One CIA Lawyer Could've Stopped Waterboarding Before It Started, Here's Why He Didn't

John Rizzo, CIA attorney, reveals thinking behind controversial program.

January 31, 2014, 12:19 PM
PHOTO: CIA Acting General Counsel John Rizzo heads into a closed-door hearing with The House (Select) Intelligence Committee at the Capitol in Washington, Jan. 16, 2008.
CIA Acting General Counsel John Rizzo heads into a closed-door hearing with The House Select Intelligence Committee at the Capitol in Washington, Jan. 16, 2008.
Chip Somodevilla/Getty Images

Jan. 31, 2014 — -- On Sept. 11, 2001, after three passenger planes had slammed into the World Trade Center towers in New York and the Pentagon in Washington, D.C., and while another hijacked plane was still unaccounted for, the CIA headquarters was evacuated.

But like several counter-terrorism officers and analysts in the building, John Rizzo, one of the Agency's top attorneys at the time, didn't move. Instead, he sat at his desk, took out a yellow legal pad and began drafting the legal justifications for what he had already predicted would be a "full-scale assault on al Qaeda [which would] employ all means necessary to prevent any further attacks on the homeland."

"On that unimaginable morning, I let my imagination run wild," Rizzo writes in his memoir, "Company Man", which covered his 30-plus years as a CIA lawyer and was published earlier this month. After first deciding that previous lethal action permissions would have to be expanded to go after "members of al Qaeda and any affiliated groups," he considered that American operatives would also need to take their enemies alive in order to discover al Qaeda's further plans.

"I scribbled down the phrase 'capture, detain and question' on my legal pad. I was totally winging it now," Rizzo writes. Less than a week later, President George W. Bush signed a Memorandum of Notification authorizing the "capture and detention of al Qaeda terrorists" and another for "taking lethal action against them."

But what should the American government do once it had captured suspected terrorists, and how intensely could they be questioned? When normal questioning appeared to be failing with captured high-level al Qaeda operative Abu Zubaydah in 2002, Rizzo writes that he was approached by a couple officers from the Counter-Terrorism Center with a new proposal.

"It had a deceptively bland name: 'Enhanced Interrogation Techniques,' or EITs for short. During my previous twenty-five years as an Agency lawyer, I had never heard of anything remotely like this," Rizzo writes.

Enhanced interrogation, as it was described to Rizzo then, included a number of techniques designed to break a man's will, including sleep deprivation, slapping and a method of simulated drowning called waterboarding -- which he called the "ultimate EIT" and which would be called "torture" years later by a chorus of top American officials including President Obama, former CIA Director Leon Panetta and former Presidential candidate Sen. John McCain, who himself was a victim of torture during the Vietnam War.

But at the time, it was down to Rizzo to decide how far American interrogators could go, and his decision would affect the way America would conduct its War on Terror for years.

"After the briefers left, I took a long walk around the headquarters compound, smoking a cigar and trying to process what I had just heard and to figure out what the hell to do next," Rizzo writes. "What I had to think about – bugs in boxes [which Zubaydah feared] and simulated drowning – would have been unthinkable to me only an hour before.[…] I have no doubt that if I had said the word, much if not all of the EIT initiative would have quietly died before it was born. It would have been a relatively easy thing to do, actually.

"But over the next day or two, as I turned things over in my mind, I concluded that the issue was anything but easy. We were less than six months removed from 9/11, the national was still in the throes of fear and dread about another catastrophic attack, intelligence reports were cascading in indicating the possible imminence of such an attack, and the CIA had in its custody and control the one guy who would likely know when, where, and by whom the next attack would be carried out. And he was taunting and mocking us about it. The Agency's singular objective, for the sake both of the country and of its own institutional existence, was to do anything and everything in its lawful power to prevent another attack from happening."

Rizzo said he considered the "nightmare scenario" in which another attack strikes the homeland and Zubaydah "gleefully tells his CIA handlers he knew all about it."

"All because at the moment of reckoning, the Agency had shied away from doing what it knew was unavoidable, what was essential, to extract that information from him. And with hundreds or thousands of Americans again lying dead on the streets or in rubble somewhere, I would know, deep down, that I was at least in part responsible.

"In the final analysis, I could not countenance the thought of having to live with that," he writes.

But Rizzo did not outright affirm the legality of all of the proposed techniques. Instead, he writes that he told then-CIA Director George Tenet that he couldn't tell if some of the "very harsh, even brutal" techniques constituted torture and instead "punted" to the Department of Justice, preferring to have them make the call. A few months later, a Top Secret legal opinion from the DOJ came through: except for one technique, which wasn't described in Rizzo's book, all the proposed EITs were found to be legal, including waterboarding.

Rizzo writes that he is aware of three people who were waterboarded by the CIA: Zubaydah, self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri, described as a key figure in the 2000 al Qaeda attack on the USS Cole.

"Overall, the Agency kept a cumulative total of about one hundred prisoners in its black sites in the seven years the EITs were in existence, from 2002 to early 2009. KSM was the last one waterboarded [in 2003]. Again, in succeeding years outside groups would claim otherwise. If that were true, I am convinced I would have known about it. And I didn't," Rizzo writes.

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When the enhanced interrogation program became public through media reports in the mid- to late-2000s, a passionate national debate ensued and public pressure mounted to end what many critics, including aforementioned high-level American officials, believed constituted torture.

As one of his first acts in office in 2009, President Obama formally put an end to the program with an executive order called "Ensuring Lawful Interrogations" which directed all detainees to be questioned using only the techniques approved in the Army Field Manual.

"Waterboarding is torture. It's contrary to America's traditions, it's contrary to our ideals, it's not who we are, it's not how we operate," Obama told reporters at a press conference in 2011 ahead of the 2012 presidential election. "If we want to lead around the world part of our leadership is setting a good example. And anybody who has actually read about and understands the practice of waterboarding would say that that is torture and that's not something we do. Period."

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