Company Man: Thirty Years of Controversy and Crisis in the CIA (46 page)

On the Republican side of the dais was Bond, presumably in attendance only because protocol demanded his presence as the committee vice chair. Aside from Warner, no other Republican bothered to show up. (The official record of the hearing lists the Maine senator Olympia Snowe as having attended; the truth is she came in midway through the hearing, walked over to her assigned seat, flipped her nameplate over, tossed me a desultory glance, and then turned and walked out. A fifteen-second appearance.)

Surveying the scene in front of me, I thought to myself: Uh-oh. Next to me, Warner murmured, “Good gracious,” before gamely trying to buck me up. “Nice turnout,” he whispered, nodding toward the murderers’ row of Democrats arrayed before me.

Of the Democrats on the committee, only Sheldon Whitehouse and Carl Levin had granted my request for a courtesy call in the weeks prior to the hearing. (“Dianne Feinstein is not courteous,” her staffer curtly responded to a CIA congressional liaison officer who had conveyed my request for a brief get-together.) I had a pleasant and unremarkable chat with Whitehouse, a relatively new member of the committee. Although he did express some unhappiness about the Bush administration’s refusal to turn over to him documents related to the National Security Agency’s post-9/11 terrorist surveillance program (about which I knew very little), we largely talked about his home state of Rhode Island, where I had gone to college, and where we had some mutual friends. He was cordial enough but gave no hint about his views on my nomination.

The Carl Levin “courtesy call” was an entirely different experience. With his rotund, rumpled appearance and prodigious comb-over, Levin always reminded me physically of the character actor Jack Weston, except that Levin is much smarter and harder-working, and more aggressive, than any of the characters Mr. Weston ever played in the movies. Levin lumbered into our meeting in the Intelligence Committee’s secured
offices a few days before the hearing, toting a thick stack of files that he had amassed in his capacity as chairman of the Senate Armed Services Committee (SASC), with jurisdiction over the Department of Defense. The SASC was in the midst of a long-running investigation of the DOD’s terrorist detention facility at Guantánamo Bay, and Levin had hired a passel of former prosecutors who for months had been peppering the DOD with volleys of extensive document demands.

Nothing wrong with that, of course, but Levin’s SASC investigators were also insistently pushing for information on the CIA’s detention and interrogation practices. The problem was that the CIA’s activities by design were separate and distinct from anything the DOD was doing; the high-ranking Al Qaeda operatives the Agency had been holding for years in CIA-run facilities overseas had only recently been transferred to Gitmo, and the Agency had never conducted any enhanced interrogation techniques there. Like all covert-action programs, the top-secret CIA activities were, by law, carried out under the aegis of the Intelligence Committee—of which Levin was a member—not the SASC. By mid-2007, the CIA had given the Intelligence Committee all the details of the program (save for the locations of the secret prisons), and it was the Agency’s position—with which I fully agreed—that those details were simply none of the SASC’s jurisdictional business. Accordingly, we had been politely but firmly rebuffing the SASC investigators.

So Levin was a frustrated and impatient man when he arrived, accompanied by the same stone-faced SASC staffer we had been stiffing for months. And Levin showed it, dispensing with any introductory pleasantries and immediately launching into a gruff cross-examination, shoving in front of me DOD documents alluding to the CIA that I had never seen before. I was caught off-guard, though in retrospect I should not have been.

I did my best under the circumstances, even attempting a couple of lame and utterly useless stabs at levity—“Don’t you want to save some of your good stuff for the hearing, Senator?” I wanly asked him at one point. Levin just grunted and plowed forward. He was not nasty, and he never threatened to delay or oppose my nomination. But by any measure this “courtesy call” went very badly because I was not prepared for it. I should have seen it coming, so I blame myself, not Levin.

And, hell, at least the guy took the time to meet with me.

In the immediate aftermath of the hearing, I actually thought I had survived it and done okay. The next day’s
Washington Post
described my demeanor as “affable and calm,” which gave me a modicum of encouragement. The article also noted that, with the exception of Dianne Feinstein, none of the senators in attendance expressed any outright opposition to my nomination.

For its part, the
New York Times
weighed in with a basically neutral assessment of how the hearing went, but it did comment (as did the
Post
) on the brevity of many of my answers. This was true, since I was often pressed for information about the CIA’s counterterrorist authorizations and actions that I simply couldn’t get into in front of the TV cameras. On those occasions, I dutifully—and repeatedly—pledged to the senators that I would fully respond in the closed session to immediately follow the open hearing. At the outset of the hearing, both Rockefeller and Bond had encouraged me to adopt this posture whenever I felt it necessary to do so. An eminently fair and understandable approach, I thought at the time.

But now, years later, after looking at the C-SPAN videotape of my hearing and reflecting on how the events of the day unfolded, it seems so painfully obvious that my fate was sealed before I ever sat down at the witness table.

I will not rehash here all of the back-and-forth that took place in the course of the nearly two-hour open session. To his credit, Kit Bond used his time to pose questions that allowed me to showcase my experience and perspective derived from being a lawyer in the national security arena for so many years. Otherwise, however, the hearing basically consisted of a tag team of half a dozen Democrats swinging away at the Bush administration’s post-9/11 counterterrorist policies, with me playing the role—sure enough—of piñata.

Some of the biggest “sound bites” in the hearing came when I was being pressed to answer questions that, because they involved classified information, I simply couldn’t meaningfully address or put into their proper context with the TV cameras staring at me. Today, the CIA’s post-9/11 detention and interrogation program is long since over and done with; the “secret prisons” have been emptied and closed, and the “torture memos”
were declassified and released almost verbatim to the public early in the Obama administration. Virtually all aspects of the program can now be discussed and debated in the open. But in June 2007, the program was ongoing, and all of it was still highly classified.

So it’s both painful and poignant to see myself now on videotape. I was heeding the admonition of Rockefeller and Bond, but it still looked bad. Sitting there helplessly, repeatedly confronted with pointed questions requiring me to parse instantly in my head how much I could say in public, I would hesitate, stammer, deflect, and retreat into pleas to the committee that I be allowed to respond in the closed session. I appeared to the entire world to be something that I am not—evasive, disingenuous, and unsure of myself.

On National Public Radio the next day, Mary Louise Kelly reported:

John Rizzo has more than three decades’ experience as a CIA lawyer and it seems he’s learned a thing or two over the years about how to dodge questions on activities the CIA would prefer to keep quiet. Yesterday’s hearing marked the senators’ first chance to question Rizzo publicly on matters such as extraordinary renditions and detainee interrogations, but Rizzo’s answers were not exactly expansive.

To illustrate, the Kelly piece on NPR included a snippet of an exchange I had with my new best friend, Carl Levin.

That ended the exchange, but Levin was not quite through with me yet. He later returned to the hearing, triumphantly brandishing a piece
of paper that he inserted into the hearing record, which he described as “a statement of the president in December 2005 that we do not render to countries that torture—a statement made in public—in contrast to Mr. Rizzo’s statement that he could not answer that question in public.”

Sitting there witnessing this little scene by Levin, I had no idea what he was talking about, and I didn’t get to see this “gotcha” document until days later. Turns out it was a December 6, 2005, White House press release of a transcript of an Oval Office meeting that day between President Bush and the head of the World Health Organization. And there it was in the transcript released by the White House press office. Mr. Bush, responding to a reporter’s question about whether he had “any plans to change the policy of renditioning [
sic
],” declared, “We do not render to countries that torture. That has been our policy, and that policy will be the same.”

The problem with that, and the problem I had been trying to address in Levin’s question, is that what the president said was false. It’s not that he deliberately lied—I am sure that he did not. Still, his answer wasn’t true. It wasn’t true when he gave it that day, it never became true, and it hadn’t been true for years, going back through administrations of both parties.

Before explaining why, I should provide a thumbnail, somewhat oversimplified description of what a “rendition” is. Essentially, it occurs when an individual is transported involuntarily from one country—where the individual is found—to another country where he (every CIA rendition I can remember involved a man) is facing criminal charges or is wanted for questioning in connection with an investigation. Sometimes he is taken back to his home country, and sometimes he is taken to a third country.

In any case, a rendition is conducted outside normal judicial processes such as extradition, where papers are openly filed by the country requesting the transfer. Historically, the United States—and other countries—resort to rendition only when a) the government of the country where the individual is located is unwilling or unable for political reasons to openly cooperate with, or even acknowledge, the transfer, or b) there is no applicable extradition treaty in place between the country where the guy is and the country that wants him. Thus, it is a practice that has been employed through the years in extraordinary circumstances. (By
the way,
extraordinary rendition
is another term that has become a seemingly permanent part of the post-9/11 lexicon, but I had never heard of it previously, and to me it just amounts to a pejorative redundancy.)