September 8, 2011

9/11: Three Major Mistakes

The CIA's chief legal officer from 2001-2009 reflects on what we did wrong—and on the lessons we've learned.

I was the CIA’s chief legal officer for six-and-a-half of the first eight years following the 9/11 attacks. I am writing this on the cusp of the tenth anniversary of those attacks, now retired from the Agency for nearly two years after a total of 34 years of service as a CIA lawyer. In the decade that has passed since that ghastly sunny September morning, our country—and the CIA—has become a much different place. Having reflected on all the counterterrorist operations that the Agency has conducted in those years, and on all the controversies and frequent opprobrium it has weathered for some of those actions, I believe there are a number of lessons that we in CIA learned in the course of that unprecedented period of our history.

CIA and September 11, 2011
Photo credit: cliff1066, via flickr

Regrettably, the lessons are mostly painful, as valuable lessons usually are. Certainly, some are personally painful to me, since they were mistakes and misjudgments CIA made in which I played a role. Nonetheless, I summarize a few of them here in a necessarily brief (and incomplete) list to offer an assessment of what the post-9/11 years taught at least one grizzled Agency lifer.

ONE: KEEP CONGRESS INFORMED. EIGHT WAS NOT ENOUGH.

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

As always, CIA dutifully followed White House orders, so for the next five years we only told those select members—euphemistically dubbed the "Gang of 8"—about the program as it developed and expanded. Only they were briefed on CIA’s secret detention facilities overseas and the employment of so-called "enhanced interrogation techniques" (EITs), including the waterboarding of high-value detainees like Abu Zubaydah and Khalid Sheik Mohammad.

While used only rarely in the past, the "Gang of 8" notification process is explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of "extraordinary" sensitivity. It was an entirely lawful way to proceed to notify Congress about the EIT program. Yet I am convinced it proved to have disastrous consequences for CIA.

These lessons are personally painful to me. There were mistakes and misjudgments CIA made in which I played a role.

For one thing, such notifications are only really suitable for surgical, discrete, "one-off" actions; the May 2011 raid on Osama Bin Laden’s compound is a perfect example. The detention and interrogation program, by contrast, was complex, costly, and open-ended in duration, evolving into an ever more treacherous legal and political terrain for the Agency to navigate. From its beginning, what CIA needed above all from Congress was stalwart, bipartisan cover—for their understanding and acquiescence that the continuing Al Qaeda threat required unprecedented measures. We needed it for the time down the road from 9/11 when, absent a second catastrophic attack, the political winds inevitably would change once the initial shock, horror, and outrage about what happened that day abated.

We were naïve in believing that the "Gang of 8" would play that role. There is no way to expect that from a handful of politicians being made to listen some very dicey and chilling information in sporadic, off-the-record sessions. Sure enough, as time went by and controversy over leaked details about the program grew, the only cover they provided was for themselves. In the earliest days of his Administration, President Obama rescinded and publicly repudiated the Agency’s detention and interrogation program, and for good measure declassified virtually every detail of the program.

Shortly thereafter, almost seven years after CIA first informed her about its employment of waterboarding and the other EITs, the Speaker of the House of Representatives, Nancy Pelosi, stood before the cameras and claimed that all CIA ever told her was that waterboarding was being "considered" as an interrogation tactic, not that it would be ever employed. Confronted with evidence to the contrary, the Speaker subsequently conceded that she had been informed about EITs from the outset but insisted she was always opposed to them but powerless to do anything to stop them. None of which was true, but in hindsight the Speaker’s moonwalk was hardly unforeseeable.

Meanwhile, other than the chair and ranking member, the two intelligence committees would be kept in the dark for the first five years of the program, as was every other member of Congress. In effect, they were given a pass on any oversight and responsibility for the program, as the attacks about what the Agency was doing escalated in the media. And to what end, all this extraordinary secrecy? Over those five years, many of the details about the program were leaking out, drip by drip, from elsewhere in the Government.

Things falling through the cracks: something I saw happen far too often in my long Agency career.

Restricting Congress’ knowledge about the detention and interrogation program was foolish and feckless. It was a White House decision, but we in the senior ranks of the Agency—the ones who bore the brunt of that decision—should have pushed back earlier and harder than we did. We should have insisted from the outset that, as a minimum, all the members of the intelligence committees (and senior staffers too) be apprised of all the details all along the way, on the record and with a transcriber present. To allow the committees—compel them, really—to take a stand on the merits to either endorse the program or stop it in its tracks.

Instead, we let Congress off the hook.

TWO: WHEN A SENSITIVE OPERATION GOES AWRY, CONFESS ERROR RIGHT AWAY. BETTER TO BE ACCUSED OF A SCREW-UP THAN A COVER-UP

In 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. It was lawfully conducted, but the tapes were graphic and hard to watch. Almost immediately, those in CIA who made the tapes wanted to destroy them, fearing the faces of the interrogators on the tapes would put them in danger if and when they were ever made public. I, and two successive CIA directors, rejected the idea for three years until November 2005, when the head of CIA’s clandestine service, defying orders, went behind my back and destroyed them. That was bad enough, but what the Agency failed to do next made things infinitely worse.

While we had informed the intelligence committee leadership in early 2003 of the tapes’ existence, we did not tell them on a timely basis about their unauthorized destruction. It was not our intent to hide that fact; it was simply a communications breakdown inside CIA in which then-Director Porter Goss neglected to inform the leadership as we agreed he would do the day he and I learned about the destruction. To this day I am convinced it was an unintentional oversight on his part, and I blame myself for not following up to make sure he had informed the Hill. The whole thing had just fallen through the cracks, something I saw happen far too often in my long Agency career.

Flash forward two years later, to December 2007. Nothing stays secret in CIA forever, and certainly nothing so explosive as the unauthorized destruction of videotapes of CIA waterboarding somebody. The New York Times unearthed the entire mess and ran a series of breathless page 1 stories. The intelligence committees predictably went ballistic, as they always do when they first find out about an intelligence fiasco via the media. In the ensuing pandemonium, I was hauled before Congress for a four-hour grilling. Far worse, a three-year Federal criminal investigation was launched, sapping CIA resources and morale.

Confessing to error may sting, but being accused of hiding your mistakes is far more painful and damaging.

Ultimately, the various investigations would find no evidence of a cover-up, but rather that the whole thing was one monumental screw-up. But the damage to the Agency was done, and it was all self-inflicted. We should have made damn sure that the intelligence committees’ leadership—if not the full committees—were told about the destruction as soon as it happened. To take whatever lumps we deserved (and we clearly deserved some) then and there. We should have done the same thing with judges presiding over then-pending court cases potentially implicating the tapes, even if we weren’t obligated to do so as a technical legal matter. In short, we should have told everyone in all three branches in the Government who had even an arguable need to know.

In the intelligence world, confessing to error may sting, but being accused of hiding your mistakes is far more painful and lasting.

THREE: CIA PLACED TOO MUCH EMPHASIS ON THE ENHANCED INTERROGATION PROGRAM

On its face, this lesson would appear counterintuitive. The EITs, with their introduction of the term "waterboarding" into the national lexicon, furnished much of the oxygen firing the controversies of the post 9/11 years. And yet, to the extent that CIA personnel were involved in unsanctioned treatment of prisoners in those years—and those cases were few and far between—almost none of them involved prisoners who were subjected to EITs. Looking back, I have concluded that was because we devoted so much attention to that program and were so scrupulous about using our most highly trained and experienced officers in that effort. What’s more, there were always medical personnel, and frequently CIA lawyers, on the scene monitoring the EITs to ensure they stayed within carefully prescribed standards approved in writing by the Justice Department.

But at the same time, and particularly in the first few years after 9/11, CIA officers took part in numerous other interrogations of Al Qaeda captives, none significant enough to meet the criteria for EITs. These relatively low-level captures tended to be ad hoc, unforeseen and generally under the radar of those of us in CIA headquarters. Our officers in the field, many of whom were newly arrived on the scene and thrust into the breach with little counterterrorist experience, were frequently left to their own devices in dealing with their captives. Under tremendous stress and in often isolated, dangerous areas, most performed professionally and valiantly.

But every once in a while, there were apparent excesses in their treatment of their prisoners. Back at Langley, consumed by our focus on capturing the biggest Al Qaeda quarry and on overseeing the EIT program, our attentions were largely turned elsewhere. That, I have come to believe, was a mistake. An understandable, inevitable mistake perhaps, but a mistake nonetheless.

We should have recognized that all CIA counterterrorist prisoners carry risks, as well as rewards, and approached all of them accordingly.

***

As I indicated at the beginning of this piece, my list here is necessarily truncated. There are plenty of other lessons I learned, and with more space I could talk about them. For instance, stalking and killing a big-name terrorist evidently is less legally risky, and is viewed in many quarters as far less morally objectionable than capturing and aggressively interrogating one. Or that trying to create from scratch a new framework of military tribunals to prosecute accused terrorists has proven to be a well-intentioned but utterly failed exercise. It is a travesty and disgrace that, 10 years after 9/11, there has yet to be a trial, much less a conviction, of any Al Qaeda figure in custody with 9/11 blood on his hands.

But I will end on a different note. A decade after 9/11, there has not been another successful Al Qaeda attack on the homeland. And Osama Bin Laden has met his just desserts. All in all, not a bad bottom-line for CIA and the rest of the U.S. intelligence community.


John Rizzo was a lawyer at the Central Intelligence Agency from 1976 through 2009. He was its chief legal officer from 2001 through 2002 and 2004 through 2009. Currently he is a Visiting Fellow at the Hoover Institution and a Senior Counsel at the Steptoe & Johnson law firm. He is also writing a memoir of his CIA career.


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