Cit­ing a CIA re­view that found ‘no fault’ does nothing to re­solve con­tra­dic­tions

The Washington Post Sunday - - POLITICS & THE NATION - GLENN KESSLER glenn.kessler@wash­

“There was an in­ter­nal in­ves­ti­ga­tion of the is­sue con­ducted by one of my pre­de­ces­sors, Mr. Morell, who found no fault with my ac­tions and that my de­ci­sions were con­sis­tent with my obli­ga­tions as an agency of­fi­cer.”

— Gina Haspel, nom­i­nee to be CIA di­rec­tor, in re­marks dur­ing her con­fir­ma­tion hear­ing, May 9, 2018

A key is­sue in Gina Haspel’s nom­i­na­tion to be CIA di­rec­tor is her role in the CIA’s 2005 destruc­tion of video­tapes doc­u­ment­ing in­ter­ro­ga­tion ses­sions with al-Qaeda de­tainees us­ing bru­tal tech­niques, in­clud­ing wa­ter­board­ing. In prepa­ra­tion for her hear­ing, the CIA de­clas­si­fied a 2011 in­ter­nal dis­ci­plinary re­view, writ­ten by then-deputy CIA di­rec­tor Michael Morell, that Haspel and her al­lies have said ex­on­er­ated her.

“I have found no fault with the per­for­mance of Ms. Haspel,” Morell wrote. He es­sen­tially said she was a “good sol­dier” who fol­lowed or­ders, in­clud­ing an or­der to draft the ca­ble to de­stroy the tapes.

But there’s less to this re­view than meets the eye, and var­i­ous ac­counts have raised other ques­tions about her role in the tape de­ci­sion. Dur­ing her hear­ing, Haspel ad­dressed some of those ques­tions. As a reader service, here’s a guide to the de­bate.

The Facts

On Nov. 8, 2005, the Se­nate voted on whether to ap­prove an in­de­pen­dent in­ves­ti­ga­tion of the CIA’s treat­ment of de­tainees. The pro­posal, ad­vanced by thense­n­a­tor Carl Levin (D-Mich.), was voted down. But at the time, a CIA de­ten­tion fa­cil­ity in Thai­land re­tained 92 video­tapes of in­ter­ro­ga­tions — 90 of Zayn alAbidin Muhammed Hus­sein (bet­ter known as Abu Zubaida) and two of Abd al-Rahim alNashiri. (A 2004 CIA in­spec­tor gen­eral re­port found that 11 were blank, two were mostly blank, and two were bro­ken.)

That same day, Jose Ro­driguez, then di­rec­tor of the Na­tional Clan­des­tine Service, sent a ca­ble to the Thai­land fa­cil­ity in­struct­ing CIA per­son­nel there to use an “industrial strength shred­der” to de­stroy the tapes. On Nov. 9, the tapes were de­stroyed.

Haspel was Ro­driguez’s chief of staff at the time, and she tes­ti­fied that she re­ceived a no­tice on her com­puter that the ca­ble had been sent. In late 2002, Haspel over­saw the se­cret Thai­land fa­cil­ity, where one al-Qaeda sus­pect had been wa­ter­boarded. An­other de­tainee also was wa­ter­boarded be­fore Haspel’s ar­rival.

John Rizzo, then the act­ing CIA gen­eral coun­sel, had long been in­volved in the seem­ingly end­less de­bate in­side the agency about whether to de­stroy the tapes. Rizzo, who has pub­licly sup­ported Haspel’s nom­i­na­tion, was stunned to learn that the tapes had been de­stroyed be­cause he thought that the is­sue was once again be­ing pre­pared for a se­nior-level de­ci­sion.

“In truth, I never thought that destruc­tion was a re­al­is­tic pos­si­bil­ity,” he wrote in his mem­oir, “Com­pany Man.” “There were too many peo­ple adamantly op­posed to the idea.”

When Rizzo re­ceived a mes­sage that pur­suant to head­quar­ters au­tho­riza­tion, the tapes had been de­stroyed, Rizzo sent a one-word email to one of the lawyers on his team who had been work­ing with Ro­driguez’s staff: “WHAT?!?!”

In his book, Rizzo says he was not cer­tain what caused the ques­tion of tapes to emerge again in Novem­ber 2005. But an email from Rizzo dis­closed by Se­nate in­ves­ti­ga­tors in­di­cates that the Levin pro­posal played a role: “Sen. Levin’s leg­isla­tive pro­posal for a 9/11-type out­side Com­mis­sion to be es­tab­lished on de­tainees seems to be gain­ing some trac­tion, which ob­vi­ously would serve to sur­face the tapes’ ex­is­tence,” Rizzo wrote to col­leagues on Oct. 31. “I think I need to be the skunk at the party again and see if the Di­rec­tor is will­ing to let us try one more time to get the right peo­ple down­town on board with the no­tion of our de­stroy­ing the tapes.”

In her con­fir­ma­tion hear­ing, Haspel in­sisted that the Levin pro­posal was not a driv­ing fac­tor: “What I re­call were the se­cu­rity is­sues sur­round­ing the tapes. I don’t re­call pend­ing leg­is­la­tion.” Ro­driguez and Haspel had ar­gued in­ter­nally that the video­tapes showed the faces of the in­ter­roga­tors and if made pub­lic could open them up to reprisals.

There was an­other fac­tor, ac­cord­ing to an ac­count Ro­driguez re­cently gave to ProPublica: On Nov. 2, The Washington Post ex­posed the CIA’s “black sites” for in­ter­ro­ga­tions, in­clud­ing in Thai­land, and on Nov. 3, a fed­eral judge in a ter­ror­ist trial or­dered the gov­ern­ment to search for video or au­dio of cap­tured mil­i­tants. By Nov. 4, Ro­driguez’s of­fice was draft­ing a ca­ble that led to the destruc­tion of the tapes.

Rizzo’s ac­count and a mem­oir by Ro­driguez sug­gest a more sub­stan­tial role for Haspel in this mat­ter. Haspel was one of “the staunch­est ad­vo­cates in­side the build­ing for de­stroy­ing the tapes,” some­one who “would raise the sub­ject almost ev­ery week,” Rizzo noted.

In May 2005, Rizzo wrote, he had again raised the ques­tion of de­stroy­ing the tapes with White House of­fi­cials and re­ceived a very neg­a­tive re­ac­tion. “The mes­sage from the White House re­mained clear: Do not do any­thing to the tapes be­fore coming back here first.”

When he told Ro­driguez and Haspel, he said, “they were crest­fallen, be­cause they were now on no­tice that the DNI [di­rec­tor of na­tional in­tel­li­gence], two suc­ces­sive White House coun­sels and the vice pres­i­dent’s top lawyer had weighed in strongly against de­stroy­ing the tapes. To top it off, I con­fided to them that Porter Goss [then CIA di­rec­tor] seemed dis­tinctly un­en­thu­si­as­tic about the idea too.” So what hap­pened? Ro­driguez, in his book “Hard Mea­sures,” said that “to say I was get­ting frus­trated would be a mas­sive un­der­state­ment.” So, he wrote, Haspel in early Novem­ber held a meet­ing with lawyers and asked two ques­tions: 1.) Is the destruc­tion of tapes le­gal? 2) Did Ro­driguez have the au­thor­ity to make that de­ci­sion on his own? “The an­swer she got to both ques­tions was: Yes.”

Rizzo, as he spoke to his “shaken” le­gal staff to un­der­stand what hap­pened, learned about Haspel’s two ques­tions and the lawyers’ re­sponse. “Both of their an­swers were tech­ni­cally ac­cu­rate, as best I could tell,” he wrote. “But that was be­side the point, and Jose had to have known it. He had been on no­tice by me for three years that the fate of the tapes was not his call.”

Morell, in his book “The Great War of our Time,” noted that a crim­i­nal probe led by spe­cial prose­cu­tor John Durham de­cided not to bring charges be­cause “Ro­driguez has been told he had the le­gal au­thor­ity to de­stroy the tapes. Durham con­cluded, how­ever, that such le­gal au­thor­ity had not ex­isted and that Agency lawyers had erred in their le­gal judg­ment.” (The Durham re­port has not been de­clas­si­fied.)

Ro­driguez dis­missed many of the warn­ings from across the gov­ern­ment not to de­stroy the tapes as opin­ions, not or­ders.

The fa­cil­ity in Thai­land was sent a ca­ble Nov. 4 es­sen­tially ex­plain­ing that it should ask for the video­tapes to be de­stroyed, us­ing “cut-and-paste” le­gal lan­guage pro­vided by Ro­driguez’s of­fice. A ca­ble was sent back on Nov. 5, with the ex­act right lan­guage, and Ro­driguez asked Haspel to draft the ca­ble “ap­prov­ing the ac­tion that we had been try­ing to ac­com­plish for so long.” He added: “The ca­ble left nothing to chance. It even told them how to get rid of the tapes. They were to use an in­dus­tri­al­strength shred­der to do the deed.”

Once Haspel com­pleted the ca­ble, Ro­driguez stud­ied it for a while: “I took a deep breath of weary sat­is­fac­tion and hit Send.”

Ro­driguez claims that Rizzo’s of­fice was sent a copy of the draft ca­ble telling the Thai fa­cil­ity to ask for per­mis­sion. But in Rizzo’s ac­count, Haspel and Ro­driguez had mis­led his of­fice. His lawyers told him “there was lan­guage in it that bore no re­sem­blance to what they had been work­ing on with Jose’s staff.”

A Nov. 10 email re­leased by the CIA, from an un­named of­fi­cial to then-CIA ex­ec­u­tive di­rec­tor Kyle “Dusty” Foggo, said: “I am no longer feel­ing com­fort­able” with the de­ci­sion once he had learned that Ro­driguez had not cleared it with Rizzo or the CIA’s in­spec­tor gen­eral. White House coun­sel Har­riet Miers was said to be “livid” about the ac­tion af­ter Rizzo in­formed her. Haspel’s name is redacted in the email, but it refers to her time spent over­see­ing the in­ter­ro­ga­tion fa­cil­ity in Thai­land.

“Ca­ble was ap­par­ently drafted by [redacted] and re­leased by Jose; they are only two names on it so I am told by Rizzo,” the email said. “Ei­ther [redacted] lied to Jose about ‘clear­ing’ with [redacted] and IG (my bet) or Jose mis­stated the facts. (It is not with­out rel­e­vance that [redacted] fig­ured promi­nently in the tapes, as [redacted] was in charge of [redacted] at the time and clearly would want the tapes de­stroyed.)”

“In my thirty-four year ca­reer at CIA, I never felt as up­set and be­trayed as I did that morn­ing,” Rizzo wrote.

In her tes­ti­mony, Haspel re­peat­edly in­sisted that Ro­driguez de­cided on his own to de­stroy the tapes and she was un­der the im­pres­sion that he would first clear it with the CIA di­rec­tor.

In­ter­est­ingly, Ro­driguez in his mem­oir does not in­di­cate that he had such a mis­un­der­stand­ing with his chief of staff. In­deed, in an in­ter­view with ProPublica pub­lished on Wed­nes­day, he said he told her that he would take mat­ters into his own hands. He told her that the agency was just going to kick the can down the road and to­gether, he said, they worked out a plan to fi­nally re­solve the prob­lem, which in­cluded ask­ing the lawyers whether Ro­driguez could or­der the destruc­tion of the tapes.

“She was con­cerned that I was tak­ing this risk on my own — that I was putting my­self in this sit­u­a­tion,” Ro­driguez re­called to ProPublica. “She didn’t say, ‘Don’t do it.’ She may have thought I was going to talk to more peo­ple about it be­fore hit­ting ‘send,’ but I had made up my mind that I was going to fol­low through.”

Haspel de­nied that the con­ver­sa­tion ever took place.

The Pinoc­chio Test

This sit­u­a­tion does not eas­ily lend it­self to Pinoc­chios, given the con­tra­dic­tory rec­ol­lec­tions. But the Morell re­view does not re­solve those con­tra­dic­tions. Haspel clearly was heav­ily in­volved with the ef­fort to de­stroy the tapes, such as ask­ing week af­ter week about the is­sue, get­ting the le­gal guid­ance sought by Ro­driguez and draft­ing the ca­ble order­ing the destruc­tion of the tapes.

Haspel in­sists that she thought Ro­driguez would not act be­fore dis­cussing the mat­ter with CIA di­rec­tor Goss. If so, it’s un­clear why a draft ca­ble order­ing the tapes de­stroyed was nec­es­sary for Ro­driguez to dis­cuss the is­sue with Goss. More­over, why would Haspel need to ask lawyers whether Ro­driguez had the le­gal au­thor­ity to de­stroy the tapes if he had in­tended to ask Goss for per­mis­sion?

Read­ers can judge for them­selves whether Haspel should have re­al­ized that Ro­driguez would not meet with Goss be­fore telling the Thai­land fa­cil­ity to act, given the steps she and her boss had al­ready taken be­fore he pushed the send but­ton on the ca­ble she had writ­ten.


Gina Haspel, the nom­i­nee for CIA di­rec­tor, ap­pears be­fore the Se­nate In­tel­li­gence Com­mit­tee last week. In late 2002, Haspel over­saw a se­cret fa­cil­ity in Thai­land where one al-Qaeda sus­pect had been wa­ter­boarded. An­other de­tainee was wa­ter­boarded be­fore she got there.

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