Terror Watch: The CIA's Top Lawyer

A CIA lawyer who played a key role in approving some of the agency's most controversial post-9/11 operations—including the use of interrogation techniques that have been criticized as torture—is scheduled to be grilled in public next week when he appears before the Senate Intelligence Committee for confirmation as the agency's general counsel.

John Rizzo, who served for years as the principal legal advisor for CIA covert operations, was first nominated by President Bush to the agency's top legal post in March 2006.  But his confirmation stalled for more than a year because of a protracted dispute over the Bush administration's refusal to give the Intelligence Committee access to secret documents relating to the agency's handling of high-value Al Qaeda detainees and other terror suspects.

These documents included materials related to the CIA's use of so-called "enhanced" interrogation methods, such as waterboarding—a practice in which a prisoner is made to believe he will be drowned. The committee also sought documents relating to "secret" prisons where agency officers allegedly detained and questioned terror suspects, as well as documents about the CIA's involvement in "extraordinary rendition"—a practice in which agency operatives transported captured terror suspects to foreign countries where they were allegedly subjected to torture.

Congressional officials (who asked not to be identified talking about non-public matters) told NEWSWEEK that Democrats on the committee recently decided to allow Rizzo's confirmation hearing to go ahead after the administration finally turned over some of the documentation they had been seeking.

Rizzo's precise role in formulating the policies in question is unclear— and is likely to get some rare public probing at next week's hearing.  Sen. Dianne Feinstein of California, a Democrat who serves on the Intelligence Committee, told NEWSWEEK: "I will be very interested in hearing about Mr. Rizzo's involvement and his rationale for the legal guidance he provided. In my view, the detention and interrogation procedures that resulted from this decision have been enormously damaging. The committee needs to take this into account when considering whether to confirm him as general counsel." Sen. Russ Feingold of Wisconsin, another committee Democrat and frequent administration critic, also plans to question Rizzo closely. "I expect Mr. Rizzo to be asked questions about the CIA's detention and interrogation program, which I have opposed on legal, moral and national-security grounds," Feingold told NEWSWEEK. "And given this administration's willingness to violate the law and keep Congress in the dark, as we saw with the NSA's warrantless wire-tapping program, it is particularly important for Mr. Rizzo to provide assurances that as general counsel he will ensure that the CIA respects the laws that Congress writes and will not rely on the administration's theory of inherent constitutional authority to violate the law."

Robert Baer, a longtime CIA case officer who had direct dealings with Rizzo, described him as a "survivor" who has weathered a series of controversies over the years, dating back to the Iran-contra affair. One of his hallmarks is that Rizzo "never puts his name on anything. When difficult decisions come up, he bucks it off to a deputy," according to Baer, who left the agency in 1997 and has since written a best-selling book about it.

But even more significant than Rizzo's role in shaping past policies, according to human-rights groups, is what clues he might give at next week's hearing about future CIA practices. The Pentagon, for example, has already forsworn the use of "enhanced" interrogations. Officials there concluded that such practices are largely counterproductive and have committed themselves to employing more standard methods, as spelled out in a revised Army Field Manual. But so far as is publicly known, the CIA has avoided taking the same steps, an apparent reflection of the divisions within the Bush administration between Vice President Dick Cheney and those within the State Department, who have concluded that extreme interrogation techniques have tarnished America's image abroad. "The key question for the CIA is whether it is going to take itself out of enhanced interrogations," said Kenneth Roth, executive director of Human Rights Watch, a group that has been critical of U.S. counterterror policies.

U.S. and international political debate about the CIA's counterterror practices post 9/11 heated up last week, following the release of a report by an investigator for the Council of Europe, an interparliamentary group that oversees the European Court of Human Rights. The report condemned the agency for allegedly abusing Al Qaeda prisoners in "secret prisons in Eastern Europe" and for abducting terror suspect and rendering them to countries that practice torture.

"What was previously just a set of allegations is now proven," said the report, which was written by Dick Marty, a former Swiss prosecutor who currently serves as an elected member of the Council of Europe. The report continued: "Large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice.  … Some individuals were kept in secret detention centers for periods of several years, where they were subjected to degrading treatment and so-called 'enhanced interrogation techniques' (essentially a euphemism for a kind of torture)."

CIA spokesman George Little said that the agency viewed the European report as "biased and distorted." He added, "The CIA's counterterror operations have been lawful, effective, closely reviewed and of benefit to many people, including Europeans, in disrupting terrorist plots and saving lives."

CIA Director Gen. Michael Hayden has indicated he strongly backs the renewed effort to confirm Rizzo permanently as the agency's general counsel. "Director Hayden strongly supports the president's nomination of Mr. Rizzo," said Paul Gimigliano, another CIA spokesman. "Mr. Rizzo has excellent qualifications for the post and would be the first general counsel to come up through the ranks of the CIA.  He is an intelligence professional and a career public servant. … With more than three decades of service as an agency attorney, Mr. Rizzo knows better than anyone the full range of complex legal issues that influence intelligence operations in a democracy."

Before 9/11, the CIA had no program or facilities for detaining or interrogating suspects of any kind (though the agency had participated in "rendition" operations sporadically over the years). One current and one former U.S. counterterrorism official (who, like other officials did not want to be named talking about internal deliberations) said that when the White House first asked the agency to assume responsibility for holding and questioning high-level suspects, the CIA consulted with foreign intelligence services with extensive experience handling accused terrorist detainees—such as agencies in Israel, Britain and Egypt. They also contacted Defense Department units responsible for teaching U.S. military personnel to withstand interrogation if they are captured. The CIA appears to have drawn up its list of "enhanced" interrogation techniques from the practices used by these organizations.

An official familiar with the history of the post-9/11 CIA programs maintained Rizzo would act on his own initiative if he thought the agency was going to step over any legal red lines. "Rizzo would reject a proposed interrogation method if he thought it wouldn't pass legal muster," this official said. On the other hand, Rizzo appears to have deflected responsibility for approving some of the agency's most controversial decisions. Indeed, it was the CIA's decision to seek legal guidance for such controversial techniques as waterboarding that led to the crafting of a 2002 Justice Department document known as the "torture memo." This legal opinion essentially green-lighted most of the extreme detainee-handling practices the agency ultimately adopted. Capitol Hill sources declined to say whether this memo, which remains highly classified, is among documents that the administration has turned over to the Senate Intelligence Committee.

One administration official familiar with the reasons behind the yearlong delay in Rizzo's confirmation indicated that the principal argument between senators and the administration related more to documents under the control of the Justice Department than files controlled by the CIA itself. The White House has taken a hard line against turning over to Congress the most sensitive Justice Department counterterrorism legal opinions. A Congressional official said that once the Democrats took over Congress earlier this year, the CIA started turning over most, if not all, of the requested documents in the agency's possession. But two Congressional officials indicated that other departments, particularly the Justice Department, are still holding back relevant documents.

Rizzo will be questioned both in public and in secret by Intelligence Committee members. Because many critical—and potentially embarrassing—details of the CIA's detention, interrogation and rendition programs remain secret, the most important questioning is likely to occur after committee members retreat behind closed doors. One congressional staffer said that while Sen. Jay Rockefeller, chairman of the Intelligence Committee, is currently uncommitted on whether to vote for Rizzo's confirmation, the senator has received favorable endorsements of Rizzo from people Rockefeller respects. But while many Democrats and Republicans alike on the committee appear at the outset to be favorably disposed, or at least not openly opposed, to Rizzo, a congressional official said he could face additional delays if members got the impression that Rizzo's responses under questioning lacked candor.

Barring a woeful performance by Rizzo, the Intelligence Committee is likely to approve his nomination, according to two congressional sources (although one GOP source noted that some leading Republican senators regard the nominee with "indifference"). But the sources added that the appointment could again fall hostage to continuing disputes between the Democrat-controlled Congress and the Bush White House once it reached the Senate floor.

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