Company Man: Thirty Years of Controversy and Crisis in the CIA (45 page)

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 going to absolutely slaughter him.”

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.

By this time I had served nearly thirty-two years—more than half of my life—as an attorney at the CIA. But, like virtually everyone else’s in the spy world, my work was secret, and I was largely unknown. My nomination changed all that. And it wasn’t because the CIA general counsel position was so attention-grabbing in itself—sure, the job is significant and prestigious in its own way, but never before had it been a position with lightning-rod controversy attached. The nominations of my two immediate predecessors had sailed through the Senate without a hitch or a blip on the political/media radar screen.

When my nomination happened to come along, it made for a perfect political storm: Few if any Bush nominations were then pending on the Hill, and my fingerprints had been all over the CIA’s post-9/11 detention and interrogation practices since their inception. And so I became a foil, a symbol, and, ultimately, a casualty of the noisy national war of words over how the U.S. Government should legally and morally conduct the war on terror.

Notwithstanding all of my years of experience at the CIA, it is clear to me only now that I was still a naïf on that day as I entered the hearing: It really wasn’t about me at all.

It’s not that I didn’t expect to be questioned aggressively. Most of the classified written questions the Senate Intelligence Committee sent to me in advance of the hearing were about the detention and interrogation practices and my role in their creation. Moreover, in the weeks leading up to the hearing, various articles in the media speculated that Democrats on the committee would seize the occasion to rail against the wisdom, legality, and morality of these practices. On the morning of the hearing, a
New York Times
piece previewing the session quoted Buzzy Krongard, the former CIA executive director, as predicting that I would be used as a “piñata” by some of the senators. Clearly, this would be no cakewalk, and I knew it.

But I didn’t anticipate a public flogging, either. For one thing, the hearing was being divided into two back-to-back segments, the first open to the public, followed by a “closed” session to allow discussion of classified matters. At the committee’s direction, I drafted separate opening
statements for both, but because the Agency’s post-9/11 counterterrorist activities were encased in the highest secrecy, my focus was on gearing up for the closed session. That would be the longer and more contentious session, I figured, and the open session would be likely sparsely attended by the senators and largely bland and perfunctory in nature.

I did allow myself to think that the open session would afford an opportunity to offer to the committee—and whoever in the public cared—my perspective on the essential role that the rule of law plays in the intelligence world and the unparalleled responsibilities, risks, and rewards for an attorney operating in that world. Nothing dramatic or explosive, I thought, but it could present a rare opportunity to contribute to Congress’s and the public’s understanding of the Agency while perhaps debunking some of the enduring misconceptions and myths about the big, bad, lawless “rogue elephant” CIA.

Finally, purely as a matter of my own self-interest, I hoped that I could use the open session to demonstrate that it was an enormous plus to have someone in the top CIA legal job in the post-9/11 era who was already steeped in the spy business. No previous incoming general counsel ever had those sorts of credentials, I reasoned, and so my decades of experience would surely count for something.

Those were my expectations and hopes on the day of my hearing. They proved to be unfounded.

The canary in the coal mine came in the unlikely form of Kit Bond, the burly Missouri Republican vice chair of the Intelligence Committee. Minutes before the hearing began, he bounded into the holding room in the Dirksen Building where I was waiting to be summoned, expectant but not (I thought) overly anxious about what awaited me. As he greeted me with a vigorous handshake, Bond grinned and asked, “Are you ready for a buzz saw?” It was not exactly a confidence-building icebreaker.

In fact, despite my being nominated by the president of his own party, Bond had never bothered to meet me before that day, having rebuffed my request for the traditional courtesy call a nominee makes to the members of the committee considering the nomination.

This encounter with Bond underscored a cold reality about my situation: Republicans on the Intelligence Committee—with the notable exception of John Warner—had no particular stake or even interest in
my being confirmed. While by definition I was a “political” appointee, I had no Republican pedigree or connections. Indeed, during the lengthy White House vetting process, no one in the Bush administration had ever asked me about my party affiliation. Not once. (For the record, I am a registered Independent who grew up in Massachusetts, and since 1972 I have resided in the District of Columbia. Hardly Republican bastions.) Here again, I was hopelessly naïve: I figured the fact that I was a career public servant at the CIA, not some partisan dilettante/hack parachuting into the most necessarily apolitical of all federal agencies, would garner me some trust and credibility with both sides of the committee. In the end, it got me nothing.

The only senator in my corner, to my initial surprise but everlasting gratitude, was John Warner, the patrician Republican from Virginia who was approaching the end of a distinguished public career. We had known each other only slightly before then, but alone among his colleagues he stepped forward to offer me advice and support. Warner loved the CIA and over the years consistently demonstrated his affection and respect for the Agency workforce, so I suspect he was instinctively drawn to a CIA “lifer” like me. It had to be that, because while I had worked for over three decades in his state, I have never lived there. So, besides our lack of personal ties, I wasn’t even a constituent.

“Our backgrounds are a lot alike,” Warner told me at one of our private meetings leading up to the hearing. This from a man who in his twenties had been a decorated naval officer during World War II and then went on to become a federal prosecutor, a secretary of the navy, and ultimately an immensely popular and respected member of the Senate for almost thirty years. And who had once been married to Elizabeth Taylor, for crying out loud.

I was deeply touched and flattered that he thought we had anything in common, but the comparison was laughable, and I almost did laugh when he made it to me. Nonetheless, looking back now, when John Warner passed word to the Agency that he would be “honored” to introduce me at the hearing, it was the high point, and my proudest memory, of my confirmation process.

With Warner seated next to me at the witness table, I did my best to look relaxed as I waited for the Intelligence Committee chairman, Jay Rockefeller,
to gavel the hearing to order. And then, one by one, the members filed in and took their places: Dianne Feinstein, Ron Wyden, Russ Feingold, Sheldon Whitehouse, and Carl Levin. Counting Rockefeller, the six senators had two things in common: they were all Democrats, and they were all harsh critics of the Bush administration’s counterterrorist policies and practices.