Politics

03.14.14

Ex-CIA Top Lawyer: Release the ‘Black Site’ Report

One of the men who may have the most to lose by the release of a long-suppressed report on CIA secret prisons says it’s time to make the document public.

The CIA has been dueling with its Senate overseers for more than a year over a report on the agency’s secret prisons. The CIA has tried to edit the Senate’s classified report and delay its release. But this week many voices—including President Obama -- called for the report to be declassified. One of those voices is John Rizzo, the CIA’s former top lawyer – and one of the men who arguably have the most to lose by the document’s release.

Rizzo is the legal architect of the Bush-era “black site” secret prison program and the rules for the brutal interrogations that happened inside of them. In a declassified memo from 2002, Rizzo—as the CIA’s General Counsel -- asked the Justice Department in detail whether it was legal to subject a captured senior al Qaeda logistics planner to sleep deprivation, stress positions, water boarding and even a small coffin with a single insect inside

The Democrats on the Senate Select Committee on Intelligence – and many, many outside observers -- called those techniques torture. And considering that no Republicans on the committee participated in writing or researching the black site report, it’s expected to be particularly tough on guys like John Rizzo.

“My role is what it is,” he told The Daily Beast in an interview Thursday. “I assume whatever is in that report is not going to be praiseworthy of my decisions. But I believe the report should be declassified along with the CIA rebuttal. I would have no problem with them releasing the report. I think it needs to get out there.”

The report authored by the Senate intelligence committee's Democrats re-emerged last week at the center of a now-public war between Congress and the CIA. Earlier this month, the New York Times and McClatchy reported that CIA Director John Brennan authorized the search of a special computer system set up at agency headquarters that Senate staffers could use to comb through millions of pages of documents related to the CIA’s capture, jailing and interrogation of suspected al Qaeda operatives.

The Justice Department is now investigating whether or not the CIA’s decision to search those computers violated the Constitution and obstructed the Senate’s own oversight work. The Justice Department is also investigating whether Senate staff members improperly obtained classified documents they were not supposed to access in the course of their research.

The CIA’s fight with Congress over the black site program has been going on for nearly a decade. In his memoir, Company Man, Rizzo says he told Jose Rodriguez, the head of the CIA’s Counter Terrorism Center at the time, repeatedly to hold off on destroying videotapes of the harsh interrogation of al Qaeda operative Abu Zubaydeh. Rizzo even writes that he tried to stop the destruction of the tapes when he was told the decision was being teed up in 2005. He writes that Rodriguez sent the cable authorizing the destruction of the tapes without copying him or any other lawyers at the agency. “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,” Rizzo wrote.

Pete Hoekstra, who was the chairman of the House Permanent Select Committee on Intelligence when Rodriguez destroyed those tapes told the Daily Beast this week that Congress had wanted to see them. 

“Here you’ve got the CIA going after senate staffers for getting information, no one ever went after Jose Rodriguez after he destroyed the video tapes of interrogations knowing that Congress wanted to see them,” Hoekstra said. “If you ever wanted a criminal referral, that would have been one I would have supported 100 percent.”

Rizzo for his part thinks it is a mistake to have the Justice Department investigate the Senate staff members conducting their oversight activities for mishandling classified documents.

“I just know what I read now, as best I can tell no one has committed a crime on either side,” Rizzo said. “I mean for its part the committee has a writ to investigate the CIA’s activities including the interrogation program. The CIA for its part has a legitimate interest to make sure the security of the classified documents it provides is protected. At most here, there may have been a technical breach of the procedural arrangement. I don’t see any criminal intent on either side here.”

On Tuesday, Sen. Dianne Feinstein, the Senate Intelligence Committee chairwoman, said the CIA’s investigation into her staff—along with the search of her committee’s computer network—were entirely inappropriate and possibly illegal. CIA director John Brennan has countered that he believed once all the facts came to light he would be vindicated.

But the report on the CIA’s black sites looks likely to wound CIA – and perhaps Rizzo, as well. Feinstein on Tuesday said a preliminary 2009 report from two of her committee staffers showed how the CIA has not publicly acknowledged the full extent of what was entailed in its network of secret prisons

That could mean that Rizzo, who represented the black site program for so long, may have made incomplete or even factually incorrect statements on the subject. He said if the committee unearths documents that undermine testimony he gave to Congress—“I am not conceding that happened,” he stressed—“it was not because of any intention to willfully mislead anybody.”

“I assume whatever is in that report is not going to be praiseworthy of my decisions. But I would have no problem with them releasing the report. I think it needs to get out there.”

A draft of the Senate’s full report was finished at the end of 2012. But since then it has been subject to a tug of war with the CIA. In the summer of 2013, the agency finally returned 120 pages of comments on the draft. While President Obama and Brennan have said publicly he would like to declassify the report, Feinstein has indicated that the CIA’s lengthy process of responding to the claims in her committee’s report amounts to foot dragging.

The CIA has in the past claimed these harsh techniques (described as torture by, among others, President Obama) helped make non-cooperative detainees such as Khaled Sheikh Mohammed, the highest ranking al Qaeda operative captured by the United States, open up to CIA officers. In 2011, then CIA director Leon Panetta said some of the detainees interrogated in CIA prisons provided valuable intelligence that led to the capture of Osama bin Laden that year.

But the report may undercut this claim. Some of the documents Senate staff members accessed that the CIA says they were not supposed to see were summaries of the documents already provided to the Senate Committee. The review of these documents ordered by Panetta bolster the Senate’s claims about the program, according to Feinstein and other U.S. officials familiar with the draft of the report.

For now, the fact that even the legal architect of the CIA’s black site program supports declassifying the senate’s report has made for some unusual political bedfellows. Hina Shamsi, the director of the America Civil Liberties Union’s National Security Project told The Daily Beast: “Even the unlikeliest are joining the growing calls for the report’s declassification and release. It’s hard to see how there is any legitimate basis to object to a declassification vote as soon as possible and for declassification to occur fully and expeditiously.”

Feinstein has said she plans to hold a vote on her committee to submit its report for declassification by the end of the month.