by Rizzo, John
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.
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 committe
e. 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.
LEVIN:
Have detainees been rendered by us—including the CIA—to countries that use torture?
ME
(hesitatingly): That’s an important question. I would—the only way I could give it a proper answer would be in the classified session.
LEVIN:
I’m not asking which countries, I’m just asking you whether we have ever rendered detainees to countries that use torture.
ME:
Well, again, if you don’t mind, Senator, it’s difficult to give a yes or no answer to that in open session. I would just greatly prefer to give it the attention it deserves in closed session.
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 whethe
r 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.)
