Company Man: Thirty Years of Controversy and Crisis in the CIA (43 page)

By the beginning of 2006, I was as tight with Porter Goss as I ever was with any CIA director, before or since. He was a little more than a year into the job by then, and I could never have predicted that our relationship would become so close. Surprisingly, for someone who was a veteran of many successful congressional campaigns, I found Porter to be preternaturally self-effacing and unassuming. Personalitywise, George Tenet was far better in the backslapping, flesh-pressing department, and George had never been elected to anything.

Inside the Agency’s rank-and-file workforce, Porter’s innate modesty and reticence were widely misinterpreted as remote imperiousness, but the truth was, he was a thoroughly decent human being without a pretentious or duplicitous bone in his body. Financially secure and holding
a safe congressional seat, Porter had no desire or need in his twilight years to take over an institution awash in turmoil, but, as Bill Webster did two decades before, he took the job simply because he was a patriot and his president had asked him to do it.

Sometime near the end of 2005, Porter first raised with me the possibility of becoming general counsel, a position requiring presidential nomination and Senate confirmation. It was just a trial balloon on his part. Was it something I was interested in his pursuing with the White House, which would have the final say on the matter? “You know,” he cautioned, “if your name is sent down to the Hill, it could get rough and ugly for you.” He was alluding to the fact that by then my name was popping up in media accounts as one of the key players in the development and implementation of the EIT program.

I was not deterred, and I didn’t play hard to get. “Sure,” I responded immediately. “I would be honored to have the job.” After all, I knew what the position entailed, having been the GC in everything but name for almost three of the preceding four years. Plus, there was the ego factor—for three decades, no career CIA attorney had held the top position on a permanent basis, and none had ever been confirmed by the Senate to the post. At the same time, apart from my own selfish motives, I thought my making it to the top could serve as a signal to the 120 or so OGC “lifers” in the office that, with enough hard work and patience, they could legitimately aspire to get there someday, too.

Finally, as for Porter’s warning about a potentially bruising confirmation battle, I didn’t pay that much heed. Surely, I figured, he was being overdramatic. I wasn’t some untested political hack/dilettante being foisted on the Agency. What’s more, it wasn’t like I was being nominated for some cabinet position. I mean, who on the Hill or in the media would really care who the CIA’s lawyer was?

“Okay,” Porter said. “I’ll pass your name to the White House. I don’t know how the political people there will react, but it’s going to take time for all of it to sort out. You’ll have to be vetted and interviewed, if it even gets that far. So you need to be patient.” No problem there. I had been around for thirty years, and this was a moment I never thought would come. I could wait for a while.

A couple of weeks later, my wife and I were in Marbella, Spain, in the middle of a long-scheduled vacation on the Costa del Sol. One morning,
the hotel switchboard relayed a terse message in fractured English: “Your office says to call immediately.” With a combination of fear and curiosity, I dialed the number from my personal cell phone. I had no CIA-issued secure cell phone with me, so I was contemplating how the hell I was going to be able to hear and say anything about what I assumed was some highly classified topic.

As it turned out, the topic wasn’t classified, but it was stunning nonetheless. My office told me the White House had just called: My nomination was being finalized. There would be no interviews needed, but I had to fill out and sign some official White House forms. Now. The White House wanted a fax number to send them to me.

“Here?” I asked numbly. “Do they know I’m in this hotel in the middle of nowhere on the Spanish coast?” Yes, I was told, the White House knew that. I didn’t know whether to be overjoyed or flummoxed by what I was being told to do.

I got the fax number from the hotel front desk and passed it along to my office. I didn’t want to loiter indefinitely around the lobby, and besides, I told my wife we needed to go out somewhere to celebrate, or at least recover from, the unexpected news. When we returned to the hotel a couple of hours later, I went to the front desk and asked, as nonchalantly as I could, whether something had arrived for me. The young Spanish desk clerk, his eyes as big as saucers and his hands trembling, silently passed me a thick sheaf of papers. Right on top was the fax transmission sheet, with the name and image of the White House prominently displayed. Below that were numerous forms, largely blank except for two bold-faced typewritten references sprinkled throughout: my name, and the words
General Counsel, Central Intelligence Agency
.

Apparently the desk clerk could read English. I must say, the service at the hotel seemed to get a lot better after that.

Notwithstanding all the rush-rush in Marbella, my nomination was not officially announced by the White House and sent to the Senate until March 16, 2006. Inside the Agency, the news elicited lots of congratulatory notes from my co-workers. Outside the Agency, there was barely a ripple.

I didn’t realize it at the time, but I had a lot more waiting to do. It would take the Senate Intelligence Committee fifteen months to schedule my confirmation hearing.

In the meantime, I didn’t have the luxury to just sit on my hands. Outside events, and intensifying controversy, were driving the EIT program steadily downhill. The Agency was being rocked from top to bottom. And I continued to be in the middle of all of it.

Porter Goss deserved a better hand than he was dealt in 2006. He inherited the EIT program when he came to office in November 2004, and the wheels began coming off of it as soon as he arrived. He steadfastly believed in it, supported it unequivocally, but by the beginning of 2006 that was becoming a lonely position. The Bush administration was under siege—not just by the lingering, horrifying images of Abu Ghraib, but by its tone-deaf response to the Hurricane Katrina disaster and the growing disenchantment with the seemingly open-ended chaos in post-Saddam Iraq. The administration was counting on Porter to serve as the chief point man to save and maintain the beleaguered EIT program or, perhaps, to be the fall guy if it went down the tubes. It didn’t help that Porter no longer had daily access to the president via the daily Oval Office intelligence briefings; his place had been taken by John Negroponte, director of the new, congressionally created Office of National Intelligence.

But Porter was both a gentleman and a good soldier, and he accepted his role and did the best he could to salvage the EIT program. He worked his network of friends and former colleagues in Congress—all but a handful of whom were still being kept in the dark about the program—but the deck was stacked against him. It wasn’t just the Democrats, who, not surprisingly, were unanimously adamant in opposing a Bush-authorized program most of them knew nothing about. The most high-profile and influential opposition came from Senator John McCain, a Republican and, of course, a storied war hero and victim of prolonged torture by his North Vietnamese captors. McCain was characteristically blunt about what he was reading in the media reports about waterboarding, sleep deprivation, and the like: It sounded like torture.

Porter had been friends with McCain from their days together in Congress, and he got permission from the White House in late 2005 to lift its tight curtain of secrecy over the program so that he could give McCain a private, one-on-one briefing, walking him through all the techniques, how they were applied, the safeguards that were in place, the demonstrable results the EIT program had yielded, and so on. Basically, it would be
intended to separate the actual facts from the hyperbole, the distortions that colored many of the media reports.

I remember when Porter came back from the briefing. A normally even-keeled, taciturn man, he was clearly shaken. “I got nowhere,” he told me. “I don’t think John even heard a thing I told him. He just sat there, stone-faced and looking straight ahead, like he didn’t know me. No questions, no comments, no nothing. When I was done, he just said, ‘It’s all torture,’ and got up and left.” Porter paused and then this lifelong, rock-ribbed Republican quietly added, “It wasn’t so much that he objects to what we’re doing. I can accept that, and he has the right to feel that way more than anyone else. But it was like he was in another dimension.”

The White House, in the person of National Security Advisor Steve Hadley, then decided to see if it could make any headway with McCain. It became my role to serve as the focal point with Hadley’s staff, getting updates on his negotiations with McCain. The key language of a bill he was pushing—which came to be known as the McCain Amendment—barred the U.S. Government from committing “cruel, inhuman or degrading treatment or punishment” on its detainees. I passed a series of suggested “fixes” to Hadley’s staff, like an exception for “lawfully authorized activities” or immunity for officers operating “in good faith pursuant to presidential direction.” McCain rejected all of them. When that happened, I realized that now the Agency was in an even deeper hole—gone was any possibility down the line to assert that the broad language of the bill was not intended to encompass the EIT program. There was now a record that removed any doubt that that’s exactly what McCain intended, and it was also clear that he wanted Agency employees, even if they were just following orders, kept personally in the crosshairs. Above all, I couldn’t get McCain’s terse verdict to Porter—“It’s all torture”—out of my head.

Hadley ultimately did manage to wring a small concession from McCain, who agreed to insert vague language into his bill that essentially would have allowed anyone involved in the EIT program to use “good faith” reliance on legal advice as a “defense” in any ensuing proceeding. It gave me little or no comfort; it still left CIA officers involved in the program perilously exposed. Any future investigation—presumably not by the Bush Justice Department, but who knew about a succeeding administration?—could take months or even years, even if no charges were
ultimately filed. It would be a harrowing ordeal, with potentially dozens of middle- and even low-level CIA officers having to hire and pay for their own lawyers, all because they had just been doing what the highest levels of the government had assured them for years was authorized and lawful. Maybe as a practical matter an actual criminal investigation was a long shot, but to me, with the EIT program becoming more politically toxic by the day, it was a scenario that seemed all too plausible.

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.