Tuesday, June 19, 2007
WASHINGTON, June 18 — In the months after the Sept. 11 attacks, at a time when the Central Intelligence Agency had long been out of the interrogation business, senior C.I.A. officers scrambled to build a program to question terror suspects in secret jails abroad.
To check on the legality of the harsh interrogation techniques they proposed, they turned to John A. Rizzo, who was then acting as the agency’s top lawyer.
On Tuesday, Mr. Rizzo will go before the Senate Intelligence Committee for a confirmation hearing to become the C.I.A.’s general counsel, giving the new Democratic majority its first chance at a public airing of agency practices that drew condemnation abroad and set off a prolonged debate at home.
Mr. Rizzo has been acting general counsel off and on for most of the last six years, serving without Senate confirmation. He was first nominated to the position last year, but a confirmation hearing was delayed.
In a report last month, the committee questioned whether the C.I.A. program was “necessary, lawful and in the best interests of the United States,” particularly in view of “the damage the program does to the image of the United States abroad.”
Mr. Rizzo, an agency lawyer for three decades who is known for his dapper dress and his discretion, will probably be questioned in open and closed sessions about the most contentious policies: holding terror suspects in secret; subjecting them to tough physical treatment, including the simulated drowning technique called waterboarding; and delivering some to countries that routinely practice torture.
“He’ll be the piñata,” said A. B. Krongard, executive director of the C.I.A. from 2001 to 2004, who remains a strong defender of the detention and interrogation program.
Mr. Krongard said Mr. Rizzo worked hard to see that the program was lawful, insisting on written legal opinions from the Justice Department.
“He did everything possible to get it right,” Mr. Krongard said. For any legal faults, he added, “Rizzo can be held accountable, I guess, but nowhere near as much as the Justice Department.”
Committee Democrats said they planned tough questioning for Mr. Rizzo, who was a crucial link between the interrogators and the Justice Department lawyers who gave their approval.
“I have serious concerns about this nomination,” said Senator Dianne Feinstein, Democrat of California, who said she wanted to gauge Mr. Rizzo’s precise role in what she believed were deeply flawed legal justifications.
Gen. Michael V. Hayden, C.I.A. director since May 2006, strongly defended the program and Mr. Rizzo’s role in shaping it.
Paul Gimigliano, an agency spokesman, said, “Mr. Rizzo knows better than anyone the full range of complex legal issues that influence intelligence operations in a democracy.”
Mr. Rizzo has earned a reputation for helping overseas operatives find a legal way to do what they feel is necessary. But officials said he did reject some proposed interrogation methods as excessive and illegal.
John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 but is critical of the detention program, said Mr. Rizzo “bears a share of responsibility” for the program and perhaps should have counseled against actions that were “technically legal but wrongheaded.”
But Mr. Radsan said top Bush administration officials deserved greater blame “for asking to push things right to the point of illegality.”
Mr. Rizzo, who is not granting interviews before his confirmation hearing, is no stranger to the agency’s legal controversies. A graduate of Brown University and the George Washington University Law School, he joined the agency in 1976, when the Church Committee of the Senate had just unearthed the agency’s involvement in assassination plots.
In the 1980s, he worked for the C.I.A.’s inspector general, investigating accusations of wrongdoing at agency stations abroad. He later became the agency’s point man for outside investigations into the Iran-contra affair, in which three agency officers were charged with crimes.
Since 1995, as senior deputy general counsel, Mr. Rizzo has often filled in as acting general counsel for months at a time. That was the case from November 2001 to October 2002, when top C.I.A. officials were negotiating the placement of secret jails abroad.
Interrogation was uncharted territory for most serving C.I.A. officers. A 1963 agency interrogation manual described the infliction of pain, including the use of electrical shock, but such techniques were banned by the 1980s, and by 2001, few C.I.A. officers had any experience in questioning suspects.
Mr. Krongard said deciding the limits of interrogation for Al Qaeda’s top operatives was not easy. “Can you slap someone in the face? Maybe,” he said. “But can you hit them as hard as you can? Maybe not.”
The approved options were first applied after the capture in March 2002 of Abu Zubaydah, a senior Qaeda figure. Mr. Rizzo was responsible for the legal advice to the officers holding him in Thailand as they escalated physical and mental pressure.
But colleagues said Mr. Rizzo insisted on Justice Department approval for actions they knew might be second-guessed.
“We were always conscious in the agency that we are judged not by the standards of today, but by the standards of tomorrow,” said Robert Richer, who retired in 2005 as second in command of the C.I.A.’s clandestine service.
The intelligence officers’ conviction that the political and legal winds would shift has proved accurate. A Justice Department memorandum in 2002 declared that nothing short of the pain associated with organ failure constituted illegal torture; the department later withdrew it and Congress set new limits on interrogation last year with the Military Commissions Act.
Since then, the C.I.A. has awaited White House approval for a new set of interrogation methods. It will again be up to Mr. Rizzo, if he is confirmed, to tell the agency what is and is not permitted.