by Rizzo, John
Nonetheless, the Bush White House declared victory, and even had the president pose for a picture shaking hands with McCain to memorialize the agreement. The McCain Amendment became law in late 2005. Hadley evidently assured Bush that the EIT program had survived intact. But no one asked me, and I was anything but assured. I was deeply worried that our people—still administering EITs to newer-arriving detainees, including the guy who succeeded KSM as Al Qaeda’s operational commander—would someday, somehow, be left hung out to dry. So I decided to take a step that would prove even more fateful than I realized at the time: I recommended to Porter that he formally notify the White House that the Agency was suspending the EIT program—immediately and across the board—pending receipt of new, written, authoritative legal guidance from the Justice Department about the scope and impact of the McCain Amendment.
Before approaching Porter, I went over and over in my mind the potential implications. I knew that the CIA’s sudden suspension of the EIT program would cause ripples inside the Bush administration, but I couldn’t gauge how big the ripples would be. I briefly considered, but decided against, first broaching my deep concerns about the impact of the McCain Amendment with my counterparts at Justice and the White House. I figured what I would get back would be assurances not to worry, which I knew wouldn’t assuage my worries, which were more inchoate and gut-level. Besides, the people being put in the legal crosshairs were those in the Agency—my clients, the career rank-and-file employees—not those political appointees at Justice or the White House who would be long gone if and when the shit hit the fan.
I will confess to also thinking about how what I was about to do might affect my own career. Porter had just recommended me to the White House for the GC position. My prospects looked good, but the White House had not yet formally submitted my nomination to Congress. My fingerprints were going to be all over any decision to suspend the program. The Bush people, including those holding my future in their hands, were not going to be pleased with me.
But in the final analysis, I decided there was no other way. I went to talk to Porter.
“Are you sure about this?” Porter asked me. He fully grasped that what I was proposing would mean giving the detainees an indefinite reprieve while simultaneously pissing all over the Bush-McCain kumbaya moment. I felt grubby about putting him on the spot.
“This is a whole new ball game for us. I just think our people could be in serious jeopardy. Maybe not tomorrow. Maybe not next year. But someday,” I replied.
That was all Porter needed to hear. “Draft a memo to go from me to Steve Hadley and [Director of National Intelligence] John Negroponte,” he instructed. “Lay out all the reasons why I have decided to suspend the program.”
The memo left the CIA on the last day of 2005. The same day, headquarters ordered interrogators at our secret prisons to halt the use of any EITs. This edict included Al Qaeda’s operations commander, a hardened character named Abu Faraj al-Libbi. Prior to his capture several months before, he had unparalleled personal access to bin Laden and to Al Qaeda’s operational plans. Finally, his interrogators thought, he might be about to talk.
Back in Washington, Porter’s memo had a separate sort of impact: It effectively doomed him. Hadley was furious when he saw it. He had negotiated doggedly with McCain on the language and thought he had a deal that would preserve the EIT program. No sooner than Hadley had assured Bush that the program could continue, the CIA director sends him a missive written by me pulling the plug on it. Hadley felt Porter had blindsided him with the commander in chief.
I remember Porter telling me at the time, “Hadley’s not happy about the memo,” but Porter didn’t make a big deal about it, so I assumed the unhappiness would go away over time. Apparently, it didn’t. Six months later, in June 2006, Porter was summoned to the Oval Office and fired as CIA director. Now it was Porter’s turn to feel blindsided. He hadn’t seen it coming.
A few days later, after the shock had worn off and he had time to reflect, I met privately with Porter in his office, packing boxes all around us. “It was the memo,” he quietly told me. “That’s what did me in.” He didn’t say whether he had been told that or if he had simply arrived at that conclusion himself. But he said it without any rancor toward anyone, including the guy sitting across from him who had urged that he send it in the first place. What I had done was to write the professional death warrant of a man I had come to admire enormously and who had been so kind and generous to me. I felt terrible about it. I still do.
There was an ironic, poignant coda to the Goss tenure. On June 29, 2006, just about the time Porter was being unceremoniously kicked to the curb, the Supreme Court issued a long-awaited ruling that effectively put the EIT program, as it then existed, out of business even more definitively than the McCain Amendment did. The case was Hamdan v. Rumsfeld, and it involved a former bin Laden bodyguard and driver being held in U.S. military custody at Guantánamo Bay. The Court, among other things, held that Common Article 3 of the Geneva Conventions governed “the conflict with Al Qaeda.” While the McCain Amendment had no explicit criminal application, the Court’s application of Common Article 3 brought the treatment of U.S. Government detainees—including those in CIA prisons—directly into the ambit of the congressional war crimes statutes. In other words, hundreds of my Agency clients who had been involved in the EIT program (and me personally) were on notice that we could be potential war criminals.
It was a whole new ball game indeed.
General Mike Hayden arrived as CIA director in September 2006. Mike was career air force and came to the Agency with more credentials in the field of intelligence than any CIA director I served under, before or since. His two previous positions had been as head of the National Security Agency and number two man at the newly created Office of the Director of National Intelligence (ODNI). He was eager to take on the CIA job as the swan song to his long and distinguished government career, which I found encouraging if somewhat puzzling. He had a spotless record of public service, and here he was happily wading into the quicksand of the EIT program, something that was now threatening the careers and reputations of anyone associated with it.
Why did he do it? Three reasons, I think. First, he was a soldier and lifelong patriot, and when his commanding officer—in this case, his president—asked him to take on an assignment, he was going to salute. Second, he loved (and perhaps needed) new challenges, and God knows, taking the reins at the CIA in 2006 offered all manner of new challenges. The third reason became clear to me only when I had watched him up close in the job for a while: Mike Hayden loved being a spymaster, by which I mean he reveled in conceiving and running covert operations involving real people and back-alley intrigue. His years at the NSA and the ODNI involved him deeply in intelligence matters, to be sure, but by his own account it had been all “techie, wonky stuff.” And the CIA was, well, the CIA. Mike Hayden had been a working-class kid from Pittsburgh who drove cabs to put himself through college. With the possible exception of George Tenet, I never saw anyone more palpably enthralled about the very notion of being CIA director.
At the same time, Mike was no dewy-eyed romantic vicariously living out his own Ian Fleming fantasy. He knew the EIT program was on life support, and he wasn’t about to embrace it, to try to save it, unless the professional in him concluded it was worth the effort. So on his first day on the job, he dived in—reading all the thousands of intelligence reports, grilling everyone in the building, down to the most junior operators and analysts, who had anything to do with the program. Was it well run? Was it effective? Was it indispensable? And perhaps most important for this straight-arrow, devout Catholic: Was it morally justifiable? After a few weeks, Mike Hayden was satisfied on all counts. He determined that the program was worth fighting for. He identified himself with it, it became his for better or worse, and he never looked back.
And then Mike’s canny political instincts kicked in. The major problem with the program, he concluded, was that
it was shrouded in too much mystery. It had been in existence for four years, and for all that time the Bush administration had steadfastly refused to say a single thing publicly about it. It also had insisted on keeping knowledge of the program—including details about the techniques and the intelligence information derived from it—confined to only a handful of members of Congress. Inevitably, the result was a corrosive mix of suspicion and misunderstanding that was slowly enveloping the program. For what it was worth, I told him his approach was exactly what the beleaguered Agency workforce wanted and needed.
Mike made one more cold-eyed, practical decision: The program had to be modified, slimmed down, if it was going to survive. I took the lead on that one. On the one hand, I had to determine which of the original EITs still could safely be deemed “legal” in the aftermath of the McCain Amendment and the Hamdan decision. On the other, I had to look to the CTC managers of the program for their professional assessment, based on their experience, of which of the existing techniques were “must haves” in order for the program to remain viable and productive. It was a complex, delicate balancing act. I knew, and the CTC recognized, that waterboarding was pretty much out the window. And then a bizarre sort of horse-trading began, with others in the administration weighing in. Secretary of State Rice sent her emissaries—my old friend John Bellinger and her old friend the brilliant but brittle Philip Zelikow—over to my office to insist that nudity be halted; Rice’s singular aversion to men being interrogated while naked remained as implacable as ever. The CTC held out strongly to maintain sleep deprivation as an option, convinced it was the one technique that had broken KSM.
Back and forth I scurried, between our people, the White House, Rice’s coterie, and the Justice Department. Finally, after a few weeks, a truncated list of six techniques made the final cut: dietary manipulation (read “Ensure”), sleep deprivation, plus the so-called “attention getting” techniques, facial hold, attention grasp, abdominal grasp, open-fingered abdominal slap, and open-fingered facial slap. I remember only one significant last-minute dispute, and it was over the “walling” technique. The CTC wanted to keep it, and Rice’s people wanted it out. Their respective reasons now escape me, but Rice eventually prevailed. Still, the CTC considered the tools that remained—grasps, slaps, and no sleep—sufficient for them to do their jobs. We had come a long way from waterboarding and bugs in a box.
Meanwhile, Mike Hayden quietly set out to drive the process inside the administration to “open” the program up. In September 2006, his efforts bore fruit. President Bush gave a standing-room-only speech in the East Room acknowledging and defending the existence of the CIA prison system (albeit nothing about the EITs). Bush also announced the imminent arrival at Gitmo of the remaining fourteen detainees in the prisons, including KSM and his cohorts with 9/11 blood on their hands, thus accomplishing the “endgame” we in the CIA had been insistently pushing inside the administration for the previous two years. At the DOD, Donald Rumsfeld’s long-standing resistance seemed to have vanished; perhaps he was just worn down, or perhaps he sensed that his days at the DOD were numbered (he would resign, or be pushed out, as secretary two months later).
A couple of days before the Bush speech, I accompanied Mike Hayden to a Principals’ meeting in the Roosevelt Room in the White House. It was chaired by Bush, which was the first time I ever saw the president personally participate in any meeting in which the EIT program was being discussed. But the thing I found most memorable were the images of two absent officials, beamed in on screens erected on either side of the large polished conference table. On one was Secretary Rumsfeld, on the other was Vice President Cheney. Rumsfeld seemed resigned, almost indifferent, to the plan as it was being laid out. Cheney seemed to listen intently but had his typically stoic look—until, that is, Bush asked for one final vote. All the Principals went along with the new version of the EIT program and for the meticulously planned East Room rollout, except for the vice president. He voted “No” in a loud voice. He said he was against all of it—Cheney wanted to maintain the secrecy of everything, not change a thing about the EIT program. Not for the first time, I felt a certain admiration for the man: He wasn’t about to back off on his beliefs for anything or anybody. For an instant, the room was silent as everyone there, including the president, stared at Cheney’s image on the screen. No one’s mind was changed, of course, but it was a hell of a scene to behold.
Last but not least, that same month, Mike Hayden got agreement from the White House to brief the EIT program—both the old one and the new one—to the full membership of the House and Senate intelligence committees. Better (at least a little better) late than never.
Mercifully, those eventful, frenetic first couple of months of Mike Hayden’s directorship gave me little time to fret about my own future. My nomination for general counsel, championed by the departed Porter Goss, had gone nowhere since the White House sent it to the Senate Intelligence Committee the previous March. Its chairman, the Kansas Republican Pat Roberts, demonstrated zero interest in it or in me, for that matter (to this day, I have never met the man). Perhaps it was because I wasn’t a politically connected Republican. Perhaps it was because Roberts was becoming wary about the whole “waterboarding,” “secret prisons” imbroglio, to which my name was now linked in media reports, and Roberts just didn’t want to be bothered by a messy confirmation hearing (this was Porter Goss’s theory). In any case, my nomination was languishing with the Intelligence Committee.
Although we didn’t know each other well when Mike became director, I never really worried that he would seek to have his own person replace me as nominee. For one thing, that wasn’t his style—he brought only one longtime aide with him when he came to Langley, and his pattern in previous high-level jobs was to retain whatever legal advisor he inherited from his predecessor. Moreover, I knew that I had continuing backing from senior members of the Bush administration legal brain trust, people such as Al Gonzales, Harriet Miers, and David Addington. Especially David, my young subordinate at the CIA in the early ’80s and now a strong-willed, influential White House figure in his position as counsel to Vice President Cheney. David was a man of fierce principles and fierce loyalties. He never forgot people he distrusted or people he respected, and, owing to our long association, I was firmly in the latter category. Although David never told me so, I have no doubt that the White House would never have approved my nomination in the first place had it not been for his strong endorsement.
Ironically, my nomination began to move on the Hill only because of the November 2006 midterm elections, when congressional Republicans (owing in large part to growing public disillusionment with the Bush administration) suffered a huge shellacking, losing their majorities in the House and Senate. The new chairman of the Senate Intelligence Committee was Jay Rockefeller, a Democrat from West Virginia. Shortly after he assumed the chairmanship in January 2007, Rockefeller wrote a letter to Mike Hayden, saying one of the committee’s priorities would be to take up my long-stalled nomination and schedule my confirmation hearing. Naïvely, I was elated. I didn’t focus on the fact that Rockefeller and his fellow Democrats on the committee were now highly vocal opponents of the Bush administration’s counterterrorism initiatives—especially the Agency’s enhanced interrogation program, which was garnering more and more attention and controversy in the media even though it officially remained classified at the top-secret level.
For the next few months, I assiduously plowed through a slew of written “questions for the record” the committee staff sent out to me to answer in advance of the promised confirmation hearing. At least, that’s what I thought I was preparing for. In hindsight, what the committee was preparing for was a show trial. I probably should have seen it coming. A few sympathetic committee staffers were quietly passing warnings to their friends in the OGC. My chief of staff, Melody Rosenberry, told me about one call she got. “I don’t know why John is going through with this thing,” the staffer told her. “They are go
ing to absolutely slaughter him.”
CHAPTER 15
Out of the Shadows and Into the Spotlight (2007)
On the afternoon of June 19, 2007, I settled into the witness chair at my confirmation hearing.
It was an improbable and surreal scene. The cavernous room in the Dirksen Senate Office Building was aglow with television lights and ringed by C-SPAN cameras. About half a dozen photographers (although they seemed like a thousand to me) scurried about, crouching and snapping away as I entered the room from the rear, gingerly making my way through clots of people milling around in the spectator section.
I had known this day was coming for more than a year, and I had spent hours trying to visualize this entry scene, attempting to prepare myself—rehearse, really—for how I would look, act, and feel when I first walked onto this very public stage. But now that the moment had finally arrived, I found myself feeling oddly detached—as if I were an observer to an only-in-D.C. political/media event swirling around someone I had perhaps heard of but never met. It was only when I sat down at the witness table, when I turned around and saw my family sitting behind me, looking proud but pensive, when I felt the lights and TV cameras aiming at me, when the photographers scampered in front of me and hunkered down five feet from my nose, that it really hit me: Jeez, this is all about me.
Actually, it was far more complicated than that. One issue would dominate this hearing: my central role in the creation and implementation of the CIA’s counterterrorist detention and interrogation program. That was the only reason for the cameras, the photographers, the reporters, the dozens of spectators I didn’t recognize.