by John Rizzo. New York, NY: Scribner, 2014. 336pp. Hard Cover $28.00. ISBN: 9781451673937.Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (Missouri). Tobias.Gibson [at] westminster-mo.edu.
pp.163-168
In COMPANY MAN, John Rizzo offers insight and details about his legal career at the Central Intelligence Agency. This view affords the reader an incredible opportunity to (partially) pull the curtain back and look into the legal underpinings of the CIA’s work. Rizzo, as a veteran lawyer with more than three decades experience within the CIA, and having experience in three different “law offices” within CIA, serves as an excellent tour guide.
Rizzo’s career at CIA begain in the wake of the Nixon adminstration; in 1975 and 1976, the Senate Church Committee investigated alleged abuses at CIA. As a result of the Committee’s findings, several new attorneys were ushered in to Langley; Rizzo was among the first new hires. Rizzo’s career also directly impacted, and was impacted by other controversial epochs at CIA and involving the intelligence community more broadly. Rizzo was largely responsible for the clearing much of the evidence presented during the Iran-Contra hearings. Likewise, he served as the senior career attorney, and often as acting General Counsel-CIA (the lead attorney at the Agency) during times of tremendous cotroversy and upheaval. He was the legal architect of CIA’s detention and interrogation programs in the wake of 9/11. It was Rizzo who first reached out to the Department of Justice, in particular the Office of Legal Counsel, for legal support for “enhanced interrogation techniques.” The resulting OLC memoranda, the John Yoo-authored and Jay Bybee-signed “torture memos” (collected in THE TORTURE PAPERS (2005)) are likely familiar to many readers of the the LPBR. President George Bush nominated Rizzo to serve as General Counsel, the first time a career attorney had ever been so nominated –only to have the nomination derailed. Rizzo’s nomination failed due to his connection to the torture memos; once made public, the OLC rescinded legal support, and there was heated debate between the executive and legislative branches, and perhaps most importantly, in the “court of public opinion.” In addition to specific techniques of interrogation, Rizzo and other adminstration lawyers illustrate a common question about the role of government attorneys: help the client find a way to do what they want to do, or counsel clients about the limits of the law. While he stayed on in the immediate aftermath of the failed nomination, and administration change, Rizzo’s career at CIA would clearly never be the same. Rizzo left CIA in the early Obama adminstration.
Very obviously, due to the length of his tenure and the heights to which he rose, Rizzo’s view from within the CIA and its legal offices and proceedings, are worth the time spent reading this book. [*164]
Despite his time at CIA, there are some very necessary caveats on style and substance regarding this book. First, it is essentially written from Rizzo’s memory, as many of the details in the book are based off formal and informal conversations or regard documents whose exact contents are not necessarily declassified. It is also written from Rizzo’s perspective, which means that prior reviewers have taken him to task for the lack of a wider view, or simplicity of self-refection (Kaplan; Altschuler; Coll). Third, as with all Agency biographies, the book has been subject to the vigorous content oversight. So, while the book is illuminating on many subjects, there are moments where the reader is left to wonder what was left unsaid, or perhaps was said but did not meet approval from the Agency review. Finally, while much of the discussion is based around very public sources, such as President George W. Bush’s memoir or Rizzo’s own testimony in his public nomination Senate hearing regarding his General Counsel nomination, much of the information is left without citation or collaboration. This is both a strength and weakness of the book. On the one hand, as a scholar, evidence matters to me. On the other hand, this book illuminates meetings that previously one was unaware of, and in which Rizzo was one of two or three participants. While I cannot corroborate much of what is discussed with the book, the mere fact that it is now in the public record makes this book an exceptionally valuable resource. What this book does well, among other things, is explain the inner workings of the processes of the most controversial CIA programs of the past decade.
The book begins with discussion of how Rizzo resisted the destruction of CIA tapes documenting the interrogation and detention of Abu Zubaydah. There are many points within the chapter, but here are some of the most important: Rizzo did not allow the tapes to be destroyed. In fact, he repeatedly said no, based in large part because he “thought destroying the tapes was fraught with enormous risk to the Agency” (6). This indicates that good lawyers with CIA, as with attorneys in private practice, lend legal vision based, in part, on the wisdom of the proposed action. Rizzo was so convinced of this legal and policy view that he sought and the received the support of attorneys and political appointees throughout the administration including the newly appointed General Counsel Scott Muller, White House Counsel Alberto Gonzalez, vice president counsel David Addington, and the national security advisor’s counsel John Bellinger. All categorically said that the tapes were not to be destroyed. Director of National Intelligence John Negroponte was against the destruction of the tapes. In the end, the tapes were destroyed, because Jose Rodriguez, the chief of the Counterterrorism Center at the time the tapes were made went to two junior attorneys for help in drafting a cable authorizing the destruction of the tapes. A cable then was sent, signed by Rodriguez, and the tapes were destroyed. In short, according to Rizzo, Rodriguez acted without his knowledge. More importantly, Rodriguez “had chosen to ignore and defy the White House, the director of national intelligence and the director of the CIA” (p.19).
From a legal perspective, this is an interesting debacle. First, of course, there is the assistance from OGC [*165] lawyers. Yet, according to Rizzo the attorneys signatures did not appear on the cable transmission. This is important because three generations of CIA operatives know “To cover your ass, get a lawyer’s name on your cable. No names of CIA lawyers were on the coordination line of the cable…. My guys never saw it before it went out” (p.19). (This becomes important again, as will be discussed further below.)
Rizzo also details his role in the development of the enhanced interrogation techniques the CIA used, most notoriously, on Zubaydah and Khalid Sheikh Mohammed. Among the most interesting portions of his discussion here is the point that “there was … a technique so gruesome that the Justice Department later stopped short of approving it” (p.185). This is interesting for two reasons. First, the approved techniques included waterboarding and sleep deprivation up to eleven days. Second, other reports say that there were multiple techniques that failed to meet OLC approval, rather than just one. Jay Bybee himself said these techniques included “dousing [detainees] with cold water to keep them awake and forcing them to wear diapers or soil themselves” (Savage and Shane).
Rizzo also details, with some macabre humor, a meeting on June 20, 2007 with Secretary of State Condoleezza Rice, to detail the newly “slimmed down” enhanced interrogation techniques. Rizzo took the two original designers of the program, contract psychologists hired by CIA (who also were the original designers of the EIT program generally, that Rizzo offered legal support for with the aid of OLC in 2002). The psychologists apparently demonstrated some of the techniques, including slapping and acting out the sleep deprivation methods. Harkening back to Rice’s shock at one of the aspects of the early techniques used, Rizzo wryly concludes: “Thank God we didn’t keep nudity as one of the EITs” (p.270).
There are also more nuanced additions in this book, including the type of law that attorneys in the national security enterprise practice. According to Dakota Rudesill, professor at Moritz College of Law, at the Ohio State University, national security law has impacted legal education because within this specialized area of legal study and practice, the traditional Socratic approach of teaching the law through detailed discussion of case law simply doesn’t work. This is true because national security law contains more focus on nontraditional processes, especially since national security policy is conceived, driven and implemented primarily by Article I and II institutions, actors and processes that aren’t in courts.
COMPANY MAN confirms Rudesill’s point. This book is full not of case law, but executive orders, national security directives, presidential findings and memorandums of notification. Interbranch dispute is not oral arguments before the federal bench, but testimony before congressional committees. For example, one of the most interesting chapters in the book stems from the Iran-Contra hearings during the Reagan administration. Rizzo discusses how he watched the hearings on television, in his office, sitting by the phone, so that he could offer immediate legal advice about whether a particular piece of classified information could be aired on national television. [*166]
While not traditional legal fare, as scholars of law, politics, policies, legal processes and perhaps more importantly, as professors who send students to law school or have national security law experts as colleagues in law schools, understanding the type of law practiced within the intelligence community and other related enterprises matters.The rise of the national security lawyer is evident, if nothing else, due to the proliferation of National Security Law areas of study in law schools throughout the country. Highly regarded law schools such as Duke and Virginia have centers for the study of national security law. Moritz, American, Texas, Ohio Northern, William Mitchell and several other law schools have faculty who specialize in national security law. Blogsites, such as Lawfare, have recently been founded by renowned scholars. In short, it is imperative that today’s legal scholars are aware that law in this field exist, and that the sources of this law go well beyond traditional case law. [my edits will make these five paragraphs into two (2 +3)]
Rizzo spends a fair amount of the book detailing the sizeable increase of attorneys within the Central Intelligence Agency. When he was hired, in 1976, he was the eighteenth attorney at CIA. By 1982, there were about fifty lawyers in Office of General Counsel. When he left, there were more than 200 in the OGC. Other legal outlets with CIA had also expanded, including on the operations side. In 1979, Rizzo became the lone attorney directly advising the Director of Operations. At that time, Rizzo was the only CIA attroney working “outside the physical confines of the OGC” (p.71). Currently, Rizzo estimates that about sixty “on-site” legal positions are dispersed throughout CIA. According to Rizzo, “[a] scandal would be awful for the Agency institutionally, but it would be great for the OGC’s growth potential” (p.45).
A unique opportunity to find the truth exists at this moment. As I noted in the introduction of this review, COMPANY MAN depends to great extent on the memory and vantage point of one man. Much of the material in the book is currently being played out, very publically, between the Senate Select Committee on Intelligence (SSCI) and the director of the CIA, John Brennan. The fight is over a 6,200-6,300 page committee report on the CIA’s post-9/11 EIT and detention programs. SSCI chair Diane Feinstein has accused, on the Senate Floor, the CIA of “hacking” computers that committee staffers used in conducting document review while CIA headquarters, because one of the documents used in the report was not cleared by CIA for review. The CIA accuses the staffers of illegally tapping into CIA computers to gain access to the document in question. Either way, the disputed document seems to undercut Director Brennan’s attempted rebuke of the committee report, as Senator Mark Udall says the document is “consistent with the Intelligence Committee’s report” that the programs were not of value and the CIA officials were not honest in reporting to Congress (Mazzetti).
One of the issues that Senator Feinstein has with CIA is that then-acting General Counsel Robert Eatinger referred the matter of the SSCI staffers’ use of classified documents to the Department of Justice’s Criminal Division. Feinstein [*167] accused Eatinger of intimidation, and noted that he was one of the two attorneys who helped to draft the language leading to the destruction of the CIA interrogation tapes detailed above. In fact, Feinstein notes that Eatinger’s name is mentioned some 1,600 times in the SSCI report (Dowd; USA Today). At stake in the struggle between SSCI and CIA are two things. First, there is the opportunity to learn whether Rizzo’s conclusion that his “guys” were not involved in the cable that led directly to the destruction of the interrogation tapes is true, or whether Eatinger, and his CTC colleague, were involved. If the report is declassified, as some are calling for, much of Rizzo’s recollection will be put to the test.
Second, and this strikes me as important, it would appear that Feinstein is grandstanding in regard to Eatinger’s referral of the SSCI staff actions to the Criminal Division. (Due to my research about oversight of the intelligence community, I am sympathetic to her claims of CIA overreach generally.) According to Rizzo, “Typically, when the Agency learns about a possible violation of U.S. law… even by someone not affiliated with the CIA, the Office of General Counsel prepares a ‘crimes report’ letter to the head of the DOJ criminal division” (pp.149-150; my emphasis). This is corroborated by Jack Goldsmith (2014), former head of the Office of Legal Counsel and Harvard law professor, who points to the statutory source of this norm.
There is, however, the serious matter that the CIA may have violated the speech or debate clause of Article I. The clause is meant to protect legislators from the executive branch while fulfilling the course of their duty. As Steven Aftergood (2014) recently noted, there is some case law that suggests that the CIA, by tapping into the computers used to research the EIT program may have breached the constitutional protections afforded Congress and its staffers.
In short, reading John Rizzo’s book, and being more familiar with the scope of law within the area of national security law would help citizens and reporters to process the actions and accusations of our nation’s elected and appointed leaders.
No matter the outcome of the SSCI/CIA dispute, COMPANY MAN is an excellent read. While there are shortcomings and questions, some of which are detailed above, the book is a valuable resource for understanding the sources of law in clandestine services. It also offers insider details in the legal portion of the war on terror.
REFERENCES:
Aftergood, Steven. March 24, 2014. “Did CIA Violate the Constitution’s Speech or Debate Clause?” Secrecy News: Federation of American Scientists. http://blogs.fas.org/secrecy/2014/03/speech-or-debate/ (accessed March 26, 2014).
Altschuler, Glenn C. January 14, 2014. “’Company Man’ by John Rizzo.” BOSTON GLOBE, https://www.bostonglobe.com/arts/books/2014/01/14/book-review-review-company-man-thirty-years-controversy-and-crisis-cia-john-rizzo/SwnIUlomoRhN8eKGtTtHlM/s [*168]tory.html (accessed March 6, 2014).
Coll, Steve. January 2, 2014. “The C.I.A.’s Lawyer: Waterboarding and Memory.” NEW YORKER, http://www.newyorker.com/online/blogs/comment/2014/01/a-new-memoir-by-john-rizzo-the-cias-lawyer.html (accessed March 6, 2014).
Dowd, Maureen. March 12, 2014. “The Spies Who Didn’t Love Her.” NEW YORK TIMES, A25.
Goldsmith, Jack. March 13, 2014. “The SSCI Fracas and the CIA’s Duty to Make Criminal Referrals to DOJ.” LAWFARE, http://www.lawfareblog.com/2014/03/the-ssci-fracas-and-the-cias-duty-to-make-criminal-referrals-to-doj/ (accessed March 13, 2014).
Kaplan, Fred. January 3, 2014. “The Spy Who Came Into the Fold.” NEW YORK TIMES, http://www.nytimes.com/2014/01/05/books/review/john-rizzos-company-man.html (accessed March 6, 2014).
Mazzetti, Mark. March 5, 2014. “C.I.A. Inquiry is Set in Clash on Detentions.” NEW YORK TIMES. A1.
Rudesill, Dakota phone interview with Tobias T. Gibson (August 22, 2013)
Savage, Chalie and Scott Shane. July 15, 2010.“ Bush Aide Says Some C.I.A. Methods Unauthorized.” NEW YORK TIMES http://www.nytimes.com/2010/07/16/us/politics/16interrogation.html (accessed March 17, 2014).
USA Today editorial board. March 13, 2014. “In conflict with Congress, CIA has a lot of explaining to do.” USA TODAY, 8A.
Copyright 2014 by the Author, Tobias Gibson.
