Hard Measures

by Jose A. Rodriguez, Jr.

  The DNI, Ambassador John Negroponte, reportedly told Goss that he opposed the destruction of the tapes despite the assessment that there was no legal constraint from doing so. My successor as chief of CTC told Negroponte that continued retention of the tapes would be quite distressing to our employees who were depicted on them and could place them and their families at risk. In any case, Negroponte’s objections were never conveyed to me as an “order,” just an “opinion.”

  The seemingly endless debate stretched on into the fall, now more than three years after it had started. At one point some lawyers suggested transferring the tapes from the field, where they had always been, back to headquarters. Fortunately, that idea was dropped. Bringing them back to Washington would only ensure that the tapes would be copied, passed around, widely discussed, and most likely result in a decision on someone’s part to officially release or to leak them.

  To say I was getting frustrated would be a massive understatement. My chief of staff held a meeting with CTC lawyers and other parties and asked two questions: (1) Is the destruction of the tapes legal? and (2) Did I, as director of the National Clandestine Service, have the authority to make that decision on my own? The answer she got to both questions was: Yes.

  As must be abundantly clear by now, nothing is that easy in Washington. In order to do what the field had asked us to do thirty-eight months before, we had to require them to ask us again. To make sure we got the right question, so that we could give the right answer, on November 4, 2005, lawyers in CTC (we had our own lawyers who were separate from the larger contingent in the General Counsel’s Office) drafted a cable that could be sent to the field with instructions that they cut and paste the appropriate language from the cable and put it into their own cable back to us. The instructions basically were: “Ask us in this way and we will say yes.” The draft language was sent to the Office of the General Counsel for coordination at the same time it was sent to the field.

  The next day, a Saturday, the field dutifully sent a cable to headquarters asking for permission to destroy the tapes. The language was just right, of course, since our lawyers had drafted it. I asked my chief of staff to prepare a cable granting permission. On most matters I would just instruct my staff on what action to take and let them handle the administrative details. But this had been such an ordeal that I wanted to personally handle what I thought was the end of a long bureaucratic nightmare.

  In fact it was just the beginning. My chief of staff drafted a cable approving the action that we had been trying to accomplish for so long. The cable left nothing to chance. It even told them how to get rid of the tapes. They were to use an industrial-strength shredder to do the deed. On Tuesday, November 8, after scrutinizing the cable on my computer for a while, I thought about the decision. I was not depriving anyone of information about what was done or what was said, I was just getting rid of some ugly visuals that could put the lives of my people at risk. I took a deep breath of weary satisfaction and hit Send.

  The next day, November 9, the field sent in a cable reporting that the shredder had done its work. The machine, the likes of which have been in use at U.S. government facilities for more than thirty-five years, can chew through hundreds of pounds of material in a single hour. The device’s five spinning and two stationary steel blades are designed to chop up DVDs, CDs, cell phones, credit cards, X-rays, and other optical media and produce tiny, unrecognizable bits that are vacuumed out into giant, heavy-duty, plastic trash bags. Our problem had been reduced to confetti—or so we thought.

  Apparently we had gotten ahead of ourselves. We had asked the Office of General Counsel to approve the language we sent to the field providing the wording they sent back to us asking permission to destroy the tapes. The day after the tapes were destroyed, the General Counsel’s Office got around to telling us that our language was okay. “That’s good to hear,” CTC officials told them, “because Jose directed the field to destroy the tapes pursuant to their request and they did … yesterday.”

  Although he didn’t confront me, Rizzo reportedly was not a happy camper. He told my chief of staff that he thought that the plan was that when the field made their request (again), he would have a chance to review it (again) and take it to Goss for discussion (again). That wasn’t my understanding and I wasn’t going to sit around another three years waiting for people to get up the courage to make a decision that I had been told I could legally make on my own.

  Rizzo reportedly informed Harriet Miers at the White House that I had preempted the system’s ability to dither about the decision further. At the time, I did not directly hear anything about my actions from the White House. Five years later, I had an opportunity to discuss the matter with a very senior former member of the Bush White House. I don’t have permission to quote him by name but he confirmed my suspicions. He said that when senior White House and NSC officials heard about my action, there was a collective sigh of relief. He conveyed to me that they were delighted with what I had done. Just as significantly, he confirmed my belief that if I had waited for them to give me the go-ahead, I would still be waiting.

  I recall only one conversation about this matter with CIA director Goss after my order to destroy the tapes. He was calm and gentlemanly as always. I told him that if this later became a big issue, I was willing to take the heat for it. He bemusedly speculated that if it did, he would be the one taking the heat.

  Years later I heard that Goss felt that I had denied him the opportunity to find a solution to the tape problem. But I was convinced, then and now, that the matter would have lingered on without resolution if I had not acted. In any case, Goss has told people that he believes I was well within my rights to make the decision I did. It was also years later when I learned that there were questions about whether the tapes were relevant to requests for documents in legal proceedings that were ongoing at the time. But it was my view that if the lawyers told me it was okay to destroy the tapes, I was on solid ground.

  After my single discussion with Goss in August 2005 about my decision to order the tapes destroyed, things got quiet. I had nothing to worry about. Nothing, other than a continuing war on terror, the situation in Iraq, which was spiraling out of control, and the regular series of threats that the chief of the clandestine service has to deal with, and the rest of the world, or so I thought.

  One thing that did not get done, or perhaps did not get done well enough, was notifying our congressional overseers that the tapes had finally been destroyed. Frankly, I did not give that a thought. I didn’t view telling Congress as my responsibility. Someone, perhaps the Office of General Counsel or the Office of Congressional Affairs, should have quickly informed the committee leadership. I didn’t think of it and apparently neither did anyone else. Had we done so, it might have mitigated some problems down the road. On the other hand, the cynic in me says that it also might have just accelerated the leaking of the whole issue to the press.

  Time and the Agency marched on. By May 2006 the CIA had another new director, the tenth and final one for whom I would work. General Mike Hayden, former head of the National Security Agency and most recently top deputy to the DNI, John Negroponte, had been selected to succeed Porter Goss. Because the EIT program was increasingly drawing public scrutiny and criticism, one of his early decisions was to take the May 2004 IG report on the interrogation program and share it with the entire oversight committees and their staffs (previously only the committee leadership had had access to it). Despite the fact that Hayden, like his predecessors and those of us in the Directorate of Operations, thought the report was wrong in many respects, he wanted to set the tone of inclusiveness by sharing it with the broad swath of our overseers. Recall, now, that the report had three lengthy paragraphs on the past use of videotapes.

  In August 2006, Hayden sent a four-page memo to the national security advisor, Steve Hadley, saying that in his opinion it was time to bring the CIA’s detention program out of the shadows. We were never set up to be jailers, and he
explained that because of changes in the law, leaks in the media, and diminishing returns from the senior al-Qa’ida operatives in our custody, he believed that the time was ripe to move the most senior detainees to Guantanamo Bay, empty the black sites, and reveal the broad outline of what had been done in them.

  On September 6, 2006, President Bush announced that Abu Zubaydah, KSM, and twelve other top al-Qa’ida operatives had been moved to Gitmo. He publicly confirmed, for the first time, some of the details of the interrogation program that we firmly believed was not just the CIA’s program, not the Bush administration’s program, but America’s.

  In March and April 2007, Agency lawyers went to SCIFs (Secure Compartmented Information Facilities) on Capitol Hil, where a large number of Hill staffers were briefed in much greater detail about the EIT program. In Agency parlance they were brought into the “compartment.” At least fifteen Senate staffers and a number of House staffers were given deep insight into the program, including the fact that tapes had once existed and had since been destroyed. In routine (although classified) communication with the Hill through that spring, Hayden told some members of Congress that the tapes had proven of no use for intelligence purposes and that the practice of making them had ended and existing tapes had been destroyed.

  During this period, a cottage industry had arisen of journalists and authors trying to unearth juicy details about the interrogation program. They played games of “can you top this” and fought over anonymous sources who would reveal the latest sordid details about these still-secret activities.

  Mike Hayden remembers exactly where he was when he heard that word of the destruction of the tapes had leaked. It was November 15, 2007, and he was sitting at Andrews Air Force Base waiting for a massive storm to lift so that he could fly to New York City and receive an award from a group called the Business Executives for National Security. While he was waiting in the distinguished visitor lounge, a member of his staff got a call from headquarters. A former intelligence official had called the office to let the Agency know that Mark Mazzetti, a reporter for the New York Times, was calling around Capitol Hill and to former Agency officials asking about the destruction of videotapes. From the sound of it, Mazzetti had quite a lot of information and was putting the worst possible spin on the decision.

  There is no savvier Washington insider than Mike Hayden, and you didn’t have to paint a picture for him. Take a story about the destruction of secret videotapes containing images of enhanced interrogation at black sites, sprinkle in a liberal dose of such phrases as “obstruction of justice,” and you have a made-for-D.C. scandal. The storm never cleared for Hayden. His trip to New York was canceled. And it took more than three years for the storm to clear for me.

  Since he was not director when the tapes were made or when they were destroyed, the first thing Hayden had to do was some fact-finding. He was vaguely familiar with the tapes issue when he was deputy DNI. While he knew a little about the matter, it has not been a front-burner issue for him. Now it was. Hayden directed his senior staff to call together representatives from the Directorate of Operations and the General Counsel’s Office, as well as representatives from Legislative Affairs, the IG’s Office, and the public affairs staff to come together and reconstruct what had happened and why. Because the issue had been so highly classified and tightly compartmented, that wasn’t easy to do. The people in the press office braced themselves for what they expected to be an early call from the New York Times asking questions about the tapes.

  I wasn’t on hand to be of much help when the initial tipoffs about the press interest came in. In September, I had concluded that I was burned out. After thirty-one years at the Agency I was out of gas. It was time to step aside and let someone else lead the clandestine service. When he became CIA director, Hayden had persuaded Steve Kappes (the former DDO who left the Agency rather than cave to the demands of the Gosslings) to return to be his deputy. When I decided to retire, Kappes convinced his former deputy, Mike Sulick (the guy whose dustup with Goss’s chief of staff precipitated their joint departure), to return as well and take over my job. It was a remarkable change of fortune since two years before.

  The CIA has a valuable and necessary “transition” program that allows retiring officers to both wrap up their government careers and learn, often after decades of living undercover, how to come out of the cold and into the sunlight. It is not an easy thing to write a résumé when most of what you have done for the past three decades is still considered secret. Nor is it easy to explain how your skills running agents and stealing secrets might be of benefit to a future civilian employer. So I was immersed in the transition process, with the intent to retire at the first of the year.

  I was taking a few days off from this transition process to take one of my sons back to college in Georgia when I got a frantic call from my usually unflappable former chief of staff. She told me about the New York Times’ efforts to expose the tape-destruction effort and the impression that my actions would be painted in the worst possible light. I wasn’t too concerned. I knew what I had done was right and that there was a lengthy paper trail to demonstrate that we hadn’t acted without considerable prior thought and consultation. How bad could this be? I asked myself.

  The CIA’s public affairs shop waited for the call from the New York Times the rest of that week in mid-November. They waited the next week, Thanksgiving week, and the week after that. No questions came about the tape issue. Mazzetti was one of the beat reporters who routinely covered intelligence, and he was in regular contact about other matters, but said nothing about the tapes. It was getting frustrating waiting for the expected shoe to drop.

  Although I was in the transition program, I hadn’t quite shed myself of all my official duties. A group of House intelligence committee members and staffers had scheduled an official trip to Latin America, and because I was so well-known, both to them and to the countries they were visiting, they asked me to go along as a semi-official escort. These kinds of trips are generally a mixture of official briefings, meetings with host country officials and intelligence service reps, and occasional events to give the congressional delegation a taste of the local culture.

  We were at one such event in Buenos Aries, where colorfully dressed locals were dancing the tango on Calle La Florida, when the committee’s majority chief counsel, Jeremy Bash, asked me, “What is this I hear about an issue involving the Agency destroying some videotapes?” Rather than tell the story multiple times, I called all the members and other staffers together, right there in the street, and gave a brief synopsis of what was done and why. It shouldn’t have been new business for any of them. I believed they all had been briefed on the existence of the tapes and their destruction before, but I tried to quickly put the story in context for them. There wasn’t much reaction from most of those present—perhaps they wanted to get back to tango-watching—but I distinctly remember Bash telling me: “Jose, you were justified in what you did.”

  The long-awaited call from the New York Times finally came to CIA public affairs in the early evening of Wednesday, December 5. The reporter indicated that he had a lot of information, confirmed by various current and former government officials, and that his paper was prepared to publish the story in the next few days. Since we knew that he had been working on the story for at least the better part of a month, the call left the impression that he was going through the motions of soliciting the official response to go along with a story that had already largely been written.

  One of the great frustrations of people who work at places like the CIA is the fact that too often they hear bad news about their own organization first by reading it in the newspaper. Hayden was determined not to let that be the case in this instance. The team that he had tasked with looking into the matter on November 16 had a pretty good handle on the issue and quickly drafted a statement that he could share with the Agency workforce.

  The statement started by saying, “The press has learned that back in 20
02, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005.” While Hayden made clear that while the actions took place long before he became director of the CIA, he did not take the easy way out and hide behind an “it didn’t happen on my watch” excuse. He told the workforce that “the decision to destroy the tapes was made within CIA itself,” adding that the decision was made “in line with the law.” He reported that leaders of the Agency’s oversight committees had been “informed of the videos years ago and of the Agency’s intention to dispose of the material.” Hayden stressed that the interrogation program was “of great value to our country. It has helped disrupt terrorist operations and saved lives.” He predicted, however, that “we may see misinterpretation of the facts in the days ahead.” A CIA director has never been more right.

  Hayden directed that the statement be released to CIA employees worldwide. At about the same time it was delivered to the New York Times. As might be expected, an unclassified statement on such an explosive matter leaked almost instantly. A reporter from the Associated Press called and was given the same statement. The New York Times rushed its story onto its website in an effort to protect its “scoop.” The AP, as wire services typically do, played the matter straight, citing Hayden’s explanation for why the tapes were destroyed: “Out of fear that they would leak to the public and compromise the identities of U.S. questioners.” The New York Times, on the other hand, relied on the spin from unnamed current and former government officials saying that the “tapes were destroyed in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks.” That was never the case.

  There was one other interesting difference between the first AP story on the destruction of the tapes and that of the New York Times. The AP portrayed the action, as Hayden had, as a decision of the Agency. The Times quoted “current and former intelligence officials” as saying that the decision was made by “Jose A. Rodriguez, Jr.” Well, at least they got that part right.