The Reluctant Spy Read online

  That didn’t mean we were operating with no guidance at all. When I got to Pakistan in late January 2002, and we started to interrogate people, our marching orders were fairly straightforward: We knew that we weren’t allowed to hit anyone, to threaten anyone, to torture. To the best of my knowledge, we didn’t violate those strictures, although some of us came close on various occasions. What became clear fairly soon was that it would be very difficult to get useful information from this new breed of enemy, these true believers in a radical cause for whom death meant religious martyrdom and a one-way ticket to paradise.

  Still, violating even a terrorist’s human rights and, potentially, the Geneva Conventions by resorting to torture is no small thing. And harsh methods, as torture is euphemistically known, aren’t nearly as effective as their advocates maintain because most people will confess to almost anything, truthful or not, just to make the pain stop. You get information, to be sure, but its veracity is another matter. In practice, more empathetic psychological means, wimpy as that may sound, can yield much better results.

  In the early part of 2002, as we were scooping up enemy combatants by the dozens, we were especially eager to find out where these guys had come from, how they had traveled to Pakistan, and what they intended to do there. Headquarters, interested in plugging holes, wanted us to figure out what routes these people had taken over or through the Hindu Kush—the mountains along the Afghanistan-Pakistan border. We had some success getting such information. But most of the time, we didn’t get much more. It seemed that every detainee had that standard story about coming to study Arabic, although it is not the language of Pakistan, and losing his passport on the way to the grand mosque. Perhaps 30 to 40 percent of these people acknowledged that they had received training in al-Qaeda’s Afghanistan camps, but to a man they insisted they were not members of al-Qaeda. Right, as if al-Qaeda issues membership cards.

  For most of them, when we asked if they had ever seen bin Laden, they would say “Sure. I saw him at a wedding reception in 2000, but I never spoke to him and I didn’t know anything about September 11.”

  So it went. Every once in a while, however, an enemy combatant would startle us with his candor. We had a Jordanian, for example, who freely admitted that he had been in Kandahar, Afghanistan’s second largest city and the Taliban capital, on September 11. Our interrogation went like this:

  “What did the people do when they heard that the United States had been attacked?”

  “They danced in the streets and they jumped up and down and sang songs,” he said.

  “What were you doing in Kandahar?”

  “I was working at an orphanage.”

  “Did you have contact with bin Laden?”

  “Yes, I did.”

  “What kind of contact?”

  “I went to the home where he was living and I pledged allegiance to him.”

  That struck us as an important admission from someone who hadn’t been coerced in any way, and it prompted me to ask him why he was answering all of our questions.

  “I’m your prisoner. I know I’m not getting out. It’s not going to do me any good not to answer these kinds of questions. But I would like for you to listen to one thing I have to say.”

  During the interview, I was working with Tom McHale, the New York Port Authority officer. In addition, there were a couple of Pakistanis present.

  “Okay, you’ve answered all my questions, and I don’t have any others right now.” I glanced quizzically at McHale, and he said he didn’t have any follow-ups at the moment either. “Please tell us what you have to say.”

  “I would like to invite you into the embrace of Islam.”

  “You want us to become Muslims?”

  “Yes,” the Jordanian said, “it’s the only way to save your souls. I would like for you to become Muslims and I will be your sponsor into Islam.”

  “Well, thank you,” I said. “I respect your being honest with me. But I’m happy with my religion.”

  He smiled slightly and nodded. Then he extended his hands, cuffed in front of him at the wrists, to shake our hands. That was it: The Pakistanis took him back to jail and we never saw him again. The episode reinforced for me and for Tom that tough-guy, in-your-face techniques with these particular prisoners might not yield nearly as much as earnest, direct conversation.

  AS WE KNOW now, various arms of the executive branch of our government—the National Security Council, the White House, and the Justice Department’s Office of Legal Counsel in particular—were wrestling with a central question: Given the assumption of significantly altered circumstances, was a new set of rules needed for the interrogation of stateless terrorists who had declared war on the United States and had already demonstrated a willingness to kill on a large scale? Other terrorist groups had expressed their enmity for the United States, but none had struck so successfully at the symbols of American power, and none had killed so many people. What’s more, the attacks on the Twin Towers in New York and the Pentagon in Washington were only the beginning, bin Laden and his al-Qaeda propagandists insisted. There were many signs, recovered documents, and even some physical evidence indicating bin Laden’s interest in acquiring weapons of mass destruction. If successful, would he actually use such weapons? The bet was that he would. In that event, did the old ground rules for interrogation make any sense when, say, harsher treatment of a terrorist might yield information that could prevent the death of thousands or even millions of Americans?

  Abu Zubaydah’s capture was something of a wake-up call because he was belligerent at the beginning and wouldn’t cooperate a bit. Eventually, that would change, after we handed him off to the group that flew him from Pakistan to another overseas location.

  At one point in the early summer of 2002, the Counterterrorist Center approached several CIA people with post-9/11 field experience and asked whether we wanted to be trained in what they called “enhanced techniques” for interrogation. We had some inkling of what these enhanced techniques entailed, enough to impel me to seek counsel from a top CIA officer I respected enormously. He suggested that these methods might well cross a dangerous moral and legal line, and I declined to be trained in them. Some of my colleagues accepted the invitation, and who could have blamed them at the time? Remember, this was still in the frantic months of mid-2002, when the prospect of another massive al-Qaeda attack, perhaps with biological or chemical weapons, seemed all too real. We needed actionable intelligence to prevent the next big one. Compared with kinder and gentler means of interrogation, these enhanced techniques of persuasion might get us what we needed.

  The results of enhanced interrogations remained officially off limits to the public until late summer of 2008, when the Justice Department, responding to a court order, released a five-year-old report by the CIA inspector general on the alleged abuses. That sparked one of those eye-of-the-beholder donnybrooks so endemic to political Washington. Attorney General Eric Holder ordered a preliminary inquiry to see whether actions by Agency interrogators or contractors warranted a full criminal investigation. Absolutely right, said CIA critics, who insisted the harsh methods were illegal and had produced questionable intelligence at best. Baloney, said former vice president Dick Cheney, who insisted enhanced interrogation had produced actionable intelligence that prevented terrorist acts.

  In fact, the report was heavily redacted, providing defenders and detractors alike just enough ammunition to make a modest case for their point of view. Cheney also repeated what had become something of a personal mantra: The Bush Justice Department had thoroughly reviewed the Agency’s proposed enhanced interrogation techniques and found them to be consistent with national and international law.

  Fortunately, we can take Dick Cheney’s word and measure it against an extraordinary set of documents declassified in 2009 by order of President Obama. These are the so-called torture memos—the chronology of meetings and the legal rationale that led to the use of enhanced interrogation techniques, especially on Abu
Zubaydah and two other high-profile detainees.

  I’m not a lawyer, but you don’t need to be schooled in the fine points of constitutional, statutory, and international law to recognize the deep cynicism threaded throughout the arguments made in the torture memos. Think Wonderland. Think a descent through the Looking-Glass:

  “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.”

  “The question is,” said Alice, “whether you can make words mean so many different things.”

  “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

  THE STORY OF the torture memos begins not long after we captured Abu Zubaydah in late March 2002. According to a narrative put together by the Senate Select Committee on Intelligence and declassified by Attorney General Eric Holder in April 2009, the CIA believed in 2002 that Zubaydah was withholding “imminent threat information” during his initial interrogation. In mid-May 2002, agency lawyers met with their counterparts at the National Security Council (NSC) and Justice’s Office of Legal Counsel (OLC) to discuss a possible new interrogation plan and potential legal obstacles to its implementation. Two months after that, on July 17, Director of Central Intelligence George Tenet met with National Security Adviser Condoleezza Rice, who told my boss that the CIA could interrogate Abu Zubaydah using the enhanced techniques, but only subject to a determination of legality by the OLC.

  The United States was then, and remains today, bound by certain national and international laws and rules on the treatment of prisoners. We are signatories, for example, to the UN Convention Against Torture (CAT), which seems pretty straightforward to me. In article 1.1, the CAT prohibits “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” Then there is title 18, section 2340A, of the United States Code, which prohibits torture committed by public officials. Section 2340 (1) defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody of physical control.”

  The first of the torture memos, dated August 1, 2002, and signed by Jay S. Bybee, then assistant attorney general and the head of the OLC, takes on Section 2340 and basically argues that ducks don’t quack and that apples are oranges if government lawyers say they are—that severe pain and suffering and specific intent are words subject to manipulation with a particular goal in mind. The memo is framed as a response to the CIA’s request for guidance and plays back what the agency proposes to do under the rubric of “enhanced interrogation.” By now, the memos have spent months in the public domain, and Americans and others interested in what is done in our country’s name have become familiar with these techniques. But it’s worth reviewing them in the context of the memo that gave them life.

  That first memo, drafted in part by OLC lawyer John Yoo, describes ten techniques that progress up a ladder of intensity. On the lowest rung is the “attention grasp,” a standby in station houses everywhere, in which the interrogator grabs his prisoner by the lapels or collar with both hands and draws him close “in a controlled and quick motion.” Most of us could live with that, if the grilling went no further. But it does.

  Next comes “walling,” a logical extension of the attention grasp, in which the interrogator takes the individual in his custody and slams him hard against a wall built for the express purpose of making a loud noise on contact. “During this motion,” Bybee writes in the memo, echoing what CIA lawyers explained to him, “the head and neck are supported with a rolled hood or towel that provides a c-collar to help prevent whiplash.”

  The “facial hold” and the “insult slap,” rungs three and four on the ladder, are more or less what they seem to be—the latter designed “not to inflict physical pain that is severe or lasting.” No, its purpose is to “induce shock, surprise, and/or humiliation.” “Cramped confinement” is another technique that leaves little to the imagination: The detainee is kept in a dark space for up to eighteen hours at a time, depending on the size of the “container.” The sixth technique, “wall standing” to induce muscle fatigue, requires the detainee to stand four or five feet from a wall, with feet spread to shoulder width and arms extended so that the fingers rest on the wall. The fingers support all the weight, and the detainee is not permitted to move or reposition hands or feet. Other stress positions can be employed, all of them designed “to produce the physical discomfort associated with muscle fatigue.”

  “Sleep deprivation,” a hoary tactic used in interrogations throughout the ages, ranks as the eighth technique Bybee approves as legal in the August 2002 memo, although he cites conditions: “You [CIA officials] have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.”

  The ninth technique: Zubaydah apparently had a case of entomophobia—a fear of insects—so his interrogators sought and got approval to place him in a “cramped confinement box with an insect.” The bug would be harmless, but Zubaydah would be told that his temporary boxmate was a stinging insect.

  The last resort was “waterboarding,” the harshest of CIA’s enhanced techniques. Most of us know what waterboarding is, given the public furor it has generated since its use was first exposed. But I think it’s important and instructive to consider Bybee’s dispassionately clinical description of the practice. “In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet,” he writes in the memo, again reflecting what the CIA has asked that he approve as legal interrogation.

  The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e. the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated.

  According to reporting by The New York Times and others, the people pitching these enhanced techniques to the decision makers in the White House and Justice Department had no sense of their provenance. They apparently did not know that waterboarding was a form of torture favored by interrogators during the Spanish Inquisition and, more recently, by the Communists during the Korean War. The common thread was motive: In fifteenth-and sixteenth-century Spain and twentieth-century Korea, the interrogators sought conversions or false confessions that could be used for propaganda purposes.

  The Korean experience is why the U.S. military now uses versions of enhanced interrogation techniques on pilots and special operations personnel in a program called SERE, for Survival, Evasion, Resistance, and Escape. Our government wants to give our people a sampling of what they might have to endure if they are captured and interrogated by an enemy inattentive to the fine points of the UN Convention Against Torture. But there is one big difference between what our pilots and special ops people undergo and what we do to detainees under our control: Our folks know that SERE, as tough as it is, is still a training exercise. In contrast, the entire point of enhanced interrogation on detainee
s is to convince them that it’s real—physical and mental anguish without finite end. The whole idea is to induce a sense of hopelessness, cut short only if they choose the option of cooperation with their tormentors.

  In the Bybee memo, and in three others from May 2005 signed by the OLC’s Steven G. Bradbury, the lawyers argue that none of these enhanced interrogation techniques, used separately or in combination, amount to torture as CIA advocates have attested to them. The reasoning turns on the parsing of some key words. Throughout the memos and their antiseptic descriptions of what is proposed for recalcitrant detainees, great weight is accorded to the fact that medical and psychological personnel would be on hand to monitor the administration of each and every enhanced technique. The medical doctors and shrinks would safeguard the process, presumably by spotting the precise moment mere physical or mental pain or suffering is about to graduate to “severe,” thus becoming torture and violating the law. Even past that point, the action might not clear the bar and qualify as torture if the interrogator had not “specifically intended” it as such.

  By the time the last memo was signed by Bradbury on May 30, 2005, the hierarchy of enhanced techniques had grown to fourteen, with waterboarding still atop the pyramid as the interrogators’ last, best option. Now, having argued that none of these techniques can be construed as torture so long as the interrogators are careful about the severity and intent of their actions, the lawyers focus on what I think may be the ultimate loophole: jurisdiction.