The Family Jewels (42 page)

While the supremely sensitive issue of White House manipulation of the Iraq intelligence remained in play, President Bush still needed the CIA, NSA, and the other agencies to pursue his war on terror. That required smoothing the spies' feathers even while the White House heaped responsibility for the Iraq failure onto their shoulders. George W. Bush did something his predecessors had resisted: when news of the NSA's Terrorist Surveillance Program and the CIA's black prisons burst into public, he stood up to defend these operations and his orders to conduct them. But starting in 2006, when Congress began to zero in on the Family Jewels, the old pattern repeated itself. That September, shortly before President Bush revealed the CIA interrogations and closed the black prisons, the CIA director first briefed the full intelligence committees on the High Value Detainee Program. It was February 2007 when the director, now General Michael V. Hayden, who had moved over from the NSA, focused his congressional briefings on renditions, and that April he was back again to discuss the value of interrogations. In fact, during the fifteen months between Bush's acknowledgment of black prisons and revelation the torture tapes had been destroyed, the CIA met the oversight committees over detainees roughly as many times as it had briefed the Gang of Four during the entire period since 2003—and most of those sessions were led by Hayden personally. The CIA director also issued an extraordinary public statement in February 2007. He insisted the program had been carefully controlled, that fewer than a hundred passed through the system, less than a third of them subjected to aggressive questioning, and only a handful the most extreme techniques.

Langley's attempt to curry the public's favor ended disas
trously on December 6, 2007, when the
New York Times
revealed that the CIA had made videotapes of its interrogations and had now destroyed them.
³⁶
Reporter Mark Mazzetti disclosed that the agency had not told the oversight committees of the tape destruction, that it
had
affirmed to courts—
twice
—that no tapes existed, only to be forced to admit that two videotapes and an audio recording had survived the bonfire. The article also noted that staff of the 9/11 Commission were surprised to learn of the tapes. In the firestorm that followed, there were multiple demands for an investigation, editorials condemning the agency, and warnings to avoid the Iran-Contra error of public hearings with immunized witnesses. New details flooded out—Jose Rodriguez was identified, the kabuki play of the cables between Langley and Bangkok emerged, Gang of Four legislators let it be known they had opposed destruction of the tapes, 9/11 Commission members that they had been denied them. Far from disappearing in a few news cycles, the story of the torture tapes stayed on the front pages through the remainder of George W. Bush's presidency. It was a nightmare both at Langley and the White House.

No evasion was possible. On December 11 General Hayden faced the Senate Intelligence Committee, which grilled him for more than an hour. Hayden proved unable to answer key questions about the tapes and stuck to the unsatisfactory excuse they had been destroyed because they were a security risk, not that they posed prima facie evidence of criminal acts. He asserted that White House lawyers had neither advocated nor opposed destruction. Hayden, of course, had taken up the reins at Langley half a year after the tape bonfire, so his knowledge of the backstory was inadequate at best. The general left Capitol Hill for the White House, where he attended Vice President Dick Cheney's Christmas party. Predictably, the general was accosted by a posse of reporters.
After twenty minutes he managed to get David S. Addington to rescue him—Cheney's man physically pulled Hayden away from the journalists.

White House sources let slip that its lawyers had advised against destruction of the CIA's torture videotapes. They insisted that every activity had been within the law. President Bush said that he had known nothing of the tapes' existence or their destruction until General Hayden told him. Bush took credit for shuttering the black prisons and transferring the CIA's detainees to Guantanamo Bay.

In January 2008 Attorney General Gonzales announced the CIA had lost its permission to waterboard. Bush was prepared to let investigations go forward. Justice Department lawyers and the CIA Inspector General began a joint probe into possible destruction of or tampering with evidence. Attorney General Mukasey rejected demands for the appointment of a special prosecutor for the tapes case, but he did authorize a criminal investigation conducted by assistant U.S. attorney John H. Durham. The unprecedented joint inquiry into the NSA eavesdropping by the inspectors general of several agencies was another element of the Bush administration's sudden openness. The spy agencies, not the White House, would take the heat. Jose Rodriguez retained prominent Washington lawyer Robert W. Bennett as his counsel. Bennett immediately demanded immunity for his client, which shielded Rodriguez from the first round of congressional inquiries but not from Durham's prosecutors.

So began a messy and still largely obscure season of inquest, which dragged on into the Obama administration. The Bush Justice Department used its probe to head off the obstruction of justice investigation ordered by the federal court that had been denied evidence. 9/11 Commission staff examined their files and confirmed the CIA had misled them regarding tapes. The congressional oversight committees had their own inquiries, the results of which have never been
made public. Agency general counsel John A. Rizzo faced the House intelligence committee all by himself. When a heavily excised version of the CIA Inspector General's report on interrogation was declassified as the result of an FOIA request and subsequent lawsuit, the agency started a counterintelligence investigation against its own internal watchdog. Michael Hayden was responsible for that. Another feature would be Vice President Cheney's repeated declarations that torture had been necessary and had saved lives. Prosecutor Durham ground away on his own criminal probe and eventually convened a grand jury to continue it.

The waters were thoroughly muddied by all this to-ing and fro-ing. By the time the Bush administration gave way to the presidency of Barack Obama, pressure had built for a public examination, a “truth commission” exploring all the CIA abuses of the war on terror. Barack Obama's administration has avoided airing this laundry, still moldering in the hamper. President Obama issued an immediate order to terminate all “enhanced interrogation,” and he decided to release a set of key documents bearing on the controversy, including the Justice Department legal authority papers, the subsequent professional reviews of those papers, and a fuller version of the CIA Inspector General's report. Obama took that action over the threatened resignation of his own CIA director.

In May 2009 the Senate Judiciary Committee held a hearing on the need for a truth commission and another on the interrogations themselves. A group of former CIA chiefs contributed a joint letter opposing any such inquiry. In November 2010 Attorney General Eric Holder declared he would not seek indictments of CIA officers in the tape destruction, though prosecutor Durham continued investigating whether unauthorized methods had been used on prisoners, particularly during the period before the Yoo memos existed, when the questioning of Abu Zubaydah had already begun. The following summer Holder announced that two
criminal investigations would be pursued and the remainder closed. In 2012 the last remaining criminal inquiries were also dropped. An accounting for the Bush-era excesses has been lacking. The administration may have suffered in the court of public opinion, but no senior official has been held accountable.

“I have been troubled,” George W. Bush would write in his memoir, “by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs.”
³⁷
The Central Intelligence Agency is still in the crosshairs. Dick Cheney may have demanded enhanced interrogation techniques, and repeatedly visited Langley to push for more results, but it was CIA officers and contract employees who did the waterboarding, turned up the cold, and held the mock executions. Agency senior officers ordered the destruction of evidence, and subordinates carried that out. It was CIA and special operations people who entered various countries to capture or kidnap individuals, and proprietary aircrews who “rendered” prisoners to a succession of black prisons and finally relocated them to Guantanamo Bay. The agency's officials approved kill orders for targeted individuals, and CIA drones carried out the attacks—until the program became so massive the military got into the act too. At this writing, among participants in the CIA rendition and torture program the only one sent to prison was John Kiriakou—the whistleblower—and not for his actions but for challenging the fortress of secrecy.

Mr. Bush deplores the criminalizing of differences of legal opinion, and the deleterious effect that had on intelligence officers, as if these were merely honest differences, and only about opinion, not people's lives and America's standing in the world. Right behind him are Justice Department lawyers, who insist they did nothing more than furnish opinions on statutes and legal principles. The truth is that those who rendered the opinions were less concerned with principle than
with permissiveness, finding rationalizations for what they knew the administration wanted to do. America's currency in international relations was at stake, and the legal memoranda were loaded guns aimed directly at it. The abuses also went far beyond those of interrogation or surveillance, to encompass infringements on the sovereign rights of allies and the inducement of those allies into complicity. That individuals were tortured and died—not just at the hands of Americans—only adds to the tally of shame. When the Family Jewels are exhibited, the CIA will suffer and American intelligence capability will be diminished. Assets important to the survival of the nation will be affected. But on the day when the wagons circle again, no doubt there will be great concern to protect George W. Bush, Richard Cheney, and their successors. White House prerogatives always win through.

10

CLARITY

We have learned a great deal from studying the Family Jewels. Not simply the documents of the Year of Intelligence, but the entire period since. The lessons can be jarring and the history is often not pretty, but for the sake of control of secret entities in a free democracy and proper accountability for political authorities, they must be faced squarely. Anything less cheapens the coin of the republic and weakens the constitutional framework that was created to ensure liberty and justice for all. All citizens become victims, perhaps less obviously than those whose lives were taken by secret warriors, or crumpled by overzealous inquisitors, or oppressed by hidden surveillance, but victims nonetheless. Democracy is protected only by the vigilance that detects abuse and the courage to stand for real principles. The place to begin is to look at what actually happened—as has been established by this historical inquiry.

In the first place, it is time to dispense with the fiction that the Central Intelligence Agency, the National Security Agency, and their confederates ran around like “rogue elephants.” That cute turn of phrase got Frank Church a lot of headlines, but it was ill considered and created more
misunderstanding than enlightenment. Intelligence agencies operated under presidential control at all times. That does not mean that presidents explicitly ordered everything the agencies did, or that they knew everything the spooks were up to. Neither Lyndon Johnson nor Richard Nixon ever put his name to a directive ordering the CIA or NSA to watch political protesters. Rather, they made clear what they
wanted
—to discover their opponents and the opposition's ties to others. Ronald Reagan declared the
contras
needed to be supported body and soul. Agencies
interpreted
presidential desires. It was a process of triangulation. Some presidents did issue orders. George W. Bush is a case in point with his Terrorist Surveillance Program.

What agencies
did
with desires and orders was something from which presidents were frequently shielded. Intelligence operatives preserved the chief executive's deniability specifically by
not
informing the White House of some of their activities. There is no evidence that President Johnson knew of Project Chaos or CIA mail-opening. The same is true for Richard Nixon, who in over four thousand hours of unguarded conversation recorded on his audiotapes never once referred to CIA surveillance or mail-opening—at least in the declassified portions of those tapes. Gerald R. Ford, late on the scene, seems to have been surprised to learn of the various Family Jewels that ignited the Year of Intelligence. The evidence is that Ronald Reagan knew things were being done to help the
contras
and that he participated in the solicitation of Saudi Arabia, but no one, including the Iran-Contra independent prosecutor, could establish that he had direct knowledge, and even more certainly not of the diversion of Iranian money to the
contras
. To judge from what has been disclosed so far about the 2004 fracas over reauthorization of the TSP, George Bush similarly did not know of the aspects that so concerned the Department of Justice and FBI.

Management and control of intelligence activities,
however, remained a presidential priority. The trick was to accomplish that without assuming direct responsibility. Just as the NSC Special Group served to insulate presidents from covert operations, chief executives typically had some designated person to go between them and the agencies on the things that would become Family Jewels. Frequently that individual was the national security advisor. McGeorge Bundy's comment on the Castro assassination plots—that he would be surprised had the CIA gone ahead without consulting him—gives the flavor. Henry Kissinger certainly played that role in the Nixon-Ford administrations. Jerry Ford turned to Richard Cheney to supervise efforts to control the fallout from the Year of Intelligence. Vice Admiral John Poindexter in conjunction with a CIA chief, Bill Casey, were the managers of Iran-Contra. Cheney reappeared, in his guise as vice president, as George W. Bush's manager for the activities on the dark side of his watch.