John Rizzo, former acting general counsel for CIA, writes in with the following in connection with Lawfare's 9/11 10th Anniversary Project. This essay is adapted from a longer piece, entitled "9/11: Three Major Mistakes," which was published today in the Hoover Institution's Defining Ideas:
I was the CIA’s chief legal officer for six-and-a-half of the first eight years following the 9/11 attacks. 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.
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 three 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.
First, while used previously and explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of "extraordinary" sensitivity, the "Gang of 8" notification process CIA used after 9/11 proved to have disastrous consequences for the agency. 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 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. And they didn't provide it.
Second, in 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. 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.
Third, CIA placed too much emphasis on the enhanced interrogation program. 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.
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.