The Family Jewels (24 page)

The Year of Intelligence certainly impressed John A. Rizzo. With service as a Treasury Department lawyer under his belt, Mr. Rizzo decided the Central Intelligence Agency was going to need more attorneys. Later he cited the Church Committee and Rockefeller Commission as specific factors in his decision to join CIA. John Rizzo came on board just two months after George Herbert Walker Bush replaced Bill Colby at the head of the agency. The wounds of the Year of Intelligence were fresh and the system of congressional oversight about to be born. Rizzo began as a lawyer in the Office of General Counsel. A lot of eye-opening stuff happened during
that formative era. The clandestine service got in trouble over its handling of Soviet defector Nicolas Shadrin, grabbed right out of its hands during a trip to Vienna, and there came the final resolution of the Nosenko case. The CIA was in the hot seat during the Iran Hostage Crisis, and it began covert operations in Nicaragua and Afghanistan. Rizzo moved up to OGC's front office soon after Bill Casey took the helm at Langley.

Born in Worcester of Irish-Italian parents, John Rizzo had grown up in Boston, where his father was a department store executive. He went to Brown University, joined a fraternity, and acquired a taste for flashy clothes. Rhone wine and French cooking were his style too. John Rizzo loved Washington. His law degree came with honors from George Washington University. He lived in a Virginia suburb. Rizzo worked customs enforcement and narcotics issues for three and a half years at the Treasury Department. He spent his entire working life in Washington. At CIA, the legal bloodhound was highly regarded in the Directorate of Operations. One subordinate described Rizzo to a journalist as a classic DO lawyer, admiring the case officers: “They trust him to work out tough issues in the gray with them.”
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The Iran-Contra affair (
Chapter 9
) became another of John Rizzo's indelible experiences. Tremendous scandal broke out in the summer of 1984 over the CIA's mining of ports in Nicaragua, and shortly afterwards the thirty-seven-year-old lawyer moved over to the agency's Inspector General office. In that capacity he investigated alleged wrongdoing at a couple of CIA stations and participated in several of the IG's periodic reviews of agency components. In February 1986, Rizzo was assigned to the congressional liaison office as deputy chief. That fall the Iran-Contra affair broke into the open with revelations about U.S. actions in both Nicaragua and Iran. Rizzo was in the thick of the action. Director Casey appeared before the Senate Intelligence Committee
in November 1986, presenting misleading testimony. Then came reports a White House aide who had acted in close concert with Casey had been destroying records related to the affair, followed by news the CIA had failed to inform Congress of covert action approvals. Summoned to another hearing to explain himself, Casey called on John Rizzo to help prepare him. Rizzo stood in the hallway outside Casey's door, waiting to enter and brief the director, when Casey suffered a seizure and collapsed on December 15, trapped by the intolerable tensions of a web of fabricated chronologies and misleading testimony. The classic CIA lawyer would tell a Minnesota law school audience his greatest regret had been his failure to press harder, be tougher with the operations people, to avoid the agency being swept up in Iran-Contra. By his own account, the ordeal left Rizzo with an abiding sense that reporting fully to the congressional committees was not only the law, it was politically savvy and good for the Central Intelligence Agency.
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But working out problems for CIA operatives could also mean cutting corners. As deputy general counsel for operations, in 1990 attorney Rizzo would have had a role in issuing the order for the CIA to destroy the records of its mail-opening project HT/Lingual. One source described him as a “legal enabler,” a fixer, searching for ways to make possible what the operators wanted to do. In Rizzo's construction, an agent working for the CIA—“in behalf of the United States” in the meaning of the assassination prohibitions—could legally participate in a death squad so long as he made sure to miss when he fired.
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That was Rizzo's stance in the Guatemala fiasco. His approach landed the dedicated lawyer in hot water when it came to the war on terror. It was Mr. Rizzo, by then acting General Counsel, who stood at ground zero in the entire matter of the Justice Department opinions authorizing CIA torture. That involved the question of how accurately the agency—in the person of John Rizzo—had described its
interrogation techniques. Even beyond that, however, Rizzo's participation in the agency's drone war placed him athwart the line of three decades of presidential prohibitions on CIA assassinations.

Had it not been for CIA ingenuity, the lawyer might never have faced this quandary. The “unmanned aerial vehicle,” now familiar as the “drone,” had been an important aviation technology program through the 1990s. The air force and CIA collaborated on one version of this craft called the Predator, first used over the Balkans in 1995, which became fully operational soon afterwards. The drone was guided remotely by a “pilot” monitoring its sensors, at first from a van at the airfield, but with improved communications after 2000, from facilities in the continental United States. Reconnaissance was Predator's mission. Its cameras could scan the ground in great detail from ten thousand feet in altitude and broadcast the imagery to controllers and troops on the ground. The air force, anxious to preserve the combat role of manned aircraft, resisted arming the Predator. Langley, on the other hand, proved much more enthusiastic. The CIA had been frustrated several times in the 1990s when it made sightings of terrorist Osama bin Laden, but was powerless to act on the information. “Armed reconnaissance,” with a drone that could see the target, then attack immediately, could be an ideal solution. When he headed the Counter-Terrorist Center through and past the Afghanistan invasion, Cofer Black pushed hard on the development of an armed Predator.

Director George Tenet paid attention. The effort against Al Qaeda had become CIA's most important operational mission. The agency deployed a Predator scout unit to Pakistan in the fall of 2000, using air force crews and an air force–CIA support and analysis team. Fifteen reconnaissance flights were carried out before December, when the Afghan winter forced curtailment of the program. On two of those flights, the operators had seen bin Laden. Once this had been an
after-the-fact judgment based on imagery analysis, but the other time the crew was sure they had bin Laden in their sights: a tall, white-robed man surrounded by a coterie of supporters, in a place where other CIA intelligence indicated bin Laden would be that day. Because the Predator was not armed, nothing could be done. Tenet convinced the air force to experiment with a version of the drone modified to carry a pair of Hellfire missiles. The Hellfire, developed as a supersonic, air-launched antitank missile, was extremely powerful and had precision guidance. Tests of the armed drone took place between May 22 and June 7, 2001. The weapon proved excellent against structures and stationary individuals, but less effective when aimed at vehicles. With Hellfire's laser-pointed guidance, moving objects posed a greater challenge, and cloud, rain, or even water vapor could disrupt the system. Work began to adapt a radar-guided version of the missile for Predator.

Beyond the diplomatic task of arranging with foreign countries to host Predator detachments lay the aspect that concerned John Rizzo—in George Tenet's words, “a command and control arrangement that could respond to fleeting opportunities while ensuring the right level of leadership control.”
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Within days of the September 11 attacks, President George W. Bush had signed a presidential finding, the memorandum of notification that authorizes a covert operation. This was a “lethal” finding—one that permits operators to kill. One contradiction in the basis for CIA activities lies in the idea that a president, having promulgated an executive order with the status of law that prohibits assassination, then waives his own regulation with a simple finding. An argument that the United States is engaged in war fails, because the prohibition in the executive order is absolute, not dependent on belligerent status, and in any case it is legally disputable that the congressional resolution passed after 9/11 is tantamount to a declaration of war. The question of the
preeminence of executive order versus memorandum of notification has never been resolved. Operational requirements have been permitted to trump the legal underpinnings for U.S. intelligence activities.

Equally important, lethal operations are approved at a high level, yet for armed reconnaissance to work, it was necessary to make instantaneous decisions to kill during Predator attack missions. In conjunction with White House and other government lawyers, John Rizzo and Scott Muller evolved a system to maintain an approved target list. Call this an assassination list, a hit list, a kill list, or what you will, the mechanism was for CTC to work up a paper on a selected individual, describing why that person had to be neutralized. The recommendation was then considered by senior officials, and approved targets were added to the list. Those individuals could be attacked on sight by Predator crews. If others were killed as the targets were taken out, that was just collateral damage.

Early in September 2001, Director Tenet deployed the weapons-capable drone unit. The CIA Predators were in place on September 16. The first Predator flew over Kabul and Kandahar two days later. It was strictly a scouting mission. Tenet did not send the missiles right away, because the host country had yet to approve flying armed missions from its soil and because the Hellfire's technical shortcomings were still being resolved. But with 9/11 the stops were pulled out. Missiles soon reached Pakistan, which approved attack sorties on October 7. An initial armed mission took place the next day. About half the early drones carried missiles. Henry A. Crumpton was the overall commander of this aerial sniping venture. “The attorneys were always involved, but they were very good—very aggressive and helpful, in fact,” Crumpton would recall. “They would help us understand international law and cross-border issues, and they would interpret specific language of the presidential directive.”
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There were, of course, operational problems. Communications links to the drones could be lost, and the planes would go out of control and simply fly on until they crashed. Thirty percent of the initial air force buy of Predators were destroyed in their first five years in service. The drones might fade in and out of control, or lose their optical feed, or at the critical moment of attack the missile release mechanisms might not work.

Target discrimination is a perennial problem, only somewhat alleviated by other intelligence available to operators. With a platform flying at speed and altitude plus a list of potential targets, any one of whom might be on the viewscreen—no matter how good the optics—certainty could not be guaranteed unless the target was fixed or his identity validated by an outside source. A typical example took place early in the Afghan war, about a week after the first CIA team was inserted. Agency team leader Gary C. Schroen got a call from Washington—a Predator was circling a new, supposed Al Qaeda airstrip where a bunch of men were visible. They looked like terrorists, and headquarters wanted a strike. As Schroen considered the location, he realized the operators were talking about his own CIA teammates. This problem has not disappeared. Most recently, in April 2011, marine Staff Sergeant Jeremy Smith and navy corpsman Benjamin D. Rast were killed when analysts working a Predator mission, though not certain, decided to regard them as Taliban.

Nevertheless, the Predator quickly proved itself. On the night of November 15–16, 2001, a Predator blew up an Al Qaeda safe house south of Kabul. Killed in the attack was Mohammed Atef, the terrorist group's military commander, along with seven other persons. That result solidified support for the Predator program. Since then there has been a steady stream of Predator attacks and a parade of Al Qaeda number 3s eliminated. The main operational theaters for CIA aircraft have shifted from Afghanistan to Pakistan, Yemen, and
Somalia. And collateral damage continues as well. Observers are now debating whether Pakistani civilians killed by drones number in the hundreds or the thousands.

This program began with an air campaign in tandem with the U.S. invasion of Afghanistan. Once the shift to Pakistan began, flights were made only in small increments. Initially there was time for careful approvals. But as Predator operations became routinized that changed. President Bush and his advisors turned their eyes to Iraq and other issues. At Langley the targeting memos stopped on the desks of Scott Muller, the top lawyer, and John Rizzo. Memos shrank from five pages to two, with a supporting file to crack open if one had the time and inclination. Rizzo would send a poorly argued recommendation back to the CTC, where a team of nearly a dozen lawyers would rework it. After the first burst, a dump of the Center's intelligence on Al Qaeda, the requests came at a rate of about one a month. At any given time, Rizzo recalls, there were about thirty approved targets. “They were very picky,” recalls Michael Scheuer, who headed CTC's bin Laden unit until 2003. “Very often this caused a missed opportunity. The whole idea that people got shot because someone got a hunch—I only wish that was true. If it were, there would be a lot more bad guys dead.”
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Picky or not, the Predator program reached the point where people were being marked for death by an agency lawyer without further reference.

Fresh complications entered the picture in November 2002. A year into the attack program, by now the drones had begun to fly over Yemen. The CIA laid on a mission out of Djibouti to eliminate Al Qaeda organizer Qaed Salim Sinan al-Harethi, believed to have organized the explosive boat attack against the U.S. destroyer
Cole
in Yemen's port Aden in 2000. Al-Harethi was crossing the desert in a truck on his way to a meeting with a CIA operative, who confirmed the target for the Predator. A Hellfire demolished the truck.
Also eliminated were five others, including American citizen Kamal Derwish. Agency officials' certainty the man had been in the truck indicates his presence was known in advance. The Derwish killing injected a new issue, since, as an American, the man was entitled to constitutional protections and trial by jury. It did not matter that Derwish was a known member of a group of American Muslims, the so-called “Lackawana 6,” who had been convicted under new antiterrorist laws. Derwish was killed in cold blood without any legal proceeding. Now the CIA—at the level of staff lawyers—was acting as judge, jury, and executioner.