by Rizzo, John
It was then my turn to be taken aback, until I quickly realized that Porter was referring to the briefings the Agency gave him and the other congressional intelligence leaders in early 2003 about the existence of the tapes and our intent to destroy them at some point. “Uh, no, sir, they are still around,” I responded as matter-of-factly as I could. Porter seemed mildly disconcerted at hearing this. Understandably. The hot potato was now on his plate.
Several weeks later, Porter promoted Jose Rodriguez to the position of deputy CIA director for operations, Jim Pavitt’s former job. What’s more, Jose installed as his chief of staff an officer from the Counterterrorist Center who had previously run the interrogation program. Between them, they were the staunchest advocates inside the building for destroying the tapes.
They were now in a position to lobby the director directly. Yet I never had any indication they did so. Instead, they continued to come to me, persistently pressing their case. In June 2004, Jose had been upset to learn of the White House objections, and I could tell he was becoming more frustrated as the months went by.
As 2004 turned to 2005, it was increasingly apparent that the “right” time to destroy the tapes was nowhere in sight. The Moussaoui prosecution seemed to be dragging on forever; and in the meantime, another court case was presenting another potential complication. The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act lawsuit seeking disclosure of all Bush administration materials relating to terrorist detainee policies and practices. As in the Moussaoui case, the tapes had not yet been implicated in the court proceedings, but the possibility remained that they could be. Until both cases sorted themselves out, destroying the tapes was out of the question.
But even if the court cases somehow went away, I knew that there were powerful voices inside the administration weighing in against destruction. John Negroponte, the highly respected career diplomat appointed the first director of national intelligence (DNI) in late 2004, was briefed on the tapes by Director Goss in mid-2005. Shortly after the briefing, Negroponte sent word back to the Agency (and as DNI, he basically was the CIA’s boss) that he was strongly opposed to destruction under any circumstances. This was on top of the White House lawyers’ objections from the year before.
Nonetheless, Jose and his chief of staff kept coming to me. On the edges of meetings on other subjects, in the hallways, they would raise the subject almost every week. And then, when Al Gonzales left his White House counsel position in March 2005 to become attorney general, they began lobbying me to revisit the issue with the new White House counsel, Harriet Miers, in the hope that she might not have the same deep reservations about destruction that Gonzales and the other White House lawyers expressed to Scott Muller in June 2004. At first, I put off Jose and his chief of staff by saying that we shouldn’t be hitting Miers, who had no previous experience in CIA matters, with a thing like this so early in her tenure. I promised them that I would talk to her about it at some point; at the same time, I told them that I didn’t think she would like the idea of destruction any more than Gonzales did. In any case, I figured she ought to be apprised of the tapes and assumed (accurately, as it turned out) that her predecessor hadn’t told her anything about them.
In May 2005, I told Porter Goss about Jose’s relentless queries and said I thought it was time to bring Miers into the loop. By this time, I had attended two meetings with Porter where CTC representatives, as a part of their regular updates on the interrogation program, made a pitch about their strong desire to destroy the tapes because of the security risks to the officers depicted in them. Porter would express sympathy about their concerns, which he thought were genuine, but he never took the issue up with me. So when I raised the idea of briefing Miers, Porter’s response was pretty much what I expected. “Go ahead,” he replied laconically, “but just so you know, I am not comfortable about the tapes being destroyed on my watch.”
“Me, neither,” I replied.
I arranged to meet with Harriet Miers a week or so later in her White House office. David Addington, who had been present when Scott Muller told Gonzales about the tapes the year before, was in attendance again. Dan Levin, who had replaced John Bellinger as the legal counsel to the national security advisor, also sat in. I brought along John McPherson. Besides having reviewed the tapes at the end of 2002, John was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated. He gave a brief update on the cases, and I then told the group that our senior operational personnel were continuing to push hard for destruction of the tapes. I tried to convey fully and fairly the reasons why they felt so strongly about the issue, because I thought our people deserved that. Finally, I noted the strong opposition to destruction expressed by DNI Negroponte.
The reaction I got was predictable. Addington, a longtime friend who had worked for me at the CIA years earlier, vigorously asserted (he was not a man to mince words) that he had told Scott Muller a year before that destroying the tapes was a terrible idea and, by God, he still strongly thought so. Levin, a low-key but first-rate lawyer with prior White House and Justice Department experience, said little if anything; he was entirely new to the issue and the expression on his face was somewhere between incredulous and appalled. Harriet Miers was typically calm and meticulous, taking notes and asking a few follow-up questions. Still, she echoed Addington’s sentiments, albeit a good deal more quietly. She stopped short of saying that the tapes should never be destroyed, but the message from the White House remained clear: Do not do anything to the tapes before coming back here first.
I reported back to Porter as soon as I returned to Langley. He was neither surprised nor upset by the White House’s reaction. I then told Jose and his chief of staff (I can’t recall if I talked to them separately or together). They were crestfallen, because they were now on notice that the DNI, two successive White House counsels, and the vice president’s top lawyer had weighed in strongly against destroying the tapes. To top it off, I confided to them that Porter Goss seemed distinctly unenthusiastic about the idea, too. I offered Jose the following advice: Cool it for a while because the powers that be are simply not on board.
My advice seemed to have an effect. Jose never again approached me on the subject.
I don’t remember hearing anything more about the tapes for months afterward. But then, around the beginning of November 2005, the top two lawyers from my office responsible for covert operations told me that Jose and his senior staff had come to them wanting to revisit the issue. I am still not entirely certain what, other than the passage of time, prompted his renewed effort. The two lawyers did tell me that the chief of our overseas office, who had been safeguarding the tapes for years, was preparing to retire shortly and was pressing headquarters for final resolution before he left.
It had been six months since my meeting with Harriet Miers. I had no reason to believe she and the others who had strongly opposed destroying the tapes had moderated their views in the interim. But I still clung to the conviction that the advocates for destruction were sincere in their belief and deserved a hearing. In retrospect, I was being naïve. In the years since, I have often wondered whether I should have gone to Jose at that point and told him, in no uncertain terms, “Forget it, Jose. No one is ever going to agree to destruction.” I came to conclude that telling him that wouldn’t have made any difference.
With my agreement, my two lawyers began to work with Jose and his staff to draft language that would be included in a classified cable that would come from the chief of our overseas office, formally requesting permission to destroy the tapes. This would serve to officially “tee up” the issue for headquarters. Once the request was in hand, we lawyers tentatively agreed that I would go back to the director and propose that I revisit the issue with the White House lawyers. At about the same time, DNI Negroponte would be alerted and consulted about the renewed request. Then, in the extremely unlikely event that all of these officials withdrew
their previous strongly expressed objections, we would “scrub” all of the ongoing and pending court cases, congressional investigations, and so on, to ensure that destruction could not conceivably impact any of them. Finally, if all of these hurdles were cleared, the Agency would return to the leadership of the intelligence committees to inform them of the Agency’s intention to go ahead and destroy the tapes.
That was the game plan. In truth, I never thought that destruction was a realistic possibility. There were too many people adamantly opposed to the idea. Too many potential risks and complications. And it had now been over four years since the 9/11 attacks, and questions and concerns were beginning to surface in the media and Congress about the CIA’s still top-secret detention and interrogation program. The tapes were not going to be destroyed, I confidently concluded, not soon and probably not ever.
A few days later I received an e-mail from one of the two lawyers working with Jose’s people on the language that would be included in the cable “teeing up” the request for approval to destroy the tapes. I had thought they were still at this first step of the process. But what I got in the e-mail was a cable, forwarded without comment, that headquarters had just received from the field installation holding the tapes. The cable was terse but its message was unmistakable: Pursuant to headquarters authorization, the tapes had just been destroyed.
Within seconds of reading it, I e-mailed my own one-word comment back to him: “WHAT?!?!”
In those first dizzying moments, I wasn’t sure from whom to demand an explanation first. Jose Rodriguez or my own lawyers? Since Jose’s office was right down the hall and my lawyers were in an adjacent building on the CIA’s Langley Campus, I opted for Jose. As I raced out of my office I told my assistant to get the two lawyers up to my office. Now.
I knew Jose was around, but I couldn’t find him in his office. I ran into his deputy and blurted out what I had just learned. He seemed to know all about it. “I understand your lawyers chopped on it,” he replied calmly, meaning they were aware of and approved the destruction order. He only seemed surprised that I was surprised.
Now my head was spinning.
I ran back to my office, where my lawyers were waiting, holding a copy of the cable from headquarters that authorized the destruction a day or two earlier. Each was normally unflappable in demeanor, but on this occasion they looked shaken. Did they see this thing before it went out? I asked as evenly as I could. Absolutely not, they both assured me. In fact, they said, there was language in it that bore no resemblance to what they had been working on with Jose’s staff. I had worked with these two guys for two decades, and I trusted their word completely. What sealed it for me, though, was the “coordination” line at the bottom of the cable, which appears on all outgoing CIA operational cables in order to record who in headquarters has seen and agreed to the contents. In my career, my name was probably on thousands of such cables; the whole point is to document that a CIA lawyer has concurred in the message. It was an axiom passed down through three generations of CIA operatives: To cover your ass, get a lawyer’s name on your cable.
No names of CIA lawyers were on the coordination line of the cable Jose signed authorizing the tapes’ destruction. Case closed. My guys never saw it before it went out.
I began grilling my two lawyers about their conversations with Jose and his people in the hours before the cable was sent. Did he tell either lawyer what he was about to do? No, they responded. So what did he say to them? Well, they said, they remember him asking two questions: If there were any “legal impediments” to destroying the tapes, and if he had the “legal” authority to order destruction. They told him they were not aware of any legal impediments, meaning there were no court cases or pending investigations that required preservation of the tapes. They also said they had told Jose he had the legal authority to destroy them.
Both of their answers were technically accurate, as best I could tell. But that was beside the point, and Jose had to have known it. He had been on notice by me for three years that the fate of the tapes was not his call. It had nothing to do with his “legal authority.” He had chosen to ignore and defy the White House, the director of national intelligence, and the director of the CIA. And, of course, me.
In my thirty-four-year career at CIA, I never felt as upset and betrayed as I did that morning.
Somewhere in the maelstrom of running between offices, trying to piece together what had happened, I barged into the director’s office—about thirty yards down the hall and around the corner from mine—to tell him what I had learned. At the time, I thought I was the one who broke the news of the destruction to him, but in reviewing the internal Agency e-mails later, it appears that either Porter’s chief of staff, Pat Murray, or someone on Jose’s staff had told Porter earlier that morning. In any event, when I saw him he seemed as nonplussed about the developments as I was. I had gotten to know Porter well in the year since he arrived at the CIA, and despite his background as a politician, I had come to judge him as utterly without artifice. In the years since, there has been occasional speculation that Porter had to have known in advance what Jose was up to. I didn’t believe that then, and I don’t believe that now.
“What’s done is done,” I told him, doing my best to regain composure by grasping at a cliché. We agreed that we needed to inform the outside “stakeholders,” and we divided up this exceedingly unpleasant duty. Goss would tell DNI Negroponte, and I would tell Harriet Miers. As for the leadership of the intelligence committees, Porter had some definite ideas. He would inform them—Pat Roberts and Jay Rockefeller on the Senate side, Pete Hoekstra and Jane Harman from the House—in one of his regular, off-the-record meetings with them. But not with any of their staffers present. Just a year removed from being a member of Congress himself, he told me he didn’t trust the staffers not to leak the information. He would tell the members when he could get them alone.
There was one final loose end, which was what to do about Jose. “I’ll deal with him separately,” Porter said. Which was fine with me. I was too pissed off and hurt at that point to talk to him. Besides, I was not Jose’s boss. Goss was. It was his responsibility to deal with his act of gross insubordination.
I called Harriet Miers a short time later. I don’t remember the details of that talk, which is odd because I like to think I have a pretty good memory and would vividly recall something like that. I later saw a contemporaneous e-mail from another senior CIA official whom I apparently told about the call. He said I described Harriet as “livid.” Sounds about right to me.
Because Jose’s office was yards away from mine in the Agency’s seventh-floor executive wing, in the days and weeks that followed I inevitably ran into him in the halls or at meetings that we both attended. It was awkward at first, but he was still in place and I still had to work with him. Besides, in spite of everything, I still liked and respected the guy. Eventually, he briefly broached the subject of the destruction with me. “It was my decision, and I take responsibility for it,” he simply said. I never asked him why he had gone around me to order the destruction. I am convinced he did it because he realized, after three years of relentless pleas, that he was never going to get the go-ahead to destroy the tapes. Not from me, certainly. Maybe, in his own way, he was trying to protect me. I’d like to think that, at least.
It would be two years before the tapes’ destruction episode would reenter my life. With a vengeance.
Those next two years were a time of tumult for the Agency, and for me. Details about the detention and interrogation program, still shrouded in the highest secrecy and officially known to only a relative handful of officials in the Bush administration and the Hill, nonetheless kept leaking, drip by drip, into the media. Secret prisons and waterboarding were becoming national buzzwords, and the CIA found itself enmeshed in an increasingly toxic political controversy. The White House abruptly removed Porter Goss as CIA director in the summer of 2006, with General Mike Hayden of the air force named as his repl
acement.
Meanwhile, in March 2006, President Bush formally nominated me for CIA general counsel, a position I had been holding on an “acting” basis since Scott Muller’s unexpected departure almost two years earlier. Sent to Congress, my nomination languished for months and then blossomed into a full-blown piece of political theater. My June 2007 Senate confirmation hearing, televised on C-SPAN, turned into a free-for-all over the detention and interrogation program, with me playing the role of public punching bag for half a dozen Democrats. In late September, recognizing that confirmation was hopeless (the Democrats having regained control of the Senate in the ’06 midterm elections), I asked the White House to withdraw my nomination. I reverted to my role as acting general counsel, heading the office again in everything but title. The Democrats, presumably satisfied they had publicly exacted their pound of flesh with the maximum number of sound bites, left me alone to continue as the CIA’s chief legal officer.
At the beginning of December 2007, a former colleague, Jennifer Millerwise, called me about a phone call she had just fielded from Mark Mazzetti, a national security correspondent for the New York Times. Shortly after Porter Goss had become CIA director in 2004, he had brought in Jennifer to be the Agency’s director of public affairs. We became friends and stayed in touch after she left the CIA following Porter’s departure in the summer of 2006.
Now she told me Mazzetti had cryptically said he was working on a story about the “CIA destroying some interrogation videotapes depicting waterboarding.” He said that the destruction apparently occurred during Porter’s tenure, and Mazzetti asked her to convey this information to him to see if he had any reaction or comment. Mazzetti was very low-key about it, but Jennifer was puzzled and alarmed by the call. Puzzled because she had never been brought into the tapes debate while she was at the CIA, so she had no idea what Mazzetti was talking about. Alarmed because a reporter from the most influential newspaper in the country was tossing around the words CIA, videotapes, waterboarding, and destruction. She didn’t need to know much more to recognize that a story like that in the Times would be dynamite. So she decided to call me to let me know.
