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CIA’s Former Top Lawyer Fires Back At Senate Report, Criticizes Feinstein

CIA’s Former Top Lawyer Fires Back At Senate Report, Criticizes Feinstein

By James Rosen, McClatchy Washington Bureau

WASHINGTON — The CIA’s former top lawyer disputes Senate findings that the spy agency lied about its brutal interrogations of terrorists, insisting the tactics produced useful intelligence and flatly denying that the CIA misled the Bush administration, Congress and the American public.

At the same time, John Rizzo, who left the CIA as acting general counsel in 2009, said some CIA employees or contractors were overzealous in the use of the tactics but that the CIA informed lawyers at the Justice Department of the excesses.

Rizzo was responsible for helping to create the legal foundation for permitting waterboarding, extreme sleep deprivation and other aggressive methods he says were used on 30 people held at secret “black sites” around the world.

In his first extensive interview since McClatchy published the 20 key findings of the Senate Intelligence Committee report last week, Rizzo strongly denied the panel’s conclusion that the 10 so-called enhanced interrogation techniques, which he acknowledged were brutal, had failed to produce significant intelligence or to prevent more terrorist attacks.

“This program went on for six years,” Rizzo told McClatchy earlier this week. “And I watched daily — every night there was a meeting in those early years at 5 o’clock. It was chaired by the CIA director, George Tenet. And every night, during the course of those briefings, the career CIA analysts and operatives would sit there and recite the information that had been acquired from these detainees. I mean on a daily basis. I’m not an analyst or an operative, but I’m not stupid, and I sat there and listened to this relentlessly.”

Rizzo, who said he hadn’t seen the Senate report but only the published accounts of it, noted that some of the CIA officers and analysts providing updates on the interrogation sessions “were not generally enamored of the Bush administration” and thus weren’t inclined to exaggerate the interrogation program’s effectiveness.

“I was convinced that these techniques were yielding detailed, valuable information into terrorist plots,” Rizzo said. “Now was there ever a ticking time-bomb scenario? I don’t remember a particular (case of): ‘Tomorrow, LAX (airport) is going to blow up,’ but it was incremental and it was steady. And I became convinced just by listening to these career people that the program was yielding very, very valuable benefits.”

Rizzo’s central involvement in crafting the interrogation techniques led Senate Democrats to block his confirmation as CIA general counsel in 2007. He then served as acting general counsel until retiring in October 2009.

Rizzo’s comments mark the first detailed response from a current or former CIA official to the Senate report, which took four years to complete at a taxpayer cost of $40 million.

With Presidents George W. Bush and Barack Obama claiming to have protected the homeland from follow-on terrorist attacks to the Sept. 11, 2001, tragedy, the escalating fight between the Senate and the CIA raises an important question:

Did the aggressive interrogation techniques, which some current and former U.S. officials and foreign governments say constituted torture, help protect Americans?

Obama formally ended use of the tough interrogation methods within days of taking office in January 2009. Their use had subsided and several of the harsh methods had been abandoned in 2006, after Justice Department opinions justifying them were made public and U.S. abuses of prisoners at the Abu Ghraib prison in Iraq caused an international uproar.

Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, hasn’t released the 6,300-page report on her aides’ review of the interrogation program. The committee voted to send the report, its executive summary and the findings to the White House for declassification.

Rizzo, who last year published memoirs called Company Man in which he described the birth and development of the detainee interrogations, also rebutted the Senate report’s conclusion that “the CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s detention and interrogation program,” according to a McClatchy article last week.

“It’s just false,” Rizzo said of the finding. “If the implication is that — and it has to be directed at me — that I purposely misled the Department of Justice about what the techniques were and how they were being implemented, I absolutely reject that.”

Rizzo, who’s likely to be named in the Senate’s investigative report, said it was his idea to seek legal justification for the interrogation program — and to make sure it didn’t violate U.S. and international anti-torture laws and conventions — by asking the Justice Department to provide detailed legal memos.

Three of the Justice Department memos, drafted by then-Deputy Assistant Attorney General John Yoo, sparked widespread controversy when they were released between 2004 and 2008 because of their detailed descriptions of the approved interrogation techniques, among them waterboarding — which simulates drowning — prolonged sleep deprivation, wall standing, facial hold, insult slap and cramped confinement in a box.

“I understand why the public found those memos shocking because they ARE explicit,” Rizzo said. “But that’s the way I wanted them to be, so that there would be no misunderstanding about what we were going to do and how we were going to do it.”

Rizzo’s response to the Senate report is likely to further exacerbate already high tensions between the CIA and the main Senate committee charged with overseeing it under a broad constitutional mandate.

Feinstein (D-CA) has accused the CIA of monitoring the committee’s computers and possibly impeding its investigation by removing digital documents her aides had identified. The agency, in turn, said Feinstein’s staff removed unauthorized documents from a secret CIA facility. Both sets of charges have been referred to the Justice Department for possible criminal investigation.

In a passionate 45-minute speech on the Senate floor last month, Feinstein said the CIA may have broken the law and even violated the Constitution by infiltrating her aides’ computers and obstructing a Senate oversight investigation.

For his part, Rizzo partially agreed with another key finding of the Senate probe: “The CIA subjected detainees to interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA headquarters.”

Rizzo acknowledged there were excesses that went beyond the 10 enhanced interrogation techniques he’d vetted within the CIA and then cleared with the Justice Department.

“There were incidents when CIA interrogators went beyond the authorized techniques. So I’m not denying that,” he said. “It didn’t occur frequently, but it did occur. But the point is, each time that was done and discovered, CIA reported it to the Department of Justice because anything that was beyond the authorized scope of the techniques was potentially a criminal violation. … So that conclusion (of the committee) is actually accurate. But if the idea is that we covered this up, nothing could be further from the truth.”

Soon after ending the program in 2009, Obama said CIA officials or agents who had acted “within the four corners of legal opinions or guidance” they’d received on the detainee interrogation program would not be prosecuted. But he said “those who formulated those legal decisions” could have their cases reviewed by Attorney General Eric Holder. Five years later, there have been no prosecutions for the harsh interrogations, even those that Rizzo acknowledges went over the line.

While saying he respects Feinstein as a “serious person” who’s been a strong defender of national security programs, Rizzo criticized the senator and her aides for having failed to interview him or his former colleagues before completing the report and sending it to the White House.

Rizzo said he took the claims that he and his colleagues had withheld important information about the interrogation program from the Justice Department as a personal and professional slight.

“Here they are making an accusation about my honor and my integrity, without the basic fairness of giving me an opportunity to explain and defend myself,” he said. “I just think that’s unconscionable.”

Rizzo said he and other former senior CIA officials who were centrally involved with developing and overseeing the harsh interrogations would have been more than willing to discuss them with Senate investigators.

“There are probably two dozen senior CIA people that were heavily involved in this program, who are retired,” he said. “I’ve talked to a number of them. I can tell you, a good many of them would have welcomed the opportunity to be interviewed. And none of them (were) — nobody.”

Rizzo, who worked at the CIA as a lawyer for 34 years before his retirement, said the Senate Intelligence Committee’s approach differed substantially from earlier congressional probes into controversial CIA programs such as the Iran-Contra affair in the 1980s.

He also noted that those previous probes had produced bipartisan reports in which Republican and Democratic lawmakers stood behind the findings.

In the Senate Intelligence Committee’s review of the enhanced interrogation program, by contrast, the panel’s Republican members bowed out four months into the investigation.

“When the CIA was criticized in those other investigations, it was on a bipartisan basis,” Rizzo said. “That’s not the case here. This is strictly a political exercise by the Democratic side of the Intelligence Committee to castigate a Bush-era program.”

Rizzo said Feinstein’s concern that the CIA would decide which portions of the massive report should be declassified, which she expressed last week in a letter to Obama, was misplaced.

“I’ve been through a number of CIA declassification exercises of congressional reports in my time,” Rizzo said. “And what happens is, CIA takes its cut — what they think should be redacted. It is then sent over to the White House with CIA’s explanations: ‘We think this paragraph discloses secrets.’ But the president is the declassifier in chief. So I understand the concern about CIA getting to censor (a review of) its own conduct, but in the real world, it doesn’t operate that way. … The CIA does not have the final word. The president of the United States has the final word.”

When the declassification is complete and the inevitable public outcry ensues, Rizzo views it as a fulfillment of a prophetic warning he issued in November 2002, shortly after the harsh interrogations had started being used on terror detainees.

Speaking at an American Bar Association forum in Washington on the law and national security, he said: “We at CIA have to be careful what we wish for. The agency has gotten all the authorities it has requested, but I wonder what will happen if something goes awry. The pendulum is bound to swing back, and today’s era of political consensus for increased intelligence authorities will come to an end sometime in the future. It will be good for the country when the terrorist threat is perceived to be less, but it could be bad for the CIA.”

Sipping from a glass of white wine at a Georgetown lounge all these years later, Rizzo boiled down his prophecy.

“In a way, the CIA is a victim of its success at keeping the country safe,” he said.

Photo: Molly Riley/MCT

The Unbearable Lightness Of Being CIA General Counsel

The Unbearable Lightness Of Being CIA General Counsel

Originally posted at The Washington Spectator

In the months following 9/11, it seems Washington just couldn’t say “no” to the CIA. The agency’s budget shot through the ceiling. Suddenly the CIA not only commanded private armies, it even had a state-of-the-art air force! Between 2006-2007, the CIA drove a proxy war, mobilizing Ethiopia’s army to invade Somalia. It was perhaps the most audacious war the CIA ever triggered. But it hardly raised a stir in Washington, where reinvigorated secrecy ensured that hardly anyone knew about it—and where to this day few analysts even understand what the CIA’s little war, in which thousands of innocent civilians perished, was about. The CIA also bore core responsibility for a nine-year-long drone war in Pakistan: 300 strikes with more than 3,000 fatalities, almost all of this in an area that U.S. military strategists describe as the core of the battlefield in the current war. It also ran, jointly with the military, drone campaigns in Yemen and Somalia. None of this is what the authors of the National Security Act had in mind with the words “covert operation.” In fact, virtually the only people in the world from whom these activities were kept secret were American voters.

Throughout this period, the dapper and good-natured John Rizzo was the CIA’s senior career lawyer. One would hope to find in his memoir a deep account of the policy battles that led to the CIA’s transformation, and particularly the legal issues. There is no other time in American history when the public has been riveted by legal policy issues as luridly appealing as those that emerged in 2004-2007. Gruesome accounts of homicide and torture in secret prisons run by the American government rocked the world. The scandal opened with now-iconic photographs from Abu Ghraib, and spread as stories emerged from Bagram, Camp Nama, the CIA’s Salt Pit prison north of Kabul, its secret prison near Rabat, Morocco, and Guantánamo. President Bush insisted that “we do not torture.” But an avalanche of secret U.S. legal documents quickly showed otherwise.

John Rizzo was at the center of this storm.

Company Man offers an interesting collection of vignettes from a 35-year career in the agency, but its essence is a rationalization of the CIA’s decision to operate black sites and use torture. Rizzo chronicles the steps that led to these decisions and then to back away from them. We discover, for instance, as John Kiriakou first revealed, that the key decisions about the use of waterboarding, mock burial, the cold cell, longtime-standing, sleep deprivation and similar techniques, were taken by the CIA both to the Justice Department’s Office of Legal Counsel (OLC) and to the White House. They were ultimately reviewed and approved by the National Security Council (NSC) Principals Committee (consisting of key cabinet officers, the national security advisor, the president and vice president). Only two members of the NSC openly voiced reservations: Condoleezza Rice didn’t like enforced nudity. Colin Powell objected to sleep deprivation. (Kiriakou, a former CIA case officer and analyst, is currently serving a prison term for what he revealed.)

Donald Rumsfeld, who once stormed out of a party when asked about war crimes, didn’t want to be in these meetings. John Ashcroft was “mostly silent.” But Dick Cheney stood tall for torture and was a forceful dissenter from President Bush’s late 2006 decision to eliminate it. One curiosity: in his recent biography, Bush proudly took responsibility for the use of the “enhanced interrogation techniques,” but Rizzo doesn’t recall that Bush was ever actually briefed on them.

Rizzo makes clear that going into this process he had one key worry. It was never whether the techniques were legal or moral. Rather it was how he could protect CIA personnel from the risk of prosecution at some point in the future. The strategy he developed to accomplish this reveals Rizzo as a consummate Beltway insider. By involving the White House at the highest level in the decision, he ensured that accountability would, if pursued, have to reach to the very top of the government. Federal prosecutors would of course find it impossible to open a criminal inquiry into the entire National Security Council, particularly with the attorney general personally blessing the whole process. And by securing opinions from OLC, Rizzo was effectively securing a get-out-of-jail-free card for his team—ensuring that no one at Justice would dare bring charges against them. We see how well this strategy worked later on, when Attorney General Eric Holder appointed a special prosecutor to examine a number of cases flagged by a CIA inspector general. The evidence was copious, but the prosecutor declined to press charges in any of the 101 cases, including those involving homicide. Any other decision would have led to the top. All the way to the top.

Historians looking at Rizzo’s account will have to exercise caution on some elements. His style, often simple and frank, becomes bitter, defensive and occasionally downright deceptive when torture techniques are on the table. Rizzo is unstinting in his testimonials to everyone up his chain of command, but has a noticeable disdain for anyone who talks about “torture.” Hence, John McCain “gave me serious pause about his temperament,” Ron Wyden was “a foe who could not be appeased,” Dianne Feinstein was “not courteous,” and Rizzo can muster only contempt for the ACLU, human rights groups, journalists, U.N. rapporteurs and “academic dilettantes” who “write with indignation” about torture and deaths in CIA detention camps.

According to Rizzo “every, and I mean every” CIA employee involved in these programs “believed in it wholeheartedly and unswervingly.” Given the self-selective nature of the programs, it’s hardly surprising that those involved in them would persuade themselves of benefits, but the appearance of books and articles by participants who believe the programs were corrupt, immoral and ineffective (CIA agents Glenn Carle and Sabrina de Sousa, to cite two) suggest Rizzo’s inability to take a head count.

Rizzo insists that the CIA “wanted no part of torture” which it had “never countenanced, much less facilitated.” He justifies this by claiming that waterboarding a prisoner more than a hundred times, putting a prisoner with a fear of insects in a box with insects, staging a mock burial, extended sleep deprivation, hypothermia and repeated combinations of these techniques never raised a serious question of torture—because Rizzo had an OLC opinion to the contrary in his pocket. The fact that the authors of that opinion knew nothing on the subject, that they had been promised judicial appointments and promotions for issuing it, that for the 50 years before and the eight years after these decisions, the Justice Department was very clear that these techniques were either torture or cruel, inhuman and degrading treatment not permitted by U.S. law—all that is ignored. Rizzo similarly sidesteps the CIA’s now notorious proxy-detention regimes set up in Morocco, Libya, Somalia and Egypt, where torture still more gruesome was practiced. Rizzo’s penchant for wordplay starts from the first pages of the book. Being called before a grand jury or congressional oversight panel to answer questions about the black site program is “torture.” On the other hand, waterboarding someone more than a hundred times is just an “enhanced interrogation technique,” and it is apparently insulting to the CIA as an institution to call it “torture.”

The most surprising aspect of Rizzo’s book is just how easy it is to be a CIA lawyer. Are CIA agents violating the law of a foreign nation? “We rather expect they do, all the time,” he tells one audience. No need even to worry about it. Violations of foreign treaties and covenants? Rizzo seems to believe that if the CIA should worry about it, the State Department or Justice Department will tell them. If there’s a question, ask them for guidance or an opinion. Why fret about it?  Instead, we learn that the CIA lawyer’s lot really focuses heavily on domestic law, especially federal rules concerning the use of appropriated funds, specific congressional limitations on operations, and the art of drafting national security findings. A prisoner being tortured to death in Afghanistan is not really his worry—the DOJ will handle that, or more likely, bury it. But a senior CIA agent destroying tapes that are sought in a pending court case—now that’s a nightmare.

Rizzo supposes that nothing much of consequence to him happens outside the Beltway. The problem with disclosure of the use of torture techniques, the operation of black sites, the sweeping use of drones are all problems within the American political and legal system—public ire, congressional hearings, budget challenges, pressure to discipline employees, confirmation battles. There hardly even seems to be a world beyond the Beltway. But this points to the amazing shortsightedness of this book and the world it portrays.

In Italy, a court in Milan convicts 26 CIA agents and persons working with them for kidnapping, over their “snatch” operation targeting an Egyptian cleric who was already the subject of an Italian criminal justice probe. Their prisoner was whisked away, using a U.S. Air Force Base, to Egypt, where he was tortured through a CIA proxy-detention program. The convictions are sustained on appeal, even as the U.S. attempts to protect the CIA’s station chief in Rome with a claim of diplomatic immunity.

In Poland, criminal probes continue to identify CIA agents who set up a black site at a villa in Stare Kiejkuty, in the lake district three hours north of Warsaw, a CIA outpost that Rizzo once visited. Arrest warrants are issued for the CIA personnel involved, criminal charges are opened against their Polish collaborators.

Across the frontier, in Lithuania, another CIA black site is exposed and investigated by civil-rights activists. In February a court in Vilnius issued a mandate to the prosecutors to open a criminal probe of torture that may have occurred in that black site.

In Strasbourg, Europe’s highest court found an innocent German greengrocer had been abducted and tortured by the CIA in Macedonia in a case of mistaken identity. The court cited and chided the Macedonian authorities for failing to open a criminal probe and pursue the perpetrators—now high-ranking CIA officials, including the head of the agency’s counterterrorism center.

The prosecutors in all these cases, and in other cases pending in Spain, the U.K. and Australia, trade notes tracking the CIA personnel involved, their pseudonyms, their use of credit cards, frequent-flyer accounts and other data in the expectation of some day making arrests. This leaves the agency personnel unable to leave the United States, facing potentially heavy jail terms—and all at the hands of core U.S. allies who enthusiastically supported the war on terror and previously worked closely with the CIA.

All these developments flow from John Rizzo’s legal advice at the CIA, but you will strain to find the most fleeting mention of them in his book. If this book does give us a glimpse into the mind of the CIA lawyer, what it reveals is a capacity for self denial and willingness to ignore inconvenient truths that indeed define John Rizzo as a “company man.”

Scott Horton is a fellow at The Nation Institute and a contributing editor at Harper’s.

AFP Photo/Saul Loeb