so after Porter’s arrival, we had a brief courtesy visit in his office, which was pleasant but uneventful. Up close, he seemed to be as courtly and unassuming as the impression I had gotten from a distance,
and he certainly didn’t appear to fit the stereotype of the backslapping, self-important politician. In fact, my impression was that he was a remarkably shy man. He told me at that first, short meeting that he hadn’t given any thought to who the new general counsel might be, and I believed him.

Within a few weeks, most of George Tenet’s closest associates on the seventh floor had departed from the scene. First to go was George’s handpicked deputy, McLaughlin, followed by Executive Director Buzzy Krongard, Deputy Director for Intelligence Jami Miscik, and the DCI chief of staff, John Moseman. I had developed great admiration for all of them over the previous years, but they were gone, and that was that. A couple of months later, Deputy Director for Operations Steve Kappes was suddenly gone, too, and that was a far noisier parting. Steve, a revered career clandestine service officer, got into a fierce argument with Porter’s newly installed chief of staff, Pat Murray, and abruptly resigned, a move that sent shock waves around the building and dealt Porter’s image inside the CIA a blow from which he never fully recovered.

But as 2005 began, I was still standing as acting general counsel, and there was as yet no replacement on the horizon. So I just plowed forward and did my job. Foremost, that meant trying to keep the best handle I could on the EIT program, which was becoming more complex and controversial by the day.

To that end, I thought it was high time for me to pay a personal visit to the Agency’s black site.

By 2005, the prisons had been up and running for almost three years, and I suppose I could have traveled to see them earlier than I did. But I didn’t consider doing so a burning necessity—from the inception of the program, our lawyers in the CTC had been making regular trips to observe the facilities (the prisons would be periodically moved for security reasons), as well as the EITs as they were being applied to individual detainees. By all of their accounts, the black site, in each of its locations, was operating efficiently, pursuant to the detailed legal and policy guidance being constantly sent by CIA Headquarters.

Still, I decided I should see everything myself, not just to lay eyes on what was happening, but to meet with the interrogators, the guards, and everyone else on site to answer their questions and to offer them assurances
that what they were doing was still fully endorsed by the nation’s highest legal and policy-making officials.

I made trips to two different prisons during 2005. On both occasions, I was part of a small delegation headed by Kyle “Dusty” Foggo, a career CIA administrative support officer whom Porter Goss, to everyone’s surprise, had plucked from the middle ranks to become executive director, the number three job in the Agency hierarchy. Dusty was a controversial, often divisive figure in the career workforce. He could be abrasive, sometimes vindictive, bullying, and crude, and in 2006 he caused himself (and the Agency) considerable grief and humiliation by being indicted for—and subsequently pleading guilty to—federal corruption charges. He fully deserved his ignominious fate—and the three-year prison sentence that came with it—but to me, Dusty was not without certain redeeming qualities. For all his bluster and foibles, I found Dusty to be bright in a “street smart” sort of way, and he clearly loved and was devoted to the Agency and everything it stood for. Plus, he never once got in my way and pretty much left me alone.

What follows here is a composite description of my eyewitness observations and impressions of the two black sites, which were located in two countries in two different parts of the world.

First, however, I should briefly note one difference between the two trips. For my first trip, to a hot and dusty locale, I had packed my usual casual attire, which consisted of a stack of Ralph Lauren polo shirts in a rainbow coalition of colors. I believe I had a pink number on when I came out of the local hotel and climbed into a waiting unmarked vehicle, manned by a couple of hulking armed CIA security escorts, to take me to the prison site. We were going to be driving through neighborhoods frequented by thugs and perhaps terrorist wannabes, so I was grateful to see them.

One of these burly, gun-toting guys took one glance at my pink shirt and suggested, with a tone of ill-concealed scorn, “Sir, why didn’t you just put a bull’s-eye on your back instead?” For the next trip, I stuck to earth tones.

Otherwise, the two visits fell into the same pattern. Upon our arrival in the country, Dusty Foggo and I, accompanied by the local CIA station chief, would pay a requisite courtesy call on the head of the host government’s foreign intelligence service in his office. Over cups of tea
and plates of mysterious-looking local pastries, we would swap awkward small talk with the head of the service while his two or three aides, otherwise silent, would nod or laugh on cue, based on what their boss was saying. The one specific topic that was off-limits was the fact that the host government had agreed to let us build and maintain a prison to hold Al Qaeda’s most notorious operatives. Our host knew full well we were in the country to visit the prison, and we knew he knew that’s why we had come. But neither side broached the subject, at least not in so many words. Over the tea and pastries, Dusty and I would dutifully convey the U.S. Government’s thanks, and the CIA director’s deep appreciation, for the host country’s “courageous contribution” and “invaluable support” to the war against Al Qaeda. Our host would nod benignly.

In each of the two countries we visited, the atmosphere in these courtesy-call sessions seemed stilted and peculiar to me. There we all were, sitting and idly chatting, while media in the United States and around the world were in the midst of tossing around the names of all sorts of countries where CIA “black sites” were supposedly located. Yet there was nothing Dusty and I could offer in the way of explanation. And each time, our host neither said nor seemed to expect more. Then we would say our goodbyes and be on our way, off to visit our secret prison. Our hosts would stay behind. That was because no one from outside the CIA—not even from the local government—was allowed entry to the site.