CHAPTER 7 CONFIRMATION BIAS
—MARK TWAIN
IN APRIL 2004, while Jack Goldsmith and his team at Justice were still trying to put the NSA surveillance program on firmer legal footing, sickening images of prisoner mistreatment at Abu Ghraib, a U.S. military detention facility in Iraq, became public. The pictures showed a small number of American service members mistreating Iraqi prisoners in horrific ways. Iraqi detainees were put in humiliating positions—some pictures showed prisoners hooded and disrobed; one of the more memorable had unclothed human beings stacked on top of each other in a naked pyramid. There were images of angry dogs being sicced on handcuffed prisoners, and others of vulnerable detainees being mocked and laughed at by American soldiers.
Very quickly a single word surfaced in the coverage to describe these acts: torture. Coming six or seven months before a competitive presidential election, the images took a devastating toll on the Bush administration. In nationally televised testimony before Congress, the secretary of defense offered public apologies to the detainees and their families and promised a thorough investigation into wrongdoing. The secretary of state compared the Abu Ghraib abuses to the My Lai massacre in Vietnam, an event that helped turn public opinion against the war. And there were more revelations still to come.
With the entire civilized world condemning the images of “torture” by the United States government, the CIA, understandably, became very nervous about a clandestine program of its own, under which the agency had beaten, starved, humiliated, and nearly drowned captives in 2002 and 2003. These were people the CIA believed had information about terrorist plots against the United States, and who were being held at so-called black sites outside of U.S. territory. At the start, in the summer of 2002, the CIA turned to the Department of Justice to determine the limits of what it could do, legally, while interrogating these suspected terrorists in their custody.
In June 2004, two months after the Abu Ghraib photos surfaced, Jack Goldsmith came to me to explain his findings on the interrogation program. He had spotted serious problems six months earlier and told the intelligence agencies they could not rely on the earlier legal work, but now, with Stellar Wind fixed, he had completed his analysis and knew the Justice Department’s opinions could not stand. As with the Stellar Wind program, he found that the earlier legal work supporting the interrogation program was deeply flawed. And as in Stellar Wind, he believed the agency was going beyond even what the flawed opinions allowed. This was another mess—one that, following Abu Ghraib, found itself all over the media after someone leaked a classified draft of Department of Justice guidance on torture. And it led to another battle within the Bush administration between a secret policy agenda and the rule of law.
* * *
In 1994, Congress had decided, as a legal matter, to define “torture” differently from how most of us understand the term. In ratifying the United Nations Convention Against Torture, Congress defined “torture” for American law as the intentional infliction of severe mental or physical pain or suffering. There is a whole lot that most of us would call torture that falls short of “severe pain” or “severe suffering.” Most of us would think that confining someone in a dark, coffinlike box or chaining them naked to the ceiling for days without sleep is torture. But the way Congress chose to define it, by requiring that the pain and suffering be “severe,” a judge or lawyer could conclude those actions do not meet the legal definition of torture.
In 2002, after the 9/11 attacks, the CIA wanted to use coercive physical tactics to get captured Al Qaeda leaders to turn on other terrorist leaders, reveal plots, and, hopefully, save innocent lives. Agency officials asked the Justice Department’s Office of Legal Counsel whether the interrogation tactics they had in mind—such as cramped confinement, sleep deprivation, and simulated drowning called “waterboarding”—would violate the law against torture. To be clear, they didn’t ask Justice Department lawyers, “Is this a good idea?” They only asked them to outline what the boundaries of the law were.
As with the Stellar Wind program, the Justice Department was asked to make these decisions during a time of crisis, when leaders feared more 9/11-style attacks were coming. The Justice Department lawyers were assured by CIA officials and others in the Bush administration that physically abusive interrogations of captured Al Qaeda leaders were not only effective but essential to saving countless innocent lives. Under that kind of pressure, and working almost entirely alone, a Justice Department lawyer—the same one who did the flawed Stellar Wind legal work—prepared a legal opinion interpreting the torture statute very broadly. He also issued a separate opinion saying the tactics the CIA had in mind for its first captured subject, Abu Zubaydah, did not constitute “torture” under the law. The CIA was cleared to use the full menu of tactics on Zubaydah, from slapping him and keeping him awake to making him think he was dying during waterboarding. By late 2003, when Jack Goldsmith became head of the Office of Legal Counsel and I became deputy attorney general, the CIA had already relied on that legal advice to aggressively interrogate suspects at various black sites outside the United States.
I wasn’t looking forward to another ugly, draining fight against the same powerful faction in the White House. The fight over the surveillance program had been a stressful time, not just for me but also for my family. I thought I was going to lose my job. Patrice and I had a floating, interest-only mortgage on our home, and we were not in a good place financially as parents of five kids fast approaching college age. As the United States Attorney in Manhattan and as the number-two person in the Department of Justice—and later as FBI director—I made about what a first-year lawyer at a New York law firm was paid. Of course, plenty of people raise kids on that salary; we just hadn’t planned well. But I agreed with Goldsmith that the legal opinion about torture was just wrong. So I went to Attorney General Ashcroft and, in a private meeting, told him why I believed it made sense to take the dramatic step of withdrawing the Justice Department’s earlier opinion on the legality of these actions. He agreed.
We both recognized that it would leave CIA personnel exposed, in a sense, because they had done rough stuff in reliance on a legal opinion that was now withdrawn. The interrogators weren’t lawyers; they had a right to rely on the advice of government counsel. But they had acted based on bad advice from the Justice Department, and that shouldn’t continue. A new legal opinion had to be written that was legally sound and firmly grounded in the facts.
Though it was not our role to judge the program’s value to the country, Goldsmith and I both were familiar with the world of FBI interrogations. The Bureau had long ago concluded that coercive interrogations were of no utility, the information obtained largely useless or unreliable. Instead, over decades, the FBI had perfected the art of “rapport-building interrogation”—forming a trusting relationship with those in its custody. The FBI had succeeded time after time in getting lifesaving and timely information from terrorists, mobsters, and serial killers. As a result, we were deeply skeptical of what we were told about the effectiveness of the CIA’s coercive tactics. It struck me as the kind of stuff pushed by chicken hawks—aggressive-sounding administration officials who had seen plenty of movies but had never actually been in the storm.
The CIA leadership, and the powerful administration officials who backed them up, like Vice President Dick Cheney, held a starkly different view. They were driven by one of the most powerful and disconcerting forces in human nature—confirmation bias. Our brains have evolved to crave information consistent with what we already believe. We seek out and focus on facts and arguments that support our beliefs. More worrisome, when we are trapped in confirmation bias, we may not consciously perceive facts that challenge us, that are inconsistent with what we have already concluded. In a complicated, changing, and integrated world, our confirmation bias makes us very difficult people. We simply can’t change our minds.
But there was more to it than biology. The president, the vice president, and those around them also labored under our political culture, where uncertainty is intolerable, where doubt is derided as weakness. Then and now, leaders feel a special pressure to be certain, a pressure that reinforces their natural confirmation bias.
Of course, in a healthy organization, doubt is not weakness, it is wisdom, because people are at their most dangerous when they are certain that their cause is just and their facts are right. And I’m not talking about finger-in-the-wind, I’m-afraid-to-make-a-decision kind of doubt. Decisions have to be made, often quickly, even the hardest decisions. And the hardest ones always seem to need to be made the fastest and on the least information. But those decisions must be made with the recognition that they could be wrong. That humility leaves the leader open to better information until the last possible moment.
In fairness to the president and vice president, our modern culture makes this incredibly hard for leaders—especially those in government—even if they possess enough confidence to be humble. Admitting doubt or mistakes is career suicide. And that’s the way we want it, right? We want strong, certain leaders. Imagine supporting a leader who, as he finished his time at the helm, told us that, although he didn’t do anything intentionally wrong, he is sure he made many mistakes, prays his mistakes haven’t hurt people, and hopes we will forgive and forget the times when he was incompetent. That weakling would be run out of town on a rail. But America’s first president said exactly that in his farewell to the country in 1796:
Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope that my country will never cease to view them with indulgence; and that, after forty five years of my life dedicated to its service with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the mansions of rest.
In the Bush administration, Dick Cheney, David Addington, and others had decided that “enhanced interrogations”—acts that fit any normal person’s definition of torture—worked. They simply couldn’t admit that evidence contradicting their conclusion was valid, maybe most of all to themselves. And so, in their view, people standing in the way of allowing these activities—lawyers like me—were needlessly putting lives at risk.
I understood why people like Vice President Cheney were frustrated when the Department of Justice changed its legal opinions. But much of the responsibility for the original flawed legal work could be laid at the feet of policymakers like the vice president—powerful leaders who were absolutely certain what needed to be done and who demanded quick answers from a tiny group of lawyers. Their actions guaranteed the very problems we were forced to deal with down the road.
From my perspective, it was simple. The United States Department of Justice had made serious legal mistakes in advising the president and his administration about surveillance and interrogation. If the institution was to continue to be useful to the country and its presidents—including President Bush—the department simply had to fix its errors. To do otherwise, even in the face of angry leaders, would mean the Justice Department had become just another member of the partisan tribe, willing to say what needed to be said to help our side win.
It makes good sense that the leaders of the Department of Justice are appointed by the president, with the advice and consent of the Senate. The department has important discretion on policy questions—like what kinds of crimes to prioritize or how to approach antitrust disputes—and should be responsive in its policy choices to the will of the people, expressed through election of the president. But there is a tension in having political leaders atop the Justice Department, because the administration of justice must be evenhanded.
The Constitution and the rule of law are not partisan political tools. Lady Justice wears a blindfold. She is not supposed to peek out to see how her political master wishes her to weigh a matter.
There is a place I have visited on the coast of North Carolina where two barrier islands come close together. In the narrow passageway between them, the waters of the Atlantic Ocean meet the waters of the huge and shallow sound that lies behind the islands. There is turbulence in that place and waves appear to break even though no land is visible. I imagine that the leaders of the Department of Justice stand at that spot, between the turbulent waters of the political world and the placid waters of the apolitical sound. Their job is to respond to the political imperatives of the president and the voters who elected him, while also protecting the apolitical work of the thousands of agents, prosecutors, and staff who make up the bulk of the institution. So long as the leaders understand the turbulence, they can find their footing. If they stumble, the ocean water overruns the sound and the department has become just another political organ. Its independent role in American life has been lost and the guardians of justice have drowned.
One evening after work in spring 2004, Patrice looked at me. She obviously knew I was involved in something that was wearing me down. She had seen all the media coverage of the treatment of captives. She simply said to me, “Torture is wrong. Don’t be the torture guy.”
“What?” I protested. “You know I can’t talk about that stuff.”
“I don’t want to talk about it,” she said. “Just don’t be the torture guy.” She would periodically repeat that admonition over the next year.
The prospect of being the “torture guy” disturbed my sleep for many nights. I couldn’t get away from the mental pictures of naked men chained to the ceiling in a cold, blazingly lit cell for endless days, defecating in their diapers, unchained only to be further abused and convinced they were drowning, before being rechained.
In June 2004, Goldsmith, with my support, formally withdrew the Department of Justice legal opinions that had supported the 2002 and 2003 interrogations. True to form, the vice president’s counsel, David Addington, was furious. At a meeting I didn’t attend, he pulled out a card he said listed all the classified opinions Justice had written since 9/11 and sarcastically asked Goldsmith to tell him which ones Justice still stood by. I reminded Goldsmith that Addington’s anger was an increasingly reliable indicator that we were on the right track. I don’t think my assessment made Jack feel any better. Nor did Patrick Philbin take any comfort in the thought. Addington spoke to Philbin privately and told him that, based on the withdrawal of the Stellar Wind and torture legal opinions, Addington believed Philbin had violated his oath to support and defend the Constitution of the United States. He suggested that Philbin resign and vowed that he personally would prevent him from being promoted anywhere else in the government.
Jack Goldsmith was a step ahead of him. After nine months as head of the Office of Legal Counsel, Jack’s cherubic glow was gone. He had been through brutal battles over electronic surveillance and interrogation. At the same moment as he withdrew the torture opinion, he announced he was leaving to return to academia.
Reworking the interrogation advice would fall to Dan Levin, the new acting head of the Office of Legal Counsel. Levin was another gifted and careful lawyer, with a somber look that masked a dark sense of humor. There was nothing cherubic about Levin. In an earlier role supporting Bob Mueller at the FBI, where Mueller was called “the director,” Levin, with his gloomy countenance, was privately referred to as “the funeral director.” Levin threw himself into the huge job of reworking the legal guidance supporting so-called enhanced interrogations. I didn’t know it at the time, but he quite literally threw himself into it—undergoing the simulated drowning technique known as waterboarding. He later told me it was the worst experience of his life.
In late December 2004, Levin and the Office of Legal Counsel finally finished the interrogation opinion. It was an impressive piece of scholarship—careful, thoughtful, tethered tightly to the CIA’s statements about how things actually worked. It did something significant that was overlooked by most people who read the lengthy, unclassified opinion. Levin concluded that intentionally inflicting severe mental suffering was a separate category of prohibited conduct under the law against torture. This was a big deal. The original 2002 Justice opinions had focused largely on defining severe physical pain. Suddenly, it was obvious (to me and Levin, at least) that the accumulation of CIA techniques could quickly become illegal because mental suffering was a broad category. Taking a naked, cold, severely sleep-deprived and calorie-deprived person, slamming him against a wall, putting him in stress positions, slapping him around, waterboarding him, and then sticking him in a small box could easily produce great mental suffering, especially if the CIA did those things more than once.
There were two additional opinions that needed to follow Levin’s general opinion. First, each of the CIA’s techniques needed to be evaluated individually under the standards Levin had announced. That would be fairly straightforward, because a single technique, viewed in isolation, was unlikely to cause severe physical pain or severe mental suffering. The second opinion would be the whole ball game. In that one, the CIA and White House wanted to apply Levin’s standards to the “combined effects” of all the techniques. They needed this because nobody was interrogated using just one technique. At actual black sites, they did a whole lot of brutal stuff to their subjects. Those actions could add up very quickly to the prohibited severe mental suffering. It was going to be difficult to sustain the program once Justice was asked to evaluate combined effects.
Levin worked long hours trying to document exactly what was going on at these black-site interrogations. To support the 2002 legal opinion, the interrogations had been presented to the Department of Justice as if they were highly regulated and conducted in almost surgical, clinical environments. Although Levin had moved heaven and earth in 2004 to nail down exactly what was going on, it was still like nailing Jell-O to the wall; he got it up there, but it sure looked shaky.
I never asked Dan Levin this, but I suspect he shared my hope that the entire CIA interrogation program would crater under the weight of these requirements. But this, of course, was not what we were asked to do. Justice Department lawyers were only being asked to provide legal opinions based on factual representations from the CIA. Although our internal voices screamed that this was terrible stuff and was based on inflated claims of success, those voices had to stay trapped inside us. But I heard one voice many times. “Don’t be the torture guy,” it said.
* * *
After George W. Bush won reelection in 2004, John Ashcroft had gone through the motions, like all cabinet officers, of tendering his resignation letter to the president. The tradition allowed the president flexibility to change his administration for a new term. But the hope was that cabinet officers who performed well would be asked to stay. To Ashcroft’s surprise, the president accepted his resignation. To add to the sting, Bush gave Ashcroft just a few hours’ notice before publicly announcing his successor. The person he had in mind as a replacement was another slap at all of us at Justice.
On November 10, 2004, President Bush announced that his pick to be the next attorney general of the United States was Alberto Gonzales. I was getting a new boss who had actively opposed what I viewed as the department’s responsibility to enforce the law as it was written, not as the administration wanted it to be. One who seemed to prefer satisfying his boss more than focusing on hard truths. I don’t know why Bush picked Gonzales, but I suspect it was the age-old presidential mistake I would try, years later, to warn Donald Trump about—because “problems” often come from Justice, some presidents think they will benefit from a close relationship with the attorney general. It almost always makes things worse.
Later that day, I was home for Patrice’s birthday when my cell phone rang. To my surprise, Gonzales was on the line. He said he was calling to tell me he really looked forward to working with me and hoped I would stay because he would need the help. I congratulated him on his appointment and said I looked forward to working with him. It seemed like the right thing to say, and I had nothing against Gonzales personally, despite the challenges we had been through. If he was going to be attorney general, I wanted to help him succeed. My main concern was not that he was evil, but that he was weak and would easily be overmatched by Addington and Cheney and their view that the war on terrorism justified stretching, if not breaking, the written law.
I found out later that President Bush called Gonzales immediately after the announcement and suggested that he call me. I didn’t realize it at the time, but after what I knew—and had not talked about—from the Ashcroft hospital scene, I was something of a loaded gun in the Bush administration’s eyes, one that could go off at any moment. Because I was a loaded weapon, they handled me with care, but it was obvious to me that serving as Gonzales’s deputy was not the right thing for me. In the spring of 2005, I announced I would be leaving that August. We had a new attorney general who needed his own deputy, I reasoned. I was tired and disappointed with the choice of my new boss. Without the support of Ashcroft, I didn’t have the stomach for what were certain to be more losing battles within the administration. More important, my financial situation had not improved and our oldest was headed to college. It was time to leave. I sent the president my resignation letter, making it effective in August to ensure a responsible transition.
Just as I was preparing to leave the Department of Justice, Vice President Cheney began leaning on Gonzales to produce the two remaining opinions he needed on interrogation policies. In addition to a new attorney general, the Justice Department also had a new acting leader of the Office of Legal Counsel, a bright and affable lawyer named Stephen Bradbury. Steve, who had no background in national security matters, wanted to be formally nominated for the job and he was being pushed to produce the two opinions the way Cheney’s tribe wanted. Patrick Philbin and I were disappointed to see that his opinions were overbroad, untethered to an actual case, and, to our minds, deeply irresponsible.
We had suggested Bradbury consider the actual, recent case of someone who had been interrogated by the CIA. We knew of a terrorist who had recently been in CIA custody and whose interrogation was finished. We suggested he describe precisely what had been done to that captive, and then offer an opinion as to whether that actual, real-world combination of actions crossed the legal threshold. That was the only way to responsibly give an opinion. And, as it happened, this actual case was one where, given what we understood had been done to that guy, we did not think it would add up to severe pain or suffering as the statute defined it and the Department of Justice interpreted that statute, even though anyone in their right mind would say the man had been tortured. But even though the opinion would likely approve what had been done to that prisoner, that wasn’t what the vice president wanted. He wanted Bradbury to rule on the legality of a hypothetical scenario—a “typical” interrogation—not what the CIA actually was doing to a real human being.
I met with Attorney General Gonzales to explain to him why I thought it was so irresponsible to write a hypothetical opinion that way—and immediately saw the difference between the attorney general I knew and respected, John Ashcroft, and his replacement. Wearily, Gonzales complained that the vice president was putting enormous pressure on him and that Cheney had even prompted the president to ask when the opinions would be ready. I said that I understood the pressure, but there were no prototypical interrogations. They all involved real interrogators reacting to real subjects, slapping them, chilling them, cramping them, and on and on, in permutations and combinations that were all unique. It was impossible to write a forward-looking opinion without making it look like Justice was writing a blank check. Someday when all this came out, I warned him, it would look like the attorney general had just caved in response to White House pressure and done something we would all deeply regret.
If one thing motivates people in Washington, it’s being on the receiving end of bad headlines. And on that thought, Gonzales paused. It wasn’t clear to me that this had ever occurred to him. “I agree with you, Jim,” he said. He instructed me to work with Bradbury to try to fix the approach.
My relief proved short-lived. The next evening, I spoke by telephone with Gonzales’s chief of staff. He told me the interrogation opinions were to be formalized and sent the next day. There was no more time. I reminded him that the attorney general had told me the opposite only the day before. His chief of staff told me things had changed.
Bradbury finalized and signed both opinions, as he and the White House wanted it. A week after that, the White House began the background check process to formally nominate him as assistant attorney general. The legal battle was over.
Now that we were no longer acting as lawyers on the torture question, I felt free to do what I hadn’t done before. I went to the attorney general to seek permission to request a policy review of the entire program by the National Security Council. Typically this would lead to a full review by what is called the NSC’s Deputies Committee, of which I was a member, along with the deputies of the other relevant departments and agencies in the Bush administration. The deputies would frequently hash out policy issues and tough questions before their bosses grasped the issues personally. I knew I could make my case in that setting. We would have an honest, administration-wide discussion of whether we should be doing this stuff to human beings. Unfortunately, I never got that chance.
The next thing I knew, strangely, the policy discussion on torture was elevated from the Deputies Committee to the Principals Committee, comprised only of the top leadership of the major defense and intelligence agencies—such as the secretary of defense, secretary of state, CIA director, and attorney general. That meant my team and I would have to prepare Gonzales to voice our concerns for us—because nobody else from Justice was allowed to go with him. Oh boy.
As Pat Philbin and I sat down to prepare Gonzales for the May 31, 2005, White House policy discussion, the attorney general began by showing us the writing on the wall. He said Condi Rice, who had been national security adviser when the interrogation program was conceived and was now the secretary of state, replacing Colin Powell, “was not interested in discussing the details.” He added that Rice believed, “If Justice says it’s legal and CIA says it’s effective, that ends it. There is no need for a detailed policy discussion.”
Knowing I’d never be able to plead the case to others on the National Security Council, Philbin and I did our best to buck up Gonzales to make the case on the department’s behalf. We protested that just because something was deemed to be legal—based on an opinion we disagreed with—and allegedly effective did not mean it was appropriate. I again reminded him, and hoped he would remind the others in the cabinet, that someday the interrogation methods used, and the shaky legal support for them, would all become public—adding that I had heard there was a videotape of one of these CIA interrogations—and this would reflect very poorly on the president and the country.
Then I showed Gonzales a heavy-stock, cream-colored three-by-five card I’d compiled. On it I had written a list of the things that could be done to another human being under the CIA program as currently written and authorized by the Gonzales Justice Department. Reading from the card, I painted a picture for him of a human being standing naked for days in a cold room with hands chained overhead to the ceiling, defecating and urinating in his diaper, engulfed in deafening heavy metal music, and spending hours under a constant bright light. He is then unchained to be slapped in the face and abdomen, slammed against a wall, sprayed with cold water, and then, even though weak from a severely reduced-calorie liquid diet, made to stand and squat in positions that put extreme stress on his muscles and tendons. When he can’t move any longer, he will be put in a coffin-sized box for hours before being returned to the ceiling chain. And, of course, in special cases, he may be made to believe he is drowning on the waterboard.
“That’s what this is,” I told the attorney general, holding the card aloft. “The details matter.” I urged him to make sure that all of the principals on the National Security Council stared at those details while deciding our country’s future interrogation policy.
Gonzales paused for a long time, as he often did. He then thanked me for coming to him with this and asked whether he could keep my card with the handwritten list, so he could use it at the meeting. I handed it to him and left, praying that I had made a difference.
I heard nothing immediately after the Principals Committee meeting. Late in the afternoon, I attended a meeting on sentencing policy with the attorney general and others. In front of the others, unprompted, the attorney general told me the White House meeting had gone very well, that he had told them just what I had asked, but all the principals were entirely supportive of the current interrogation policy and all parts of it.
No policy changes were made. CIA enhanced interrogations could continue. Human beings in the custody of the United States government would be subjected to harsh and horrible treatment. And I never got my card back. I left government service two months later. I was never going to return.
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