Company Man: Thirty Years of Controversy and Crisis in the CIA (49 page)

What I didn’t expect was hostility from Kit Bond, the Republican vice chairman of the Intelligence Committee. Not because of the EIT program—Bond supported that wholeheartedly. Bond’s big problem with
the Agency was his conviction that senior management never held its personnel “accountable” for lapses or malfeasance in their conduct of intelligence activities that went awry. How did that apply to me? One of my most highly experienced and conscientious lawyers was involved in the early stages of a rendition of a terrorist suspect that took place a couple of years after 9/11. In early 2007, after a four-year investigation, the CIA inspector general had issued a report that strongly criticized the performance of a number of CIA officers, including the lawyer. In a footnote, the IG helpfully noted that I promoted the lawyer a year or two after the rendition, years before the completion of the IG report concluding that the lawyer was at fault. The lawyer was disciplined as a result of the report, but to Bond that was beside the point. He was furious that I had promoted the lawyer years before, back when anyone’s culpability, including the lawyer’s, was not even close to being determined. Bond was implacable. He passed the word that he wasn’t going to support me, and most of his Republican colleagues on the committee—with my lack of Republican credentials glaringly apparent—likely were going to shrug indifferently and follow his lead.

So there it was, if I had been willing to see it. I was not just going to lose a committee vote, when or if that took place. I was going to be crushed, humiliated.

I was dead, but I wasn’t psychologically ready to accept my fate. Not even when Ron Wyden announced in August that he was putting an indefinite “hold” on my nomination, something I first learned by reading an interview Wyden gave to the
New Yorker
. He claimed to be acting on behalf of “hardworking, well-intentioned CIA officers.” As if I hadn’t been, for the previous three decades.

My stubborn, foolish myopia continued into September 2007. Mike Hayden, displaying loyalty far beyond the call of duty, worked the phones with individual members of the Intelligence Committee. He got nowhere. The committee, evidently concluding correctly that I wasn’t responding to a subtle nudge, decided to publicly apply a two-by-four to my head via a piece that appeared in the September 13
Washington Post
. The headline was nothing if not direct: “Senate Intelligence Panel Seeks CIA Nominee’s Withdrawal.” Sourced to “[t]wo U.S. officials familiar with the committee’s decision,” it cited a “private” call the committee had made to Mike Hayden the day before. As I say, not exactly subtle.

Up to that point, the White House had been keeping a studied distance as my nomination was circling the drain. But the
Post
piece did serve to get the attention of one White House official: the president. Mike Hayden returned from an Oval Office meeting with Bush on the morning the piece appeared. He came to my office to deliver a message from the commander in chief: You’re my nominee. Hang in there. To be sure, it was an indirect message, and one I doubt the people around him enthusiastically endorsed. But it was enough to sustain me. At least for a couple of weeks.

The committee scheduled the vote on my nomination for Tuesday, September 25. Maybe as a compassionate warning, or maybe as a blunt threat, as the day approached, the committee staffers on both the Democrat and Republican sides were now sending the same insistent message to Langley: If this nomination goes to a vote, Rizzo will get three or four votes, tops. It will be a wipeout, not just a rejection. He can’t stay in his job if that happens. Is that how he wants his career to end?

And still—still—I resisted. Mike Hayden and the White House were not telling me to throw in the towel. It was my decision, I was told. On Friday, September 21, I convened my entire staff—about 180 people—and told them I was going to insist on a vote. To my embarrassment, I choked up a bit.

I didn’t sleep much that weekend. I kept turning things over and over in my mind. I talked with my wife, Sharon. She knew and loved me enough to know to give me some space; she said she would support whatever I decided. I talked to my son, James, now a grown man of twenty-nine. His life had spanned virtually my entire CIA career. Although James had previously confided to me that he thought my situation was hopeless, he now told me basically the same thing that Sharon had.

When I returned to work on Monday, one day before the committee vote, everyone largely left me alone to my thoughts. Mike Hayden was out of the country, so his deputy, Steve Kappes, was holding down the fort. The Bush White House had persuaded him to return to the CIA as Mike Hayden’s deputy, three years after his abrupt retirement following a clash with Porter Goss and his staff. Steve was a universally admired career CIA operative, and he and I had been good friends for years. A ramrod-straight former marine, he truly lived by the credo of duty, honor, country. I checked in with him in the morning to see if he had
heard anything new about my nomination. He said he hadn’t, except for the fact that John Warner had told someone in the White House over the weekend that my situation was “very difficult.”

Ah yes, I thought, John Warner. In my self-absorbed state over the previous couple of weeks, I had forgotten that Warner had a stake in my fate as well. He had been my only advocate on the Senate Intelligence Committee, generously offering to introduce me at my confirmation hearing and continuing to offer his stalwart support even as my prospects were plummeting. If my confirmation was going to be rejected by his colleagues by a lopsided vote, that was bound to be a source of personal embarrassment to him. He would never tell me that, of course; he was far too gentlemanly to lay that sort of guilt trip on me. But the thought haunted me for the rest of the day. It contributed to my dawning, if overdue, recognition of reality: My nomination was doomed. Dragging it out to the inevitable end would only hurt me, the Agency, and people who were too loyal and kind to shake me by the lapels and tell me otherwise. People such as Mike Hayden and John Warner.

I should have pulled the plug that Monday, on the eve of the committee vote. But, against all logic and out of pure obstinacy, I decided to sleep on the whole thing one last night.

The next morning, I was driving to work with Sharon at the moment I came to my final, final decision. I hadn’t said anything to her the night before about the nomination, and she had steered clear of the subject. We were close to headquarters when, out of the blue, she softly said: “For what it’s worth, I think you should withdraw now, before it’s too late. Why put yourself through the pain of a vote when you know how it’s going to come out?” That settled it for me. One of the things that had been nagging at me all along, that was holding me back, was how I was going to break the news to my family that, in essence, I was giving up. With a tremendous sense of relief, I told her that that was the same conclusion I had come to.

Once I got to the office, I didn’t have a moment to spare. The committee was scheduled to vote around lunchtime. The first person I talked to was Melody Rosenberry, my unflappable, loyal, and discreet chief of staff. I told her to draft a letter from me to the president asking him to withdraw the nomination. Something simple and dignified, I told her, with no recriminations directed against anyone. I then walked down the hall to tell Steve Kappes so that he could pass the word to Mike Hayden overseas. Steve said
he understood and was truly sorry, and I believed him. I knew he wouldn’t try to talk me out of it, and I knew that Mike Hayden wouldn’t either. Steve called National Security Advisor Steve Hadley with the news, and Hadley, businesslike as always, simply said, “Okay. You and Mike manage it.” Steve then passed the word to our head of congressional affairs so that he could give the committee staff a heads up. “The White House has two hours to formally notify the chairman,” Jay Rockefeller’s staffer tersely responded when he got the message. “Otherwise, there will be a vote.”

By the time I got back to the office, Melody had a draft withdrawal letter waiting for me. It was perfect in both language and tone. I signed it without changing a word, and off it went to the White House. I didn’t want to get ahead of the White House, but the clock was ticking and it was essential to me that my staff learn about my decision from me, before it leaked out from somewhere else. I sat down at my computer and tapped out a long e-mail to the entire office. Under the subject heading “My Decision,” I laid all my reasons out, and I tried to be as candid and complete as I could about the realities of my situation. I must say, it was one hell of an e-mail message.

As the noon deadline approached, I decided I needed to reach out to one more person. I placed a call to John Warner’s office, and he called back almost immediately. For the first time that day, my emotions got the better of me. I thanked him profusely for everything he had done for me, and then I asked for one last favor. “I would like to stay on here at the Agency,” I choked out. “I hope the committee won’t try to prevent that.” Warner gently replied, “Don’t you worry. That won’t happen, and if anyone down here tries it, you just let me know.”

The formal letter from the White House withdrawing the nomination arrived at the committee just about the time it was going into a meeting to cast its vote. The committee then took the nomination off its agenda. It was over.

The news hit the papers the next morning. I thought the second paragraph of Mark Mazzetti’s piece in the
New York Times
summed up the saga pretty well: “The nomination of the 32-year Agency veteran to become general counsel is the most prominent casualty of the partisan fight over the spy agency’s program of detaining and questioning top terrorism suspects since the September 11 attacks.”

I returned to my job the next day. Same office, same duties, same title (acting general counsel) as I’d had for the previous three years. As time went on, it became clear that John Warner was right: The Senate Intelligence Committee was not only done pursuing me, it seemed to have lost all interest in me one way or another. Nobody appeared to care that I was still the chief CIA legal officer in everything but formal title. Not even when my name and face unexpectedly burst back into the news a few months later, when the
New York Times
broke the explosive story of the CIA’s 2005 destruction of videotapes depicting the waterboarding of terrorists held in the Agency’s secret prisons. In all the ensuing Sturm und Drang, there was not a peep from anyone on the committee about me still holding down the top legal job at the Agency. It was weird in a way, as if my entire confirmation debacle had never happened, as if it had all been just a bad dream. I guess the committee, having exacted its public pound of flesh, simply decided to move on.

Nothing much changed about my standing at the Agency and the White House, either. Mike Hayden assured me I would be his lawyer as long as he was CIA director, and that he wasn’t going anywhere. The White House also passed the word—I am certain because of David Addington’s influence—that the administration would not put forward another nominee for the position for the balance of its time in office (although given its lame-duck status and the public flogging I had gone through, I wonder if the administration could have found any sane lawyer willing to take the job).

By March 2008, my name had largely faded from public attention. The refined, slimmed-down EIT program had been under way for more than a year, with Congress having passed the Military Commissions Act of 2006, which, among other things, served to minimize the risks that CIA personnel carrying out the new program could face criminal prosecution in the future for their actions. In the meantime, the OLC produced a fresh series of long opinions—all addressed to me—confirming that the six EITs that comprised the new program were lawful. These were the memos that I had insisted the OLC prepare in the wake of the passage of the McCain Amendment and the Supreme Court’s
Hamdan
decision. The new program, in short, now appeared to be on solid legal footing.

Nonetheless, as 2008 wore on, it seemed apparent, at least to me, that a new sort of endgame was playing out, which was the demise of the
EIT program altogether. The two presidential nominees, Barack Obama and John McCain, were both on record as being strongly against any U.S. government policy to maintain a system of secret CIA prisons where detainees could be subject to aggressive interrogation of any sort. The program was still alive, but it had all seemed so anticlimactic ever since the Agency had transferred to Gitmo all the key figures in the 9/11 plot, on the eve of Bush’s East Room speech on September 6, 2006.

Looking back now, 2008 thus seems almost uneventful, at least in comparison with the stress, uncertainty, and turmoil I constantly had to cope with in the previous six post-9/11 years. I remained busy, of course, and life for a CIA lawyer is never mundane. I took considerable gratification, for instance, in serving as Mike Hayden’s point man in fostering an unprecedented relationship between the CIA and the International Committee of the Red Cross (ICRC). It was an odd-couple pairing, to say the least, that began in late 2006, with the State Department’s John Bellinger playing matchmaker. The ICRC approached us quietly, tentatively, to explore the possibility of establishing a dialogue about the location and fate of the Al Qaeda operatives that the Agency either was holding in its prisons or had captured and transferred to third countries. The truth was, there was no way we were going to provide that sort of sensitive national security information, and I don’t think the ICRC ever had any illusions that we would.