Company Man: Thirty Years of Controversy and Crisis in the CIA

by Rizzo, John

  But I also think the ICRC leadership was pleasantly shocked that we even agreed to meet with them at all (as was the Bush-Cheney White House, except their shock couldn’t be described as “pleasant”) and the ICRC was eager to maintain a dialogue, even if no concrete results were forthcoming. Mike Hayden deserves the primary credit for keeping the dialogue going in the face of skepticism even from inside our building—the CTC in particular seemed baffled as to why we were talking to anyone from the ICRC—but I was a major proponent as well for establishing a line of communication between the two organizations. From the start, I served as the go-between, and the more I interacted with the ICRC representatives, the more I was impressed by their professionalism, their discretion, and, above all, their nonjudgmental posture toward the CIA and the actions it felt were necessary to take in the post-9/11 world. Not to mention their nonjudgmental posture toward me and my role in those actions, which by 2007 were all too well documented in the media.

  Eventually, a remarkable relationship of respect and trust developed between two organizations with wildly disparate missions. Today, long after the demise of CIA prisons and the EIT program, I understand that the relationship between the CIA and the ICRC may be continuing. If that’s so, I am happy and more than a little proud of the role I played in its creation.

  On Election Day 2008, I voted for Barack Obama. For the first time in three decades, I was casting a vote in a presidential election that I was confident could have no conceivable impact on my professional life at the Agency. I fully assumed that no matter who won, I would be told to step aside from my job shortly after Inauguration Day on January 20, 2009. Which was fine with me. I recognized and accepted that, politically speaking, I was radioactive because of all I had been involved in, and become notorious for, in the years after 9/11. Besides, after more than three decades at the Agency, I was ready to retire, with no complaint or regret.

  For one last time in my CIA career, I would be proven wrong again.

  CHAPTER 17

  The Arrival of Obama, and a Long Goodbye (2009)

  Soon after his 2008 election, Barack Obama named Greg Craig to head up his transition team on national security issues. Greg was a high-profile D.C. lawyer with strong ties to the Democratic foreign-policy establishment, and we had been friendly acquaintances for quite some time. With his energetic charm, ruddy complexion, and thick thatch of hair, he acted and looked like a fifth Kennedy brother (and, in fact, was close to the Kennedy family). Shortly after Obama tapped him, Greg asked me to serve as his point man with the Agency in setting up transition briefings for the president-elect and his incoming national security team.

  Obama, like all Democratic and Republican presidential nominees before him, had been offered the opportunity to receive intelligence briefings from CIA representatives during the fall campaign. He quickly accepted the offer (while John McCain, notably, did not). Intelligence briefings of nominees are limited to “analytical issues” such as the current situation in the Middle East, Russia, and so on. Information about CIA covert operations (“the sexy stuff,” as the incoming president-elect George W. Bush put it pithily at the time) is reserved for the victorious candidate after the election but before the inauguration. So that’s what Obama was now going to get for the first time.

  Greg Craig and I worked out the timing for the briefings. As I recall, there were two of them, one in Chicago and one in Washington. I did not attend those; Mike Hayden and Director of National Intelligence Mike McConnell headed a very small delegation from the intelligence side. Greg and Mike Hayden told me after both Obama briefings that, substantively, they had gone well. Obama, among other things, got his first detailed look into the EIT program. I was told that he was deeply attentive, but entirely noncommittal.

  The next step was for Greg and me to set up a series of longer covert-action briefings at CIA Headquarters for a slightly larger circle of Obama advisors. Ultimately, there were two sessions, held in December and early January, that each lasted for several hours. As it turned out, I knew a few of the Obama representatives who showed up: Besides Greg, there was my friend and ex-Agency general counsel Jeff Smith, my friend and former longtime CIA colleague John Brennan, and (for the second session) the former Oklahoma senator and Intelligence Committee chairman David Boren. The meetings took place in the CIA director’s conference room, and Mike Hayden kicked off both sessions from our side of the table, with me sitting next to him. The first topic right out of the chute was, not surprisingly, the EIT program. Mike Hayden told Greg at the outset that he would be happy to skip the subject if the new administration had already decided to end the program. Greg assured him the administration had an open mind on the subject. Notwithstanding my respect and fondness for Greg, I didn’t believe that for a second. The EIT briefing proceeded, with Hayden taking the lead and the CTC chief and me occasionally chiming in. Greg and his colleagues took it all in, staring impassively at us.

  I did notice that they perked up considerably when the talk turned to lethal CIA operations against Al Qaeda. They asked lots of questions, but what struck me most was their enthusiasm. The new president, they assured us, was going to pursue a vigorous, aggressive fight against Al Qaeda. For the first time, the thought occurred to me: These guys are trying to send us a message that Obama is no academic dilettante. That he is going to be a tough, action-oriented guy. That he is going to take no prisoners, figuratively or literally.

  In retrospect, Mike Hayden never had a realistic chance of being kept on as CIA director, despite his wishes and hopes to the contrary. It all came down to his role in the EIT program and, to a lesser extent, his previous role, as NSA director, of architect of the Bush administration’s controversial terrorist electronic surveillance program launched in the early days after 9/11. In many ways, his fate was as unfair as it was predictable. Here was a lifelong military officer with an impeccable record of service and integrity. Mike didn’t help create the EIT program (as I did, for instance), he inherited it at the height of its contentiousness and proceeded to coolly analyze it, scale it back to reflect the prevailing political realities, and bring Congress more fully into the loop. But by saving the program, he inevitably came to “own” it. During the campaign, Obama was withering in his criticism of the EIT program, calling it “torture.” There was no way he was going to ask Mike Hayden to stay on as his CIA director. I thought it was uncharacteristically naïve of Mike to apparently hope otherwise.

  That said, Mike Hayden had spent his entire adult life serving his country, and the way the incoming Obama administration treated him, whether out of thoughtlessness or callousness, was shabby. At first, they let this proud man twist in the wind, as the transition team floated the names of possible replacements to Capitol Hill and to the media. Then Obama himself reached out to Steve Kappes, Mike’s deputy and a non-presidential appointee, to ask him to remain in his post, while Mike waited and waited, hearing nothing one way or the other. Mike finally had to force the issue with the incoming White House staff to officially learn his fate via a brief phone call from the new president.

  Finally, when Obama’s surprise pick for the new CIA director, Leon Panetta, was preparing for his confirmation hearing, Mike made only one request. On behalf of the career Agency workforce, he implored his successor not to use the word torture to describe the EIT program during the hearing. Criticize the program, say it is being scrapped, but avoid that word, Mike pleaded. He told Panetta it would be a gratuitous, crushing insult to the hundreds of Agency employees who had worked on the program for years in good faith. Once you’re on the job, he counseled Panetta, look at the program in depth, how it was actually conducted, the safeguards that were in place, the results it yielded, and then make a judgment. But not now, not yet.

  Mike Hayden would be ignored one last time. One of the first things out of Panetta’s mouth at his Senate confirmation hearing, in front of the TV cameras, was about the EIT program. It was torture, Panetta unhesitatingly said. Back at Langley, I w
as one of the probably hundreds of CIA employees who were watching. Just like that, he had publicly branded us as war criminals.

  I won’t last five minutes when this guy gets here, I thought.

  I had never met Leon Panetta, had never been in the same room with him during his long career in high-level government jobs, beginning with his years in Congress in the ’70s and ’80s up through his service as Bill Clinton’s White House chief of staff in the mid-’90s. As best I could tell, he had never exhibited any interest, much less involvement, in intelligence matters in all that time. If he had been one of the ten new CIA directors I had previously served under, I suppose his apparent lack of credentials and enthusiasm for the job would have concerned me more. But I knew I was a goner, so the fact was, it didn’t matter all that much to me. For the sake of my colleagues, I hoped he would turn out to be okay, but that was about it.

  Meanwhile, I was doing my best to pass the word that I wasn’t going to be a bother. Even before Panetta came on the scene, I had told Greg Craig, now counsel to the new president, that I was ready to step aside and retire, without complaint or recrimination, at any time. I said the same thing to Jeremy Bash, Panetta’s incoming chief of staff, when he inquired about my plans. I knew Jeremy from his previous job as counsel to the House Intelligence Committee, and I trusted him to convey that message to his boss and to pass back Panetta’s answer. I didn’t want to force Panetta to personally tell me to step aside; as we were strangers to each other, it would have been awkward for both of us. Jeremy agreed and asked me to stand by.

  Panetta was confirmed by the Senate in mid-February 2009. A few days after he arrived at Langley, my special assistant, Donna Fischel, got a message from Panetta’s staff that he was coming down the hall to see me. Before I had a chance to process what this unexpected visit meant, he came bounding into my office, accompanied by Jeremy. He plopped down on the couch, asked for coffee, and then just began to schmooze. It was our first conversation ever, but after about two minutes the realization hit me that Leon Panetta was the most instantly likable CIA director I had ever met. It had nothing to do with what he was saying, which was so unremarkable that I can’t remember a single thing he told me, other than a chuckling, offhand remark that I didn’t “look like a Rizzo,” meaning that my fair skin and blue eyes didn’t reflect my Italian name. For his part, he looked every bit as Italian as his name, but it was more the way he came across—sunny, earthy, without a shred of formality or phoniness—that reminded me of my late father and all of his brothers who had been the products, like Panetta, of a first-generation Italian American family.

  After about fifteen minutes, Panetta popped up from the couch and said, “Well, I gotta go. See you around.” And then, just like that, he was gone. I sat alone for a minute, trying to figure out what had just happened and what it meant. What I decided was that it meant I would be around for a while longer than I’d expected.

  I saw Panetta daily for one reason or another over the next couple of weeks, and I thought we were hitting it off quite well. He loved to laugh and joke, as did I, and we were forming an easy, bantering relationship. A lot of it probably had to do with the fact that we both understood the situation—that the White House was looking for my replacement (Panetta himself didn’t have anyone in mind) but that in the meantime he and I could comfortably work together.

  Thus, everything seemed fine between the new CIA director and me. That is, until early March, when I nearly blew the whole thing.

  For several years, a federal court in Manhattan had been wrestling with a lawsuit under the Freedom of Information Act filed by the American Civil Liberties Union (ACLU) against the Bush administration, seeking the declassification of massive amounts of documents regarding the administration’s policies and practices with respect to detainees captured during the post-9/11 era. Among many other things, the ACLU was seeking the declassification of all Justice Department legal opinions on the CIA’s EIT program. In other words, the ACLU was pressing for the public release of all the OLC’s “torture memos.” On behalf of the government, career Justice Department litigators in New York and Washington were fighting against the release of the OLC memos on the grounds that their exposure would jeopardize intelligence sources and methods. The presiding judge, Alvin Hellerstein, had been handling the gargantuan, long-running case with a dogged but evenhanded toughness, ruling for the government in some areas, for the ACLU in others.

  When the Obama administration took office, the career DOJ lawyers on the case were relatively optimistic that the judge would ultimately rule that the substantive portions of the OLC memos—those identifying and describing the EITs—should remain classified. The new Obama legal brain trust, however, quickly concluded otherwise.

  I found this out via a phone call from Greg Craig in early March. “We’ve been looking at the ACLU case,” Greg told me in his usual friendly conversational tone, “and the view here is that the government is going to lose on the issue of protecting the OLC memos. Therefore, I want to let you know that we are going to inform the judge that the government is going to declassify the memos in their entirety.”

  I was flabbergasted. I had never heard the career DOJ lawyers handling the case express such a view. I thought—everyone who had been following the case for years thought—that there was a compelling, winning argument for keeping the details of the EIT program secret. Not because they were illegal or shameful, which none of us ever believed, and which Judge Hellerstein would have seen through and never countenanced anyway.

  By March 2009, the EIT program was dead and buried—Obama had accomplished that with considerable fanfare through an executive order he issued three days after taking office. In the same order, Obama explicitly rescinded all the previous OLC memos on the EIT program, a move that was startling and troubling to me, but something that in retrospect should not have been entirely unexpected. But all of that was beside the point. It had always been a fundamental, inviolate tenet in the intelligence business that just because a covert program was over didn’t mean that everything about it had to be made public. To do so would threaten to expose the details and the means of how the program was carried out, where it took place, and, most critically, the foreign governments or individuals who cooperated in the program on the condition, and on the CIA’s promise, that key details of the program would remain secret. Otherwise, the covenant of trust that must exist between an intelligence organization and its foreign cooperating sources would be breached, perhaps irreparably. Those critical, if inchoate, considerations existed in spades when it came to the EIT program, even if it was defunct (at least until some future president, responding to another catastrophic attack, might decide to try to replicate it in some form).

  Greg Craig is an honorable, forthright guy. He quickly made it clear to me that the decision to declassify the OLC memos was based on policy, not solely legal, considerations. He also made it clear that he, along with the new attorney general, Eric Holder, supported the decision. Still trying to wrap my head around it all, I asked him, “So when will it be announced that they are going to be declassified?” “In three days,” Greg replied. Holy shit, I thought.

  I didn’t know what to do, other than to tell somebody in our building. Panetta had just departed for his first overseas trip, and Greg hadn’t said anything to indicate that Panetta knew about the decision. I rushed down to Steve Kappes’s office to tell him the news. Steve was just as taken aback as I had been, but in his typically calm and Marine-bred fashion he crisply said he would try to reach Panetta to let him know. And then we discussed who else in the CIA family needed to be told right away. We decided to hold off for the time being on telling the troops who had worked so long, so selflessly, and so thanklessly on the program. It would be devastating news to them, we knew, but we needed more time—at least a day or two—to figure out a way to do it, to try to assuage the shock. We decided we owed a quiet heads-up to the three previous CIA directors—George Tenet, Porter Goss, and Mike Hayde
n—who had presided over the creation and development of the EIT program. It was a matter of simple respect and professional courtesy. We didn’t think these dedicated, distinguished men ought to learn about it only by seeing the news on TV or in the newspapers. I volunteered to call each of them individually; they had all played such a central role in my life and career post-9/11, and I wanted them to hear it from me directly.

  I went back to my office and placed the calls. All the former directors were incredulous at the news. It was the reaction I expected, and I explained as much about the reasoning behind the decision as I could. I didn’t ask, and didn’t expect, them to do anything about it. That was a major miscalculation on my part.

  Tenet and Hayden separately began working the phones furiously, reaching out to people they knew in the Obama White House, apparently protesting against the decision in vehement terms. The word quickly got back to Greg Craig, and I soon got another call from him. This time his usually friendly voice had an edge to it. “I intended what I told you to be kept in confidence. I didn’t expect you to unleash a lobbying campaign.” I profusely apologized, saying I had nothing to do with encouraging George’s or Mike’s actions, all the while silently kicking myself for not anticipating what they had done. Greg laughed and seemed mollified. Sort of.

  Leon Panetta then called in from his plane overseas somewhere. The White House had gotten to him before Kappes could. Evidently the first he heard about the White House decision to declassify the OLC memos was when someone in the White House told him, minutes before, that I had recruited his predecessors to push back against the decision. The tone in his voice was not that of the cheerful, easygoing man I was just beginning to know. Once again, I stammered out an apology and tried to explain the sudden, unexpected chain of events that had started hours before. Panetta didn’t sound nearly as mollified as Craig. “In the future,” he curtly told me over our lousy phone connection, “when you learn about something like this from the White House, I expect you to first let your current boss know before telling your former bosses.” With that, he hung up.