The Family Jewels (20 page)

This tape review was preliminary to new moves to legitimate the High Value Detainee (HVD) Program. Director Tenet gathered the key players on January 10. Agency General Counsel Scott Muller described recent meetings with White House, NSC, and Justice Department officials, including presidential counsel Alberto Gonzales. Muller also reported McPherson's conclusions from the videotapes. Tenet decided to have them destroyed. In preparation for that, on January 28 he issued directives governing both black prisons and interrogations. Counterterror chief Rodriguez was to be responsible for crafting a plan to destroy the tapes while keeping the congressional oversight committees and White House on board.

On February 4 and 5 James Pavitt led the CIA delegation briefing the Gang of Four. Both Jose Rodriguez and Scott Muller went with him. The meeting record indicates this was the first time Congress was told that aggressive interrogation had been “approved by a bevy of lawyers,” making more of the John Yoo papers than they deserved. For the first time also, Pavitt and Rodriguez admitted CIA had videotapes of detainee interrogations. The agency also notified Congress of the inquisitors' excesses during the interrogation of HVD Nashiri. Rodriguez sat mute as Pavitt spoke disparagingly of the mock execution incident and added he had asked the Inspector General to look into it. (Rodriguez says nothing of this episode in his memoir.) Stanley Moskowitz, CIA's congressional liaison, rejected a bid by the Senate oversight committee to conduct an independent assessment of the HVD Program. Both Zubaydah and Nashiri were described as fonts of useful information. Muller mentioned his comparison of the tapes with records and reported the correspondence was “perfect.” He went on to portray CIA officers as concerned that the tapes might endanger themselves and their families.
Then Muller disclosed that the agency wished to destroy them. Senator Pat Roberts is reported as agreeing with that proposition. On the House side the record is yet to be declassified. Vice-Chairwoman Jane Harman opposed any attempt to get rid of the tapes. Nancy Pelosi, her successor, has said she did the same. Press reports suggest that Porter Goss opposed the move while he was still in Congress, but Jose Rodriguez insists Goss supported the destruction.
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Faced with objections, the CIA dropped its plans for the moment. Counter-Terrorist Center operations continued apace. Early in March the Pakistanis captured the true architect of 9/11, Khalid Sheik Mohammed, and handed him over. Nothing prevented the torture of Mohammed. “Muktar,” as he was known to Al Qaeda, was waterboarded 183 times, exceeding Zubaydah's record.
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All these prisoners were of intense interest to the 9/11 Commission, the blue ribbon panel that Congress demanded and the White House finally accepted, which would make a detailed inquiry into the September 11 attacks. The Commission asked for records of CIA's questioning of the prisoners. Following the marching orders of a White House striving to thwart the inquiry, the agency assured the panel on May 9 that it had handed over everything in its files. Langley made no mention of tapes. In June the Commission came back, asking specifically for any records pertaining to 118 named individuals. Again, no tapes.

Besides the 9/11 Commission there were the agency's own officers to worry about. Some would maintain this was all about tapes, but the true divide was over interrogation methods. Just as the FBI had walked out on Zubaydah over the techniques used by CIA inquisitors—and would do the same at Guantanamo over U.S. military methods—the agency's own officers were restive. In the case of HVD “Captus,” for example, CTC officer Glenn L. Carle, the team leader, was aghast at what headquarters proposed. Carle had done fine utilizing the KU/Bark approach, but CTC wanted
the detainee questioned with strong-arm techniques. Carle cabled Langley to protest. He was given no alternative.
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Torture was illegal. Officers knew it. The tapes were a problem not because some terrorist was going to lay hands on them and chase a CIA family; the real dilemma was that they documented war crimes.

The agency's front office confronted the problem at the director's staff meetings. Tenet determined to seek fresh guarantees. At the White House one day, he asked Condoleezza Rice for a written approval. In mid-June the CIA sent the Justice Department a revised legal approval paper, one drafted at the agency. This was recycled to Langley without change as an opinion of the department's Office of Legal Counsel. The later DOJ investigation of its torture papers found that no one at Justice had originated any part of this “opinion.”
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Langley's new push led to a full-dress White House meeting on July 29. Tenet was worried because his agency and the Bush White House had just clashed over who was responsible for a manipulation of Iraq intelligence that had led to the notorious “16 Words” inserted in the president's 2003 state of the union address that helped justify President Bush's invasion of that country. Now Tenet detailed progress and revisited the aggressive interrogation methods. The agency had set up a new training course for interrogators interviewing HVDs who were compliant. The CTC wanted freedom to mix techniques and less necessity for seeking higher approval. Attorney General Ashcroft confirmed his Justice Department had issued a revised legal memorandum. Vice President Cheney had no objections. Condi Rice saw the interrogations as a CIA show. She was encouraged at the capture of Khalid Sheik Mohammed and Ramzi bin al-Shibh: “It was a bit like having Field Marshal Erwin Rommel, the brilliant and notorious Nazi general, under lock and key in World War II.”
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A few days later CIA dispatched fresh instructions
on the tapes. In early September, for the first time, Director Tenet personally led the agency briefing team that put on a slide show for the Gang of Four defending “enhanced interrogation.” Ten days after that Tenet met with Colin Powell and Don Rumsfeld to coordinate their departments' support for CIA activities.

The agency likes to talk about “operational tempo.” Jose Rodriguez achieved high tempo, and recalls the time after 9/11 as his proudest, officers working flat out, harder than ever, the best cooperation with foreign intelligence services ever, the finest technical support in his experience. Rodriguez felt his hard measures succeeded. But it was also on his watch that the CIA program spiraled out of control. European Community authorities investigated the ghost planes used for renditions; human rights organizations began to track disappearances. Along with rendering real terrorists, the CIA swept up innocents and subjected them to horrors. Even real terrorists were treated in ways that stacked up the flap potential. An Afghan detainee was beaten to death by CIA contract officer David Passaro, who would be tried for it and found guilty.

The Canadian Maher Arar, arrested while transiting Kennedy Airport, was rendered to Syria, where he was tortured without benefit of any of CIA's legal niceties. The Arar case led to deep embarrassment for the Canadian authorities working with the agency, a big cash settlement, the resignation of the head of the Royal Canadian Mounted Police, and a government commission of inquiry that found extensive abuses. Only fancy legal footwork evaded the Canadian's lawsuit directed at CIA. The case of Ibn al-Shaykh al-Libi, tortured by the Egyptians, ended in recantation, forcing an embarrassing CIA retraction of all reporting based on his information. Langley handed al-Libi over to Libya, where
Muammar Gaddafi's intelligence service, a newfound ally that cooperated for a time, kept the man under detention. Al-Libi's mysterious death in a Libyan prison followed.

In February 2003 Jose Rodriguez sent a snatch team into northern Italy to grab a Muslim cleric nicknamed Abu Omar. Egypt was the recipient of the rendition. Omar was tortured. His case led to Italian criminal prosecution of the chief of its own intelligence service along with several subordinates, plus the indictment and trial of CIA's Milan base chief, Robert S. Lady, and two dozen other agency officers or special operations assignees, among them the Rome station chief. This marked the first time in its history that CIA personnel on mission in a friendly country had been subjected to criminal prosecution. They were judged guilty and given sentences of seven to nine years in prison. The verdicts were appealed to Italy's highest court, which heard the case in July 2012. That September the court confirmed the trial verdicts. The operatives are long gone from Italy, but at least one officer's usefulness for clandestine activity has been destroyed, and the Italian legal proceedings embarrassed the CIA at each stage of the process. The headaches from this fiasco multiplied when one of the team, Sabrina DeSousa, sued the United States for not defending her before the Italian courts; in effect, this was CIA throwing its officers to the wolves. That aspect of the Abu Omar affair is also not yet resolved.

Then there was Khaled el-Masri, a German national sequestered by Macedonian security on CIA orders in January 2004. El-Masri's case was pure mistaken identity. Rendered and tortured, he was eventually freed, and the scandal led to a German parliamentary investigation and the near-filing of criminal charges against German intelligence officers who had collaborated with CIA. In the case of Binyam Mohamed, taken in Pakistan soon after Zubaydah, the scandal would blow up in the face of British intelligence. An Ethiopian granted asylum in the United Kingdom, Mohamed was
tortured at Bagram air base and later at Guantanamo. His release was ultimately ordered by British courts specifically on the grounds of mistreatment. The affair led to charges of MI-6 and MI-5 complicity in torture, an official inquiry in the United Kingdom, the judicially compelled release of CIA documents, false statements by the British government in Parliament, and the apparent destruction of British records of rendition flights through Diego Garcia. Equally upsetting for the spooks, Langley was obliged to make an official admission that ghost planes had used Diego twice. Then a lawsuit against a CIA proprietary had to be suppressed by resort to the dubious “state secrets” legal doctrine. At this writing the investigation of British secret service complicity in torture continues, with further embarrassment likely to ensue.

In Poland, where one of the CIA's black prisons had been located near Szymany airport so prisoners could be flown there, the chief of the Polish intelligence service at the time, Zbigniew Siemiatkowski, was indicted in January 2012 for violations of international law by the public prosecutor's office in Krakow. Lescek Miller, then the prime minister, has also been warned he is subject to prosecution by the Polish State Tribunal on related charges. In addition, there have been Lithuanian investigations of officials who cooperated with the CIA on black prisons. European Union inquiries may be reignited as a consequence of developments in these or other cases. From the standpoint of CIA flaps, all these are booby traps waiting to explode. It is probably not surprising that in his memoir of the war on terror, Jose Rodriguez fails even to mention any of these cases. As for cooperation from foreign services, these concrete instances of legal jeopardy as a result of working with American spooks pose a far greater threat to the CIA enterprise—and U.S. national security—than many of the alleged terrorists caught up in the CIA net.

Another flap took place over the 2004 Athens Olympics. The CTC led the American contribution to Olympic security
there. Jose Rodriguez was in and out of Athens before the event. His comment here is “The experience of advising the government of Greece convinced me that I might have a productive and lucrative second career ahead as a consultant.”
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Less than a year later, in what has come to be known as the “Vodaphone scandal,” the Greek press reported that electronic eavesdropping, traced to receivers near the United States embassy, had been employed in Athens. The Greek government not only confirmed this, it revealed the taps had targeted cell phones of the prime minister, other senior government officials, military officers, Arab journalists, antiglobalization activists, businessmen, and even the U.S. embassy itself. Beginning just prior to the Olympics, the eavesdropping continued for six months.

The charges acquired greater precision in 2006. The pot boiled with a parliamentary inquiry. Here there was an investigation by a public prosecutor too, and a secret review by the Greek intelligence agency. By the spring of 2008 the situation had become serious enough to require the intervention of the State Department's top lawyer, John Bellinger, whom Condoleezza Rice had recruited from the NSC when President Bush appointed her secretary of state.
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There is some irony in this: Bush loyalists privately lambasted Bellinger as a softy because he kept open channels to people who were not conservatives, most notably lunching periodically with Lloyd Cutler, former White House counsel under President Jimmy Carter. Now Bellinger's cooperation became necessary to pull the neocons' chestnuts out of the fire. His April 2008 visit was successful. The Greek government graciously excused the United States in the Vodaphone scandal, but the particulars remain highly suspicious.

For Jose Rodriguez's operatives, high operational tempo came with a huge price tag. From early 2003 through mid-2004 there was the constant worry of the Helgerson IG investigation. The inside stories of all the other scandals remain
hidden, but the Abu Omar affair, with its indictments of CIA officers, obviously triggered a flap. Concerns grew about the continued cooperation of foreign intelligence services. By then Porter J. Goss had become CIA director and Rodriguez chief spy, the head of the National Clandestine Service, as the agency's espionage arm has been restyled. Director Goss wanted John Helgerson to look into the Abu Omar episode. Rodriguez convinced Goss to drop any IG inquiry.

The elephant in the room remained the existence of videotapes documenting interrogation sessions. The 9/11 Commission still pressed for information, which George Tenet specifically denied them at a lunch on December 23, 2003. A month later Tenet rejected the Commission's request for direct access to the HVDs. In April 2004 sensitivity attained even higher levels with the revelation of the military's use of torture at Abu Ghraib in Iraq. Jose Rodriguez calls this “an explosive event that added to our conviction that getting rid of the tapes was vitally necessary.”
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That observation puts the lie to CIA claims that its interest in destroying the tapes was purely for the purpose of protecting agency personnel from terrorist counterattacks. The military personnel involved in Abu Ghraib were all court-martialed and imprisoned. The CIA tapes showed identical—and worse—behavior by interrogators. But after Abu Ghraib, “getting rid of the tapes” meant destruction of evidence.