In Torture Memo Furor, Rizzo's Name Is At The Top

by Mary Louise Kelly

April 29, 2009 · The recent release of four Justice Department memos on torture has put a spotlight at the receiving end of those documents: They all went to John A. Rizzo, the CIA's top lawyer.

In 2002, the CIA turned to Justice Department lawyers with this question: Could 10 specific techniques, including sleep deprivation and controlled drowning, commonly known as waterboarding, be used legally to force a detainee to talk?

The Justice Department responded on Aug. 1, 2002, in the form of a memo to Rizzo, the CIA's acting general counsel. Rizzo was in charge then, as he is today, of well over 100 CIA lawyers.

"John Rizzo was the point person," says John Radsan, who was an assistant general counsel for the CIA under Rizzo in the summer of 2002. "The questions were routed through him."

But Radsan says that while Rizzo bears a share of responsibility for the CIA's programs, he was by no means acting in isolation.

Vicki Divoll, who worked for Rizzo as a CIA lawyer in the late 1990s and later served as general counsel for the Senate Intelligence Committee, agrees.

"He has lawyers under him who are working with the case officers on what the proposals might be. And he would also be consulting with lawyers at the [National Security Council] and lawyers at [Justice]. And at some point, I'm sure they all decided that this was an issue that needed to be addressed head-on, and have a formal ruling made on it," Divoll says.

That formal ruling, in the form of the recently released Justice Department memos, has ended up thwarting Rizzo's career. Despite his years as acting general counsel, Rizzo has never ascended to the permanent top job. President Bush nominated him in 2007, but his confirmation hearing before the Senate Intelligence Committee did not go well.

"I led the fight against the Rizzo nomination," says Sen. Ron Wyden (D-OR).

Wyden says he and other senators were stunned when they asked Rizzo about the Justice Department judgment that pain had to reach a level associated with organ failure before it constituted illegal torture.

Rizzo told senators at the time, "I did not certainly object to the memo. My reaction was it was an aggressive, expansive reading. But I can't say I had any specific objections to any specific parts of it."

"He should have lodged an objection," Wyden says. "He should have said, 'Look folks, there is an insufficient legal foundation here for conducting a very sensitive covert action program.' "

But former colleague Radsan says Rizzo was likely reluctant to contradict the guidance he had given CIA officers in the field, just because that's what some senators wanted to hear.

"It was more important for him to maintain his reputation his integrity and honor with the clandestine service. He didn't want to be seen years later as selling out, just so he could get the formal title of general counsel at the CIA," Radsan says.

The CIA declined to make Rizzo available to comment for this story, but spokesman Paul Gimigliano did provide a detailed statement.

Gimigliano writes, "Mr. Rizzo's role, like that of the office of general counsel writ large, is to ensure that the agency acts in accord with the law. The Department of Justice determined repeatedly and in writing that the CIA's interrogation program was lawful."

In any event, Rizzo's tenure as the CIA's top lawyer may soon be drawing to a close. President Obama has nominated his own pick for the general counsel job.

In Torture Memo Furor, Rizzo's Name Is At The Top : NPR