Hard Measures

by Jose A. Rodriguez, Jr.

  Over the years casual observers would have been forgiven if they assumed the “C” in “CIA” stood for “controversial.” The Agency has found itself embroiled in scandal and controversy on a regular basis. But even veteran Agency watchers were stunned at the response to the initial reports about the destruction of the tapes. It was the lead story in newspapers around the world, the top item on television newscasts, and finger-pointing fodder for politicians and pundits everywhere.

  I cannot adequately explain how much of a shock it is for someone like me, who had spent the past thirty-one years living undercover, to turn on the network nightly news programs and see my official government photo (which had been considered classified until a few months before) flashed on the screen as the alleged perpetrator of some purported dastardly deed.

  Just three months before, as I was preparing to retire, I had gone through the process at the Agency of dropping my cover. One reason I did so was to allow me to participate in a border security conference in El Paso, Texas, at the invitation of Congressman Silvestre Reyes, chairman of the House Permanent Select Committee on Intelligence. My main motivation for coming out of the shadows was so that I could speak out on behalf of minority recruitment in the intelligence service. I wanted young men and women to see that not only is it possible for people of diverse heritages to rise to the top of the clandestine service, but in many ways being a member of a minority can give you an operational advantage. The CIA, and all of government, had done a lousy job of bringing minorities into its ranks and I hoped to make some progress in addressing that shortfall in my final months as an Agency employee. Still, standing up in front of four hundred people in a public setting, with TV cameras rolling, and saying, “My name is Jose Rodriguez; I’m the director of the National Clandestine Service, the espionage service of the United States of America” ran counter to everything I had done for the past three decades. I told people at the time that lifting your cover was like “dropping trou in public.” Not a comfortable feeling.

  Congressman Reyes introduced me at the conference. With more than a little hyperbole, he favorably compared my past exploits to those of Jack Bauer on the TV show 24. He called me “an American hero.” Those were the last kind words I would hear from a member of Congress for quite some time.

  When something like the tape-destruction story breaks in the media, reporters go to the old reliable quote machines who are always ready with an opinion whether they have the facts or not. In the case of this story, they didn’t disappoint. In the first twenty-four hours after the allegations surfaced, Senator Ted Kennedy (D-MA) declared, “We haven’t seen anything like this since the eighteen-and-a-half-minute gap in the tapes of President Richard Nixon.” On the floor of the Senate he asked, “What would cause the CIA to take this action?” And he responded to his own question: “The answer is obvious—cover up.” Senate Armed Services chairman Carl Levin (D-MI) declared that General Hayden’s explanation of the tape destruction was “a pathetic excuse.”

  As luck would have it, the very day that the tapes story first appeared in the nation’s newspapers, Friday, December 7 (the anniversary of Pearl Harbor), was also the day of the CIA’s annual holiday party. It is scheduled months in advance, and the Agency’s director typically invites senior government officials, members of Congress, former CIA directors, and top Agency officers (who are not undercover) to a festive occasion held in the main lobby of the headquarters. The reception area is adorned with poinsettias, a small combo plays holiday music, and guests chow down on heavy hors d’oeuvres prepared by Agency chefs, some of whom trained at the other CIA, the Culinary Institute of America. Hayden was late for his own party, however, detained in his office seven floors above with urgent phone calls from the White House, the attorney general, and others trying to get a handle on the crisis. Some of the congressional invitees arrived fresh from media appearances at which they bashed the Agency handling of the tapes matter. Journalists in attendance worked the crowd at the off-the-record party for fresh insights into the burgeoning scandal. Mark Mazzetti of the New York Times, who had been the first reporter to pursue the story, had been on the invitation list, but did not attend.

  Since Washington is the kind of place it is, it was only a short time after the first stories broke before people all over town started to distance themselves from my controversial decision. ABC News reported on the evening of December 7 that “according to three officials,” White House counsel Harriet Miers had “urged the CIA not to destroy the tapes.” The next day the New York Times had two front-page stories about the matter. The lead of a story, by Mark Mazzetti, that morning had said that “White House and Justice Department officials, along with senior members of Congress, advised the Central Intelligence Agency in 2003 against a plan to destroy hundreds of hours of videotapes,” citing “government officials” as the source. Mazzetti added that the CIA’s “own top lawyer, John A. Rizzo,” was “angry at the decision.” Mazzetti wrote that I had “reversed” a previous decision to preserve the tapes, which was simply untrue. No one had made any decision for three years until I did what needed to be done. The AP quoted “a former intelligence official” as saying that then–CIA director Porter Goss was “upset with the tapes’ destruction,” adding, however, that “though Goss believed this was a bad judgment it falls within the prerogative of the directorate of operations.”

  Armchair critics weighed in, too. Law professors were quick to pronounce the tapes’ destruction a “very big deal” and possible “obstruction of justice.” I didn’t need my law school diploma to know that seeing your name in the same sentence as the words “obstruction of justice” is not a good thing. I called one of the senior lawyers in the Directorate of Operations and said: “I need a good private attorney who could obtain security clearances. Can you recommend someone?” It was clear that my interests and those perceived by the CIA might not be identical anymore. He promised to get back to me.

  As soon as the media firestorm ignited, news organizations tried to track me down to get a comment or, at a minimum, get a picture of me refusing to comment. Despite the fact that I had until recently been undercover, and despite the fact that at the time there were more than five hundred Jose A. Rodriguezes in Virginia, Maryland, and the District of Columbia, all places where CIA headquarters employees typically live, within a few hours there were camera crews knocking at the door of my home, slipping notes and business cards under the door, and pestering my neighbors. The notes generally said that they simply wanted to offer me a chance to respond to “what everyone else was saying” about me. The reporters didn’t go so far as to specify what that might be. When we didn’t answer the doorbell, one news crew drove fifty feet up the street and just parked, staring at the house for hours on end.

  Since the first stories on the tape controversy had run on Thursday, December 6, and the crescendo built on Friday, I figured things would calm down a little over the weekend. Wrong again. On December 8, the Justice Department and CIA inspector general issued a rare Saturday press release. In an effort to manage the crisis, they announced that they were launching a joint preliminary inquiry into the tapes’ destruction to determine if a full-fledged investigation and potential criminal charges were called for. The Los Angeles Times quoted an unnamed senior U.S. official as saying, “Everybody from the top on down told them not to do it, and still they went ahead and did it anyway.” I was starting to feel a little lonely.

  Wasting little time, the next week congressional oversight committees called Director Hayden to testify for six hours over two days. Although they were closed sessions, the members wasted no time running out to the “stake out” positions outside the hearing rooms to tell the waiting media that they were not satisfied and would demand more.

  Despite feeling literally and figuratively under siege, I couldn’t sit still. My parents’ sixtieth wedding anniversary was coming up, and Patti and I and the boys were scheduled to fly to Puerto Rico for the festivities. I called CIA director
Hayden to thank him for his support and to tell him where I was going. I didn’t want him to hear that the media followed me to the airport and speculate that I was making a run for the border. Hayden was cool, calm, and supportive, as he was throughout the ordeal. But I suspect he, too, was surprised at the vehemence of some of the reporting on the tapes issue. Some news accounts even began referring to the matter as “Tapes-gate.” Fortunately that label didn’t stick.

  We landed in San Juan, rented a car, and made the three-hour drive across the island to my parents’ home in Mayaguez. While en route to my parents’ I got a cell phone call from an Agency attorney, who told me that the renowned criminal defense attorney Bob Bennett had agreed to help me and that I should call him as soon as possible. I agreed to do so.

  After arriving and spending a little time trying to explain to my elderly parents why I was in such hot water, I excused myself to use my mother’s antiquated computer to log on to the internet and see how the news coverage was going.

  Coño! I thought. I knew I might someday take a little heat over this, but I was starting to feel like Joan of Arc. I decided to call Bob Bennett. Hearing that an attorney like Bennett is willing to help you is like hearing that the pope is waiting to bless you. Bennett is a legendary Washington lawyer who represented President Clinton during the Lewinsky scandal and Caspar Weinberger during Iran-Contra. It was only later that I wondered if the Agency thought I needed a world-class defender because I was in a world of trouble.

  While my siblings and family friends were celebrating my parents’ anniversary, I excused myself again to make a call to Bennett. Over the next week, I spoke to him for hours, giving him as much information as I could share over the phone. He asked me to lay out the whole story as best I could remember it. When I finished my tale he simply said, “Okay. Come see me when you get back to town.”

  I felt awful about my notoriety intruding on what was supposed to be a festive occasion for my parents. Just a few months before, my cover had been lifted, and for the first time in thirty years they could tell their friends and neighbors what their son really did for a living. For a few short months they could tell friends that a member of Congress had called their son a hero. Now everyone could read stories in which lots of senators and other top officials called him a bum.

  When we returned to Washington, my parents came with us. I tried to project great confidence that this was a tempest in a teapot. “It’ll all blow over before you know it,” I told Patti, my parents, my siblings, and the boys. I could tell they weren’t buying the happy-face I was painting on the situation. But having the whole family together was a source of great strength for me.

  Once back in the D.C. area, I went downtown to meet Bob Bennett and his longtime law partner Carl Rauh in person. I laid out the story in even greater detail as he silently took notes. Bob had been at the center of scores of high-profile legal battles. He would know how much trouble I was in. When I finished, he put down his pen. “I’ve got it,” he said as he closed his notebook. What he said next gave me great comfort. “You are a hero,” he simply said.

  There weren’t a lot of people in Congress who appeared to agree with Bennett. The announcement of a preliminary joint DOJ-CIA inspector general investigation didn’t seem to slow the crowd with pitchforks and torches demanding that more formal proceedings begin right away. Senator Joe Biden (DDE), who was running for his party’s presidential nomination at the time, was among those who called for an “independent counsel,” saying that the administration didn’t have “the credibility to do it on their own.”

  But the congressional intelligence oversight committees weren’t about to miss a chance to be center stage in a media frenzy like this. Both the Senate committee, chaired by Senator Rockefeller, and the House committee, chaired by Congressman Reyes, announced plans to hold hearings to get to the bottom of the matter and to call this Rodriguez fellow who caused all this trouble as a witness. “Not so fast,” the Department of Justice said. DOJ officials feared that Congress would screw up their criminal investigation. Bob Bennett told reporters that he was not going to let his client “be a piñata for people with a political agenda during an election year.” Whether it was intentional or not, I enjoyed the allusion to my Hispanic heritage.

  One of the things that got congressional members riled up was the implication in Hayden’s original press statement that “our oversight committees also have been told that the videos were, in fact, destroyed.” While this was true, many of the members weren’t personally informed until well after the tapes were destroyed, and the implication that they might have known and remained silent about an action they now were condemning really fired them up.

  The anger was bipartisan. Republican congressman Pete Hoekstra said on Fox News Sunday that “certain statements that came out of the [intelligence] community might have been misleading.” He went on to rant about an intelligence community that “is incompetent, is arrogant, and it has developed—it’s become political.” His take throughout the tapes matter was that the CIA didn’t believe it was “accountable to the president” or “accountable to Congress.” He had made his conclusions before any hearings were held. Democratic congresswoman Jane Harman piled on, too, saying that our actions smelled “like a cover-up of the cover-up.”

  Hoeskstra said the House committee would likely defy any suggestion by DOJ that they delay their hearings until Justice’s investigation could take place. He predicted that the committee would issue subpoenas for witnesses and documents but had not decided if it would offer immunity in exchange for any testimony.

  The Agency and General Hayden were in quite a fix. They relied on the oversight committees to authorize and fund the CIA’s activities and couldn’t afford to alienate them too severely. On the other hand, when DOJ is urging you not to do something for fear of impeding a criminal investigation, you need to pay attention.

  Meanwhile, the media response continued to build. Scores of newspapers around the country editorialized about the tapes matter. I never saw a single one that was in any way supportive of the action I had ordered. Of course, the editorial writers had precious little information on which to base their views, but it seemed information was not a requirement before rushing to judgment.

  January 2, 2008, was memorable for a couple of reasons. After thirty-one years as a CIA officer, it was my next-to-last day as an Agency employee. Rather than having a grand retirement ceremony in the CIA headquarters, as I might have envisioned, I drove to a nondescript outlying Agency building in the northern Virginia suburbs, where I unceremoniously handed my access badge that had opened doors around the world to a security guard and walked to my car by myself. I drove home to a very uncertain future.

  That same day, Attorney General Michael Mukasey announced the launching of a full-blown criminal investigation into the destruction of the tapes. The recently confirmed Mukasey also revealed that he had assigned a dogged veteran career prosecutor, John H. Durham, as a special prosecutor, reporting directly to the deputy attorney general.

  I understood why Mukasey felt he had to do what he did. The heat was too intense for him to declare “no harm, no foul.” Still, it was not a good feeling to read in his announcement the statement that there was “sufficient predication to warrant a criminal investigation of a potential felony.”

  I was relieved that at least he had not succumbed to the pressure to appoint an independent counsel, who would have reported to no one. History had shown that independent counsels tended to go on forever, dragging out investigations interminably and becoming what some people in Washington call “a self-licking ice cream cone,” in other words, an organization that serves no useful purpose other than to perpetuate its own existence. Knowing that the record was replete with documentation that various lawyers had told me in writing that I was empowered to do what I did, I figured the investigation might last a couple of months before it was dismissed. That turned out to be not one of my more accurate intelligence predictions.
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  Suddenly I found myself retired, under criminal investigation, and (except for my family) feeling pretty much alone. Don’t get me wrong. I got a lot of calls of support from friends and former colleagues, but I likened it to a funeral. Lots of people show up for the service and express their sympathies, but then they go home or back to work and get on with their lives. Only the next of kin are left to deal with their sense of enormous loss.

  During the late fall, when I was in the transition program, I was looking forward to getting a civilian job and starting a new phase of my life. Senior operations officers from the CIA have a pretty good track record of landing challenging and well-paid jobs in the private sector when they leave the clandestine service. I had had several flattering inquiries about my availability and had even traveled to New York City a couple of times to discuss some intriguing job prospects. Needless to say, having the attorney general announce that you are under criminal investigation does not give a boost to your employment prospects. Potential employers suddenly became vague, distant, and noncommittal. As time passed, I began to wonder, even if someone did offer me a job, could I in good faith accept it knowing that at any moment I might have to drop everything to focus on my own defense?

  Eventually a standoff between the congressional oversight committees and the Department of Justice was resolved so that they could continue their hearings. The House committee scheduled a hearing for January 16 and wanted to call both John Rizzo and me to testify. Rizzo agreed to meet with the panel.

  Bob Bennett told me that many people who consider themselves completely innocent, as I did, are offended at the notion of declining to testify and exercising their Fifth Amendment rights. He gingerly approached the subject with me. “Jose, you and I know that you have done nothing wrong, but it is my legal advice that you go before the committee only if they subpoena you and, if they do, take the Fifth unless they grant you immunity in exchange for your testimony.” From his tone I think he was expecting me to fight him on it.