INTRODUCTION The Tale of the “Torture” Tapes
In early November 2010, the Justice Department announced its decision not to bring obstruction-of-justice charges against the CIA officials who had been involved in the decision, five years earlier, to destroy videotapes depicting the Agency’s 2002 interrogation of an Al Qaeda operative named Abu Zubaydah. He was not just any terrorist thug. Zubaydah was a senior figure in the Al Qaeda hierarchy at the time of the 9/11 terrorist attacks, and he had been the CIA’s first significant “catch” in the post-9/11 era. As such, he was also the first high-level Osama bin Laden lieutenant to be spirited off to one of the Agency’s newly constructed covert detention facilities—what would come to be infamously known around the world as “the CIA’s secret prisons.” Zubaydah had another dubious distinction: He was the first CIA detainee ever to be waterboarded. The CIA had captured it all on videotape. Three years later, the Agency burned the tapes.
The Justice Department criminal investigation into the tapes’ destruction, which lasted almost three years, was led by John Durham, a career federal prosecutor from Connecticut brought in specifically for the task. He was appointed in December 2007, shortly after the New York Times broke the story in a series of page 1 articles by Mark Mazzetti and Scott Shane. The series ignited an immediate firestorm in the media and Congress. As the Times accurately reported, no one in the CIA had ever told anyone in Congress that it had destroyed the tapes.
It was a hell of a story about a hell of a mess. And I knew it better than anyone, since I was the only member of the CIA’s top leadership to have been part of the episode from the beginning to just about its end. I was the Agency’s chief legal advisor for most of the eight years encompassing
the story. The tale of the tapes’ destruction and its aftermath bedeviled me right up to the time of my retirement from the CIA in December 2009, after more than thirty years of service. The saga ended for me only when Justice announced there would be no indictments.
For the first three years, I fended off repeated entreaties from my Agency colleagues that I approve destroying the tapes, only to have them go behind my back and destroy them anyway in 2005. Then, after the story exploded in the media, I was the only CIA official to be hauled before Congress and grilled—alone—by two dozen angry lawmakers. Two years later, in September 2009, I had to testify for seven hours before a grand jury convened by the prosecutor, Durham.
The case was still hanging over me when I left the Agency for good two months later. In a long career fraught with dealing with controversies, it was the final one, and it was unfinished business. And so I could not drift gently, at long last, into a peaceful retirement. Would I be called back to testify before Congress? Before the grand jury? Would I be prosecuted for something I said, or something I did, somewhere along the way?
The November 2010 Justice Department announcement that there would be no indictments brought me a mixed range of emotions. First, of course, I felt a huge sense of belated relief. At the same time, it seemed oddly anticlimactic—by November 2010, the tapes’ destruction was old news, a distant if unpleasant memory.
Finally, it all struck me as very ironic. The entire affair, long and tortuous as it turned out to be, had begun for me way back at a time when I thought I was getting out of the line of fire at the CIA.
In October 2002, my nearly one-year tour of duty as acting general counsel was coming to a close. The Senate had just confirmed Scott Muller as the new CIA general counsel.
By this time, twenty-five years into my CIA career, I had “broken in” a number of incoming general counsels, so I had the drill down pat: The Office of the General Counsel (OGC) staff prepared briefing books containing summaries of key classified policy and legal documents as well as ongoing programs (per standard procedure, no incoming GC had access to classified information before reporting for duty), and I put together a list of the “hot” items that the new guy would have to confront the day he arrived on the job.
I felt a profound sense of relief about passing the Agency’s legal baton. Barely a year after 9/11, I could have put fifty items on the “hot” list. It seemed like every day we were facing a new, imminent Al Qaeda threat. And we had been operating in an entirely new and perilous legal terrain, capturing, brutally interrogating, and conducting lethal operations against senior Al Qaeda figures. I didn’t want Scott totally overwhelmed on his first day of work, so I was determined to keep the list short.
A couple of weeks before he arrived in November 2002, however, I learned about something I had no choice but to add to the list. Three months earlier, CIA officers, in a secret Agency detention facility overseas, began videotaping the first top Al Qaeda operative in our custody. He was also the first terrorist subjected to the Agency’s Enhanced Interrogation Techniques (EITs). The sessions were captured on the tapes, apparently in graphic detail. Jose Rodriguez, the chief of our Counterterrorist Center (CTC), came to me seeking permission to destroy the tapes. Immediately.
The story began in March 2002, when the CIA and its Pakistani counterparts, with a combination of meticulous intelligence work and good luck, captured a senior Al Qaeda operative named Abu Zubaydah in Pakistan’s third-largest city, Faisalabad. It didn’t come off quietly—there was a furious gun battle, and Zubaydah was shot three times. The Agency rushed a team of doctors from Johns Hopkins to Pakistan to save his life. It was hardly a humanitarian gesture; our intelligence indicated that Zubaydah was Al Qaeda’s main logistics planner for attacks against the United States. The CIA was desperate to keep him alive in order to find out what he knew about any upcoming attacks. This was barely six months after 9/11, and the government was still seized with dread about another horrific strike coming any day.
Zubaydah pulled through, and as soon as the doctors determined he was well enough to travel, he was whisked from Pakistan to the first of a succession of overseas detention facilities that would eventually enter into the public lexicon as “black sites” or “secret prisons.” Zubaydah, a young, smart, cold-blooded, unrepentant psychopath, was the first really “big fish” the Agency had caught post-9/11. Soon after the questioning began, CIA inquisitors became convinced, based on his smug and arrogant responses, that he knew a lot more than he was telling about Al Qaeda’s terrorist plans. By early April 2002, the Agency, lacking other options
and desperate to stop another cataclysmic attack, made the fateful decision to explore tougher methods to try to get Zubaydah to talk. This was how the “enhanced interrogation program” came to be, along with yet another word soon to enter the public lexicon: waterboarding.
Later in the book I will provide an eyewitness narrative of the period from April through July 2002, when the Agency conceived the EIT program, which I shepherded through policy review at the White House and legal review at the Justice Department. This process culminated on August 1, when the Justice Department issued to me the first of what would come to be known infamously as the “torture memos,” which legally approved waterboarding and other brutal interrogation tactics against Zubaydah. After I received the Justice memo, the waterboarding of Zubaydah began, with my knowledge and concurrence.
What I didn’t know then and wouldn’t know until two months later was the decision—I could never determine whether someone at CIA Headquarters or in the field with Zubaydah came up with the idea—to videotape Zubaydah around the clock while he was in custody, including periods of interrogation. When he first told me about the videotaping in October 2002, Jose offered two reasons. First, our people at the interrogation site wanted to make sure everything Zubaydah said was recorded and preserved. They were taking careful and copious contemporaneous notes, which were duly transcribed in cables sent back to CIA Headquarters every day, but they were terrified they might miss something. It’s important to note here that, prior to 9/11, the CIA had never in my quarter-century experience held and questioned anyone incommunicado. In a popular culture steeped with films, TV shows, and potboiler spy novels portraying the CIA as a no-holds-barred instrument of mayhem, this may be hard for an outsider to believe. But it’s true. The videotaping was seen not just as a reference tool but as a security blanket.
The other reason Jose gave me for the decision to videotape Zubaydah was more basic: His people didn’t want the SOB to die on them. CIA medical personnel at the detention facility monitored Zubaydah round the clock, but he was about to face some very tough interrogation in the most solitary of confinements. If Zubaydah were to die in captivity, who would believe—either inside or outside the CIA—that they weren’t to blame? Videotaping Zubaydah in captivity would cover their asses.
After several days of taping, however, everyone who had bought into
the idea looked at the videotapes, compared them with the notes transcribed and forwarded to headquarters, and concluded that the notes captured everything Zubaydah was saying. In fact, the notes were better; Zubaydah’s voice was occasionally inaudible on the recordings, but the interrogators had been able to get down most everything he was saying. Besides that, Zubaydah had recovered from his wounds and was exhibiting no desire to journey to the afterlife—even with the seventy-two virgins presumably awaiting his arrival—anytime soon. The hundred or so hours of videotapes were packed up and stored at the detention facility.
But Jose’s sudden desire that October to destroy the tapes was not spurred by an urgent need to eliminate unnecessary clutter. It was based on what the tapes showed.
The round-the-clock videotaping had lasted only a few days in August 2002 before it was stopped, and the bulk of it recorded Zubaydah alone in his cell, either saying prayers, sleeping, reading, or otherwise—um—entertaining himself. The rest of the tapes showed the interrogation sessions, and Jose assured me that the scenes of Zubaydah being waterboarded, comprising only a small portion of the tapes, were uncensored, and everything had followed the guidelines formulated by CIA Headquarters and approved by the Justice Department in its August 1 top-secret memorandum to me (the so-called torture memo). That was his good news. His bad news was that the scenes were “tough to watch” and, more to the point, clearly showed the faces of the CIA employees and contractors on the scene.
Jose was convinced that someday, somewhere, somehow, the tapes would become public and the identities of the interrogators inevitably “outed.” “Sixty Minutes will do slow-mo, stop-action pictures of their faces,” Jose emotionally put it to me, “and they and their families will become targets for some Al Qaeda crazy wherever they are.”
I had known Jose for over a decade, and I had no reason to doubt his sincerity or his word. A short, dark man in his late forties whose voice carried the lilt of his upbringing in Puerto Rico, Jose (who had a law degree) could be fiery and over the top rhetorically at times, but I always found him to be honest, straightforward, and utterly without guile—traits I suspect the public would not normally ascribe to a longtime CIA operative. He was an honorable, decent guy, and I considered him a friend. I still do.
I also didn’t think at the time that Jose and his colleagues were being paranoid in fearing that the tapes would someday be made public. If all my years and experience at the CIA taught me anything, it’s that virtually every secret doesn’t stay secret forever, and that the shelf life of new secrets is getting shorter all the time. As I write this today, consider all that happened in the eight years since I first learned about the tapes: the steady stream of media leaks about “secret prisons” and “waterboarding”; the ensuing drumbeat of outrage from elements of Congress, pundits, and the academic community as the shock and horror of 9/11 receded into history; and finally, a new president and his attorney general who publicly repudiated and voluntarily declassified virtually every detail of the CIA’s interrogation program. If those tapes were still in existence, what do you suppose are the chances they would now be in the public domain? Somewhere between probably and slam-dunk.
But that is now, and this was then. Although I sympathized with Jose’s motivations, I thought destroying the tapes was fraught with enormous risk for the Agency. Any minimally competent attorney would instinctively react the same way if his client were to come to him seeking the go-ahead to destroy sensitive materials in his possession, even if the client was not under any cloud of suspicion or investigation. Someone does something like that when he has something to hide.
And the tapes, obviously, were not ordinary material. Given who Zubaydah was, and given why it was considered so critical to get him to talk, a Congress and a nation still shell-shocked by 9/11 might have understood and even supported such tactics. Indeed, only a month earlier, in September 2002, the bipartisan leadership of Congress (the so-called Gang of 8) had been briefed by the CIA on the newly approved techniques, including waterboarding, and expressed no concern whatsoever. But to have this disturbing stuff captured on videotape, and then to destroy it without telling anyone . . . I mean, Jesus. I trusted Jose and believed his assurances that everything on the tapes was within the approved guidelines, but once they were gone, and once someone on the outside inevitably found out about the tapes and what had happened to them, who was going to accept those assurances at face value?
So that was the big turd dumped on my desk shortly before the arrival of the new general counsel. “Who else in senior management knows about the tapes and what you want to do with them?” I asked Jose. “What
about Pavitt?,” referring to his superior, Jim Pavitt, the head of CIA covert operations.
“Pavitt knows, and he’s ready to authorize the destruction, but he said I needed to get your okay,” Jose responded.
“Where is George Tenet on this?” I then asked as calmly as I could, referring to the CIA director.
“I don’t know. I haven’t spoken to him about it.”
I informed Jose that he was not to do anything with those tapes. Not then, and not until further notice. I needed to talk about this with the new general counsel.
Poor Scott Muller, I thought. Here he was coming in from private life, with a totally blank slate, and now I had to firehose him not only on a counterterrorist program of an unprecedented scope and nature, but also, by the way, on an urgent request to destroy hair-raising evidence about the program. I was hoping he wouldn’t quickly conclude he was joining an organization, and inheriting a deputy, who were completely crazy.
Thankfully, Scott proved to be a quick study and not easily rattled. He agreed that precipitously destroying the tapes was a terrible idea. At the same time, after hearing out Jose and Jim Pavitt, he came to the same conclusion I had: These were honorable men whose deep concerns about the security risks the tapes posed to the interrogators were genuine. Absent some legal requirement that the tapes had to be preserved forever, Scott and I were not prepared to simply rule out ever destroying them. As we put it to Director Tenet in late December 2002 (Scott insisted that we deliver the message together), “the question is not whether to destroy the tapes, but when.”
First, we decided, a CIA lawyer had to review every minute of the tapes, but it had to be someone with no connection to the interrogation program who could look at them with no preconceived notions or stake about what was on them. We settled on John McPherson, one of our most experienced lawyers, and the chief of the CIA’s Litigation Division. He was someone I knew to be disciplined, thorough, and unflappable. John had had no prior role, or even any knowledge of, the interrogation program, but we thought it made sense to bring him into the loop, given the certainty that the program would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come.
In the days after Christmas 2002, John traveled to the country where Zubaydah had been held and where the sole set of tapes in existence was under zealous guard in the local CIA office. By this time, Zubaydah had been moved to a new detention facility in another part of the world. But the last thing we needed was to have the damn things get somehow lost or damaged in transit.
John methodically plowed through the roughly hundred hours of videotape, each tape recording a day’s work of interrogation. Ninety-six of the videotapes were recordings of the Zubaydah sessions. (There were also recordings of the interrogation of Abd al-Rahim al-Nashiri, a key perpetrator of the October 2000 bombing of the USS Cole. He was captured in October 2002 and taped only briefly before the CTC halted all videotaping.) Much of the ninety-six tapes depicted Zubaydah simply being questioned or sitting alone in his cell, so John skimmed those parts. But he painstakingly watched the segments where EITs were being applied. He compared everything that the interrogators said and did, and everything Zubaydah said and did, with the daily reports the interrogators sent back to CIA Headquarters. He particularly focused on the waterboarding sessions.
After three days, John was done. His conclusions, contained in a written report, boiled down to this: The reports were accurate and complete, and the interrogators had done nothing to Zubaydah that was outside the guidelines or not described in the reports. But when he returned home I made sure to ask him about two things he hadn’t covered in his written findings. Were the faces of the interrogators visible? “Clear as day, and over and over again,” he replied in his usual just-the-facts way. And what about Zubaydah, when he was being waterboarded? “Up close and personal. Some crying. Some gagging. Just very unpleasant to look at.”
No wonder Jose wants them to be destroyed, I thought.
By comparison, the next item on our to-do list was easy: telling Congress about the existence of the tapes and why the Agency intended to destroy them as soon as feasible. Scott was part of the team dispatched in late January 2003 to brief Senators Pat Roberts and Jay Rockefeller, the leaders of the Senate Intelligence Committee, and their House counterparts, Porter Goss and Jane Harman. Their reactions, as Scott later reported to me, were typical of those of congressional leaders in any dicey, sensitive briefing I had ever participated in or heard about in my
years at the CIA. They sat there, clearly uncomfortable, said little if anything in response to what they were being force-fed, with a “Why are you telling me this?” look frozen on their faces, and gave every impression of wanting desperately to get the hell out of the room.
In fairness, I should note that shortly thereafter Jane Harman did send a letter to the CIA expressing concern about the wisdom of destroying the tapes. Otherwise, none of the leaders ever followed up about the issue until the story leaked to the media almost five years later.
Still, even with our lawyer’s report in hand and the congressional notification box checked, Scott and I weren’t prepared to green-light the destruction. Far from it. In 2003, several internal and external investigations were under way in which the tapes were potentially relevant, and we had to see how each would play out.
Early that year, CIA inspector general John Helgerson began a review of the still-unfolding interrogation program. We told Helgerson about the tapes, and he wanted his people to look at them. Helgerson’s office was already in the midst of a major investigation into the CIA’s failure to uncover and prevent the 9/11 attacks, and the CTC was the focus of the investigation. The tension between the two offices within the CIA was palpable. What’s more, Helgerson, an Agency veteran of more than three decades, had expressed to me misgivings about the wisdom and morality of the interrogation program. But I had developed great respect for him over the years as professional and fair-minded. I don’t recall anyone expressing any objection to giving the IG access to the tapes, and a couple of Helgerson’s investigators reviewed all of them sometime in 2003. In its report on the interrogation program issued in May 2004, the Office of the Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC’s numbers on how many waterboarding sessions were conducted, did not find that any unauthorized techniques were used on Zubaydah.
The IG report was sent to the two intelligence committees shortly after its completion in May 2004 for review by the committees’ leadership. None of the four leaders would ever ask to look at the tapes. None of them ever inquired about their status, even though the CIA had put them on notice more than a year earlier that the Agency intended to destroy the tapes at some point. None of them ever asked anything about
the tapes. Not, that is, until the shit hit the fan years later, courtesy of the New York Times.
Concurrently with the OIG review, the presidentially mandated 9/11 Commission got under way. Its charter was markedly different from the OIG review: It was conducting a comprehensive postmortem on the events, and the U.S. Government’s actions, in the years leading up to the 9/11 attacks. It was not the 9/11 Commission’s mandate to look into the measures the government took, such as the interrogation program, in response to the attacks.
The 565-page final report the commission issued in late 2004 relied heavily on the CIA-prepared accounts of Abu Zubaydah and several other key Al Qaeda figures (including the self-proclaimed 9/11 mastermind, Khalid Sheikh Mohammed [KSM]) the CIA had in its custody by 2003. The commission staff, led by a very aggressive former federal prosecutor named Dieter Snell, pressed the Agency hard for access to the detainees so they could pose their own questions to them. I could understand why; after all, our interrogators were most focused on Al Qaeda plans and actions post-9/11, not before.
Nonetheless, the Agency strongly opposed the idea, and we didn’t budge. First, the foreign location of the “black site” was a zealously guarded secret; outside the Agency, fewer than a dozen people in the entire government knew where it was (indeed, to this day it is one of the very few details about the interrogation program that remains classified). The foreign government hosts, in allowing the CIA to build its detention facility, insisted that only CIA personnel could have access to it; they themselves stayed away. Second, our psychologists and analysts studying the detainees argued against introducing any new interlocutors on the scene beyond the handful already there. They feared that diabolical but cagey manipulators like Zubaydah and KSM would seize the opportunity to posture, prevaricate, and rupture the flow of the ongoing interrogations.
Finally, the 9/11 Commission leadership grudgingly agreed to a compromise: Their staffers could submit their questions in writing and the CIA interrogators would sprinkle them into their regular sessions with the detainees as unobtrusively as possible.
For months, the commission also bombarded the Agency with a relentless volley of requests for thousands of documents, and the CIA
provided mostly all of them. We scoured all of the requests, provided in writing and in specific detail by the commission staff. They knew exactly what they wanted, and they took pains to spell it out. They never asked us if we had any videotapes of the detainees. If they had, we would have told them the truth.
Instead of parsing literally every word in each of the commission’s requests, should we have taken the initiative to tell the commission about the existence of the videotapes? In hindsight, I think the answer is clearly “Yes.”
Volunteering their existence would have prompted the commission to ask to look at them. But then we could have just said “No.” Just as we did when they wanted access to the detainees, and just as we did when the commission wanted a briefing on the EIT program. Both times the commission backed down.
The commission’s co-chairs, Lee Hamilton and Tom Kean, were serious, substantial men. They were consistently fair and trustworthy in their dealings with the Agency. We could have told them, and them alone, about the tapes and why we couldn’t give the commission access to them. We didn’t. Big mistake, as things turned out.
The third matter to come along in 2003 that argued against destroying the tapes was the criminal prosecution of Zacarias Moussaoui, a malignant but spectacularly inept Al Qaeda operative who had been arrested in Minneapolis about a month before 9/11. Moussaoui, who proved to be as unhinged as Zubaydah but nowhere near as capable, had managed to draw attention to himself by seeking lessons in Texas and Minnesota flight training schools and by loudly insisting on instructions on how to fly a 747, but not how to take off or land one. The 9/11 Commission would ultimately conclude that he had been dispatched to the United States by Al Qaeda as part of the original roster of hijackers. For two years, he had been sitting in jail awaiting trial for his role in the conspiracy, and the case was now beginning in federal district court in Alexandria, Virginia. Although Zubaydah’s interrogation did not appear to yield anything that would bear on Moussaoui’s case, there was no way of knowing which way the frequently chaotic proceedings would go. We weren’t going to do anything that might sabotage the only 9/11 criminal case the government had going.
And so, with all these investigative balls in the air, as 2003 turned to
2004, it fell to me to tell Jose and his people that any decision to destroy the tapes would have to wait.
“How much longer?” they would periodically ask, politely but persistently.
“I don’t know,” I would respond each time, “but don’t hold your breath.” I had spent my entire career hand-holding anxious CIA operatives who were upset or frustrated by one thing or another, and I thought I had gotten pretty good at the art of assuaging. Looking back at that period now, however, I clearly misjudged the depth of angst and impatience.
And it was only going to get worse in the months to follow.
By mid-2004, the OIG had completed its report, and Helgerson told me that as far as he was concerned, the fate of the tapes was now a “policy call” for senior CIA management. The 9/11 Commission had also wrapped up its investigation, and we still hadn’t seen, in their many requests for materials, anything that implicated the tapes. The Moussaoui prosecution was still careering along, however, with the defendant shouting daily epithets in court at the judge and the prosecutors when he wasn’t trying to fire his capable but besieged court-appointed lawyers.
But that was no longer the only roadblock to destroying the tapes. During that summer, George Tenet resigned as CIA director. George had known about the existence of the tapes—and Jose’s strong desire to destroy them—for about as long as I did. My sense had always been that he would have been happy to see the issue somehow go away, but that he didn’t want his fingerprints on any decision to destroy them. Jim Pavitt and Scott Muller also left the Agency about the same time. None of the departures had anything directly to do with the simmering internal controversy over the tapes: Tenet was leaving after seven grueling years as director, the second-longest tenure ever; Pavitt was retiring after a long and successful career in our clandestine service; and Muller was simply exhausted and burned out after eighteen months in a job that, post-9/11, was way more politically pressurized than he, or anyone else, for that matter, could have imagined.
Still, I couldn’t help suspecting that none of them was unhappy about not being in the chain of command when the legal impediments were gone and a decision had to be made whether or not to destroy the tapes. Tenet, Pavitt, and Muller were no longer at the CIA, but the tapes were.
About a month before he left, Scott got the White House into the act. The catalyst was the Iraq/Abu Ghraib scandal, which had exploded into the nation’s consciousness several weeks earlier with the release of repulsive photographs of U.S. military prison guards tormenting Iraqis in their custody. The photographs sparked a national outrage, and the White House was in major political damage-control mode.
Early in the Bush administration, a process was established whereby Scott Muller or I, or both of us, would travel to the White House every month to meet with the president’s counsel, Alberto Gonzales; the vice president’s counsel, David Addington; and the national security advisor’s counsel, John Bellinger. The meetings were held in Gonzales’s West Wing office, and they were intended as a way for us to discreetly alert and update the White House about CIA legal matters that weren’t already being covered in the larger interagency lawyers’ group meetings the White House was frequently convening post-9/11. When the scheduled June 2004 meeting took place, I had a scheduling conflict, so Scott took with him Bob Eatinger, our senior lawyer for counterterrorism matters.
As far as I know, no one in the White House at that time had been told about the existence of the tapes. It was not a matter of hiding them. Instead, our thinking at the CIA was that the time was not yet ripe: The tapes were being safeguarded thousands of miles away, their destruction was on indefinite hold, and there was nothing we were asking the White House to do. In short, up to that point we didn’t think the White House had a “need to know,” the classic litmus test in the intelligence business.
Abu Ghraib changed that calculation, even though that debacle had little to do with the CIA. As Scott later explained it, John Bellinger, in the context of a discussion of the Abu Ghraib photos, asked him an open-ended question in the meeting, along the lines of “the Agency doesn’t take any pictures of its detainees, does it?” I suspect he was assuming/hoping that the question was rhetorical, but Scott decided on the spot, correctly in my view, that the time had come to tell Gonzales, Addington, and Bellinger not only that the tapes existed, but also that the CIA planned to destroy them at some point. Their reaction was immediate and unanimous: “You plan to do what?”
The fact was that we CIA lawyers would never have taken the ultimate step to destroy the tapes without first clearing it with the White House.
Not as long as I had anything to say about it. Here, the White House lawyers weighed in sooner than they really needed to, but their reaction wasn’t exactly surprising. “Don’t do anything with those tapes without coming back to us first,” they admonished Scott.
“No problems there, fella,” I told Scott when he relayed that message back to me. Then, a few weeks later, he resigned. I was acting general counsel. Again.
Porter Goss was confirmed as the new CIA director in the fall of 2004. A longtime congressman from Florida, he gave up a seat in a safe district to take the DCI job. Porter had been a young CIA officer for a number of years in the ’60s before resigning to get into local politics. He was always interested in intelligence issues, and during his final years in Congress he chaired the House Permanent Select Committee on Intelligence (HPSCI).
In our first meeting I went through a list of matters that I thought he would need to focus on soon. It wasn’t a long list, but the status of the tapes was on it. Porter, unlike his predecessor, is not a very demonstrative man, but when I mentioned the tapes he clearly seemed taken aback. “The tapes are still around?” he asked with quiet incredulity. “I thought you guys told us you were going to destroy them.”
It was then my turn to be taken aback, until I quickly realized that Porter was referring to the briefings the Agency gave him and the other congressional intelligence leaders in early 2003 about the existence of the tapes and our intent to destroy them at some point. “Uh, no, sir, they are still around,” I responded as matter-of-factly as I could. Porter seemed mildly disconcerted at hearing this. Understandably. The hot potato was now on his plate.
Several weeks later, Porter promoted Jose Rodriguez to the position of deputy CIA director for operations, Jim Pavitt’s former job. What’s more, Jose installed as his chief of staff an officer from the Counterterrorist Center who had previously run the interrogation program. Between them, they were the staunchest advocates inside the building for destroying the tapes.
They were now in a position to lobby the director directly. Yet I never had any indication they did so. Instead, they continued to come to me, persistently pressing their case. In June 2004, Jose had been upset to
learn of the White House objections, and I could tell he was becoming more frustrated as the months went by.
As 2004 turned to 2005, it was increasingly apparent that the “right” time to destroy the tapes was nowhere in sight. The Moussaoui prosecution seemed to be dragging on forever; and in the meantime, another court case was presenting another potential complication. The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act lawsuit seeking disclosure of all Bush administration materials relating to terrorist detainee policies and practices. As in the Moussaoui case, the tapes had not yet been implicated in the court proceedings, but the possibility remained that they could be. Until both cases sorted themselves out, destroying the tapes was out of the question.
But even if the court cases somehow went away, I knew that there were powerful voices inside the administration weighing in against destruction. John Negroponte, the highly respected career diplomat appointed the first director of national intelligence (DNI) in late 2004, was briefed on the tapes by Director Goss in mid-2005. Shortly after the briefing, Negroponte sent word back to the Agency (and as DNI, he basically was the CIA’s boss) that he was strongly opposed to destruction under any circumstances. This was on top of the White House lawyers’ objections from the year before.
Nonetheless, Jose and his chief of staff kept coming to me. On the edges of meetings on other subjects, in the hallways, they would raise the subject almost every week. And then, when Al Gonzales left his White House counsel position in March 2005 to become attorney general, they began lobbying me to revisit the issue with the new White House counsel, Harriet Miers, in the hope that she might not have the same deep reservations about destruction that Gonzales and the other White House lawyers expressed to Scott Muller in June 2004. At first, I put off Jose and his chief of staff by saying that we shouldn’t be hitting Miers, who had no previous experience in CIA matters, with a thing like this so early in her tenure. I promised them that I would talk to her about it at some point; at the same time, I told them that I didn’t think she would like the idea of destruction any more than Gonzales did. In any case, I figured she ought to be apprised of the tapes and assumed (accurately, as it turned out) that her predecessor hadn’t told her anything about them.
In May 2005, I told Porter Goss about Jose’s relentless queries and
said I thought it was time to bring Miers into the loop. By this time, I had attended two meetings with Porter where CTC representatives, as a part of their regular updates on the interrogation program, made a pitch about their strong desire to destroy the tapes because of the security risks to the officers depicted in them. Porter would express sympathy about their concerns, which he thought were genuine, but he never took the issue up with me. So when I raised the idea of briefing Miers, Porter’s response was pretty much what I expected. “Go ahead,” he replied laconically, “but just so you know, I am not comfortable about the tapes being destroyed on my watch.”
“Me, neither,” I replied.
I arranged to meet with Harriet Miers a week or so later in her White House office. David Addington, who had been present when Scott Muller told Gonzales about the tapes the year before, was in attendance again. Dan Levin, who had replaced John Bellinger as the legal counsel to the national security advisor, also sat in. I brought along John McPherson. Besides having reviewed the tapes at the end of 2002, John was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated. He gave a brief update on the cases, and I then told the group that our senior operational personnel were continuing to push hard for destruction of the tapes. I tried to convey fully and fairly the reasons why they felt so strongly about the issue, because I thought our people deserved that. Finally, I noted the strong opposition to destruction expressed by DNI Negroponte.
The reaction I got was predictable. Addington, a longtime friend who had worked for me at the CIA years earlier, vigorously asserted (he was not a man to mince words) that he had told Scott Muller a year before that destroying the tapes was a terrible idea and, by God, he still strongly thought so. Levin, a low-key but first-rate lawyer with prior White House and Justice Department experience, said little if anything; he was entirely new to the issue and the expression on his face was somewhere between incredulous and appalled. Harriet Miers was typically calm and meticulous, taking notes and asking a few follow-up questions. Still, she echoed Addington’s sentiments, albeit a good deal more quietly. She stopped short of saying that the tapes should never be destroyed, but the message from the White House remained clear: Do not do anything to the tapes before coming back here first.
I reported back to Porter as soon as I returned to Langley. He was neither surprised nor upset by the White House’s reaction. I then told Jose and his chief of staff (I can’t recall if I talked to them separately or together). They were crestfallen, because they were now on notice that the DNI, two successive White House counsels, and the vice president’s top lawyer had weighed in strongly against destroying the tapes. To top it off, I confided to them that Porter Goss seemed distinctly unenthusiastic about the idea, too. I offered Jose the following advice: Cool it for a while because the powers that be are simply not on board.
My advice seemed to have an effect. Jose never again approached me on the subject.
I don’t remember hearing anything more about the tapes for months afterward. But then, around the beginning of November 2005, the top two lawyers from my office responsible for covert operations told me that Jose and his senior staff had come to them wanting to revisit the issue. I am still not entirely certain what, other than the passage of time, prompted his renewed effort. The two lawyers did tell me that the chief of our overseas office, who had been safeguarding the tapes for years, was preparing to retire shortly and was pressing headquarters for final resolution before he left.
It had been six months since my meeting with Harriet Miers. I had no reason to believe she and the others who had strongly opposed destroying the tapes had moderated their views in the interim. But I still clung to the conviction that the advocates for destruction were sincere in their belief and deserved a hearing. In retrospect, I was being naïve. In the years since, I have often wondered whether I should have gone to Jose at that point and told him, in no uncertain terms, “Forget it, Jose. No one is ever going to agree to destruction.” I came to conclude that telling him that wouldn’t have made any difference.
With my agreement, my two lawyers began to work with Jose and his staff to draft language that would be included in a classified cable that would come from the chief of our overseas office, formally requesting permission to destroy the tapes. This would serve to officially “tee up” the issue for headquarters. Once the request was in hand, we lawyers tentatively agreed that I would go back to the director and propose that
I revisit the issue with the White House lawyers. At about the same time, DNI Negroponte would be alerted and consulted about the renewed request. Then, in the extremely unlikely event that all of these officials withdrew their previous strongly expressed objections, we would “scrub” all of the ongoing and pending court cases, congressional investigations, and so on, to ensure that destruction could not conceivably impact any of them. Finally, if all of these hurdles were cleared, the Agency would return to the leadership of the intelligence committees to inform them of the Agency’s intention to go ahead and destroy the tapes.
That was the game plan. In truth, I never thought that destruction was a realistic possibility. There were too many people adamantly opposed to the idea. Too many potential risks and complications. And it had now been over four years since the 9/11 attacks, and questions and concerns were beginning to surface in the media and Congress about the CIA’s still top-secret detention and interrogation program. The tapes were not going to be destroyed, I confidently concluded, not soon and probably not ever.
A few days later I received an e-mail from one of the two lawyers working with Jose’s people on the language that would be included in the cable “teeing up” the request for approval to destroy the tapes. I had thought they were still at this first step of the process. But what I got in the e-mail was a cable, forwarded without comment, that headquarters had just received from the field installation holding the tapes. The cable was terse but its message was unmistakable: Pursuant to headquarters authorization, the tapes had just been destroyed.
Within seconds of reading it, I e-mailed my own one-word comment back to him: “WHAT?!?!”
In those first dizzying moments, I wasn’t sure from whom to demand an explanation first. Jose Rodriguez or my own lawyers? Since Jose’s office was right down the hall and my lawyers were in an adjacent building on the CIA’s Langley Campus, I opted for Jose. As I raced out of my office I told my assistant to get the two lawyers up to my office. Now.
I knew Jose was around, but I couldn’t find him in his office. I ran into his deputy and blurted out what I had just learned. He seemed to know all about it. “I understand your lawyers chopped on it,” he replied calmly, meaning they were aware of and approved the destruction order. He only seemed surprised that I was surprised.
Now my head was spinning.
I ran back to my office, where my lawyers were waiting, holding a copy of the cable from headquarters that authorized the destruction a day or two earlier. Each was normally unflappable in demeanor, but on this occasion they looked shaken. Did they see this thing before it went out? I asked as evenly as I could. Absolutely not, they both assured me. In fact, they said, there was language in it that bore no resemblance to what they had been working on with Jose’s staff. I had worked with these two guys for two decades, and I trusted their word completely. What sealed it for me, though, was the “coordination” line at the bottom of the cable, which appears on all outgoing CIA operational cables in order to record who in headquarters has seen and agreed to the contents. In my career, my name was probably on thousands of such cables; the whole point is to document that a CIA lawyer has concurred in the message. It was an axiom passed down through three generations of CIA operatives: To cover your ass, get a lawyer’s name on your cable.
No names of CIA lawyers were on the coordination line of the cable Jose signed authorizing the tapes’ destruction. Case closed. My guys never saw it before it went out.
I began grilling my two lawyers about their conversations with Jose and his people in the hours before the cable was sent. Did he tell either lawyer what he was about to do? No, they responded. So what did he say to them? Well, they said, they remember him asking two questions: If there were any “legal impediments” to destroying the tapes, and if he had the “legal” authority to order destruction. They told him they were not aware of any legal impediments, meaning there were no court cases or pending investigations that required preservation of the tapes. They also said they had told Jose he had the legal authority to destroy them.
Both of their answers were technically accurate, as best I could tell. But that was beside the point, and Jose had to have known it. He had been on notice by me for three years that the fate of the tapes was not his call. It had nothing to do with his “legal authority.” He had chosen to ignore and defy the White House, the director of national intelligence, and the director of the CIA. And, of course, me.
In my thirty-four-year career at CIA, I never felt as upset and betrayed as I did that morning.
Somewhere in the maelstrom of running between offices, trying to
piece together what had happened, I barged into the director’s office—about thirty yards down the hall and around the corner from mine—to tell him what I had learned. At the time, I thought I was the one who broke the news of the destruction to him, but in reviewing the internal Agency e-mails later, it appears that either Porter’s chief of staff, Pat Murray, or someone on Jose’s staff had told Porter earlier that morning. In any event, when I saw him he seemed as nonplussed about the developments as I was. I had gotten to know Porter well in the year since he arrived at the CIA, and despite his background as a politician, I had come to judge him as utterly without artifice. In the years since, there has been occasional speculation that Porter had to have known in advance what Jose was up to. I didn’t believe that then, and I don’t believe that now.
“What’s done is done,” I told him, doing my best to regain composure by grasping at a cliché. We agreed that we needed to inform the outside “stakeholders,” and we divided up this exceedingly unpleasant duty. Goss would tell DNI Negroponte, and I would tell Harriet Miers. As for the leadership of the intelligence committees, Porter had some definite ideas. He would inform them—Pat Roberts and Jay Rockefeller on the Senate side, Pete Hoekstra and Jane Harman from the House—in one of his regular, off-the-record meetings with them. But not with any of their staffers present. Just a year removed from being a member of Congress himself, he told me he didn’t trust the staffers not to leak the information. He would tell the members when he could get them alone.
There was one final loose end, which was what to do about Jose. “I’ll deal with him separately,” Porter said. Which was fine with me. I was too pissed off and hurt at that point to talk to him. Besides, I was not Jose’s boss. Goss was. It was his responsibility to deal with his act of gross insubordination.
I called Harriet Miers a short time later. I don’t remember the details of that talk, which is odd because I like to think I have a pretty good memory and would vividly recall something like that. I later saw a contemporaneous e-mail from another senior CIA official whom I apparently told about the call. He said I described Harriet as “livid.” Sounds about right to me.
Because Jose’s office was yards away from mine in the Agency’s seventh-floor executive wing, in the days and weeks that followed I inevitably ran into him in the halls or at meetings that we both attended. It
was awkward at first, but he was still in place and I still had to work with him. Besides, in spite of everything, I still liked and respected the guy. Eventually, he briefly broached the subject of the destruction with me. “It was my decision, and I take responsibility for it,” he simply said. I never asked him why he had gone around me to order the destruction. I am convinced he did it because he realized, after three years of relentless pleas, that he was never going to get the go-ahead to destroy the tapes. Not from me, certainly. Maybe, in his own way, he was trying to protect me. I’d like to think that, at least.
It would be two years before the tapes’ destruction episode would reenter my life. With a vengeance.
Those next two years were a time of tumult for the Agency, and for me. Details about the detention and interrogation program, still shrouded in the highest secrecy and officially known to only a relative handful of officials in the Bush administration and the Hill, nonetheless kept leaking, drip by drip, into the media. Secret prisons and waterboarding were becoming national buzzwords, and the CIA found itself enmeshed in an increasingly toxic political controversy. The White House abruptly removed Porter Goss as CIA director in the summer of 2006, with General Mike Hayden of the air force named as his replacement.
Meanwhile, in March 2006, President Bush formally nominated me for CIA general counsel, a position I had been holding on an “acting” basis since Scott Muller’s unexpected departure almost two years earlier. Sent to Congress, my nomination languished for months and then blossomed into a full-blown piece of political theater. My June 2007 Senate confirmation hearing, televised on C-SPAN, turned into a free-for-all over the detention and interrogation program, with me playing the role of public punching bag for half a dozen Democrats. In late September, recognizing that confirmation was hopeless (the Democrats having regained control of the Senate in the ’06 midterm elections), I asked the White House to withdraw my nomination. I reverted to my role as acting general counsel, heading the office again in everything but title. The Democrats, presumably satisfied they had publicly exacted their pound of flesh with the maximum number of sound bites, left me alone to continue as the CIA’s chief legal officer.
At the beginning of December 2007, a former colleague, Jennifer Millerwise, called me about a phone call she had just fielded from Mark Mazzetti, a national security correspondent for the New York Times. Shortly after Porter Goss had become CIA director in 2004, he had brought in Jennifer to be the Agency’s director of public affairs. We became friends and stayed in touch after she left the CIA following Porter’s departure in the summer of 2006.
Now she told me Mazzetti had cryptically said he was working on a story about the “CIA destroying some interrogation videotapes depicting waterboarding.” He said that the destruction apparently occurred during Porter’s tenure, and Mazzetti asked her to convey this information to him to see if he had any reaction or comment. Mazzetti was very low-key about it, but Jennifer was puzzled and alarmed by the call. Puzzled because she had never been brought into the tapes debate while she was at the CIA, so she had no idea what Mazzetti was talking about. Alarmed because a reporter from the most influential newspaper in the country was tossing around the words CIA, videotapes, waterboarding, and destruction. She didn’t need to know much more to recognize that a story like that in the Times would be dynamite. So she decided to call me to let me know.
I nearly dropped the phone.
My first priority was to alert Mark Mansfield, Jennifer’s successor as head of Public Affairs, and Director Hayden. I felt bad about dropping this bomb on Hayden, a brilliant career military officer and intelligence professional who inherited the vexing CIA interrogation program when he took over as director in the summer of 2006. As Negroponte’s deputy DNI, he had been aware of the tapes and the fact that they had been destroyed. But he had been an innocent bystander to the whole thing.
By now Jose was gone, having recently entered the CIA’s retirement transition program. I never had any indication that he suffered any repercussions from his unilateral decision to destroy the tapes. Meanwhile, the intervening period had been a very busy and often stressful time for me (what with my long confirmation battle, among other things), and the tape-destruction debacle had largely receded in my memory. I was aware that lawyers in our litigation division were monitoring the ongoing court cases to determine if the tapes potentially might be implicated, and I would be periodically informed they were not. As best I could tell, everyone who needed to know about the destruction had been informed.
But I thought I needed to call Goss, then in retirement for over a year, to compare our recollections. He was affable and direct as always, and everything was going smoothly until near the end of our conversation. “So please tell me,” I asked, “that you briefed the intelligence committee leaders about the destruction and that there’s a record somewhere of that briefing.”
There was a pause, and then Porter said, “Gee, I don’t remember ever telling them. I don’t think there was ever the right opportunity to do it.”
My heart sank. It was the ultimate nightmare scenario. The New York Times was about to break a huge, holy-shit sensational story about the CIA, and our congressional overseers would be finding out about it for the first time. For three decades, I had been an eyewitness to the Agency’s complex relationship with Congress, and I immediately knew what the reaction would be: Congress would go berserk. Just as it did twenty years before, when Iran-contra first leaked to the media after Congress had been kept in the dark about it.
This was going to be a giant scandal, and I was in the middle of it.
The Times’s first article appeared on Friday, December 7, 2007 (rather fittingly, the anniversary of Pearl Harbor). It was the lead story on page 1, above the fold. Follow-up stories by the Times appeared in the days thereafter, each of them given page 1 treatment. Columns of copy, graphic timelines, photos of Porter and me. The Times was playing it to the hilt, and why not? It was a hell of a story, and most of it was true. The rest of the media, as it usually does, chased the Times’s lead and piled on.
In mid-December, poor Hayden was summoned to two closed hearings before the House and Senate intelligence committees (known by their respective initialisms, HPSCI and SSCI) for a ritual pummeling, especially by the House committee. Hayden kept his dignity and calm in the face of the onslaught, but he was in an impossible position, having to try to explain someone else’s mess. The HPSCI members demanded more witnesses. Most of all, they wanted two people: Jose Rodriguez and me.
Jose’s lawyer, Bob Bennett, informed the HPSCI that Jose would testify only under a grant of immunity. Current Agency employees are essentially obligated to testify before intelligence committees. Being a CIA employee does not mean you have to relinquish your constitutional rights; still, stonewalling an intelligence committee by taking the Fifth
Amendment is a career-ender for a current CIA employee. Former or retired employees, however, are under no such constraints. Within days, Attorney General Michael Mukasey announced the appointment of John Durham as special prosecutor to launch a criminal investigation into the whole fiasco. There was no way Jose was going to testify without immunity, and there was no way the HPSCI was going to get crosswise with the just-beginning Durham probe by granting him immunity. Stalemate. The HPSCI set its sights on me.
So while I would like to say I agonized over what to do, I really didn’t. I was the CIA’s chief legal officer. I had to testify under oath, and without any delay or preconditions. It was my duty. Simple as that.
I went to Mike Hayden’s office to tell him I was prepared to show up whenever the HPSCI wanted me. He never ordered or even encouraged me to do it; he didn’t have to. He called the HPSCI chairman, Representative Silvestre Reyes, to give him the news. After Mike hung up, he turned and looked at me. “Thank you,” he said simply.
With Congress about to leave town for Christmas recess, it was agreed that my closed-session testimony before the HPSCI would take place on January 16, 2008.
I spent the holidays reviewing my personal files and searching my memory in an effort to reconstruct my role in the five-year-long tape-destruction saga. I was the only remaining member of senior CIA management who had been in it from start to finish, so I had a lot of ground to cover. Melody Rosenberry, my chief of staff, helped me immensely in preparing for the hearing, but otherwise I worked pretty much alone, talking to no one else. I thought it best not to interact with any of the current or former CIA officers involved in the matter, especially with Durham’s criminal probe just getting under way. I seriously considered retaining private legal counsel. After all, I was going to be testifying under oath.
Yet I couldn’t bring myself to do it. The perception would have been all wrong: the CIA’s top lawyer decides to “lawyer up,” so he must have something to worry about or hide. Thinking more from my gut than from my head, I decided to go it alone.
January 16, the day of the hearing, was sunny and not too cold. The hearing was scheduled for the afternoon, and I was driven in a CIA van from
Agency headquarters to the Capitol, accompanied by Melody Rosenberry, my special assistant Donna Fischel, a couple of representatives from our Office of Congressional Affairs (OCA), and Paul Gimigliano from the CIA’s Public Affairs Office. The OCA folks assured me on the ride down that they had worked out arrangements with the HPSCI for us to drive to a nonpublic entrance to the Capitol where we would be met and hustled up a private elevator to the HPSCI’s secure hearing room, which was located literally in the dome of the rotunda. That way, it was explained to me, I could avoid the expected scrum of cameras and reporters waiting outside the elevator on the floor of the Capitol rotunda. Not to mention all the tourists.
It was a seamless plan that unraveled as soon as we got to the Capitol. No one from the HPSCI was in sight, and the Capitol policeman guarding the perimeter of the grounds insisted that our van go no farther. So we all piled out, trudged up to the main public entrance, waited in line to go through the security screening, and struggled through a gauntlet of our fellow American citizens, of all ages and sizes, staring at the statuary and display cases. Finally, mercifully, the elevator to the HPSCI was in sight. And then I saw the cameras, the microphones, the TV lights, and the reporters holding notepads.
I had a few seconds to decide what to do. What I really wanted to do was turn tail, retreat to the van, and have the OCA folks call and scream bloody murder to the HPSCI staff. I fought off that instinct and kept walking toward the lights. One thing I was not going to do was stop and talk, but I sure as hell wasn’t going to skulk, either. And then I was there, abreast with the cameras, lights, and microphones. All I could think to do was . . . smile and wave. A quick, chopping wave that I had never done before, ever. I have no idea where it came from, although months later, watching the classic film Giant for the umpteenth time on cable, I noticed that it was a rather abbreviated and arthritic version of a gesture James Dean made several times in the movie. Whatever the subconscious motivation, a photo of me midwave appeared in USA Today the next day. Looking far more confident and jaunty than I actually was, I thought the photo more than anything perfectly captured the sense of false bravado I felt at the time.
Finally, I was able to reach the elevator to the HPSCI’s secure hearing room, where more surprises would await me.
Given the lavish media play of the roiling controversy, I expected a large turnout of HPSCI members for the hearing. And indeed there were at least twenty of them sitting in the three-tier dais when I was ushered into the hearing by Chairman Silvestre Reyes. A like number of staffers were perched behind their bosses. They were all staring down at me as I sat at the witness table. Melody Rosen