by Rizzo, John
Ouch. Staring at the phone, I wondered to myself if I should move up the timing for my departure once again. Like, to within days.
The ruckus I had inadvertently set off did cause the White House to put on hold its decision to declassify and release the OLC memos. After reaming me out, Panetta apparently contacted Rahm Emanuel, his former protégé in the Clinton White House who was now Obama’s chief of staff, and persuaded him not to take any action until Panetta could return home and be brought up to speed on what was going on. By the time he arrived back at Langley a few days later, Panetta’s understandable anger toward me seemed to have dissipated. When I saw him again, I apologized. Panetta responded by shrugging. “These things happen,” he said. “Just don’t let them happen again.” By then, Steve Kappes, ever the stand-up guy, had told Panetta that he and I had jointly made the decision to alert the former CIA directors about the White House decision. Panetta had tremendous respect for Steve, so I suspect that that more than anything else defused Panetta’s ire toward me.
In any event, I was coming to understand that Leon Panetta was a man inclined to look forward, rather than dwell on and stew about the past. What he wanted to know was exactly why public release of the OLC memos would be so harmful to the Agency’s morale and mission. I realized that I was not the right choice to make that case. For one thing, my name was prominently displayed at the top of all the potentially inflammatory OLC memos, so it could look like I had a personal, parochial motive to keep them under wraps. Moreover, I was only the Agency’s lawyer, after all, and it was the CIA’s operational cadre that had the most at stake, that had the most to lose in terms of foreign relationships damaged, of trust betrayed. Panetta needed to hear it from those guys, not just me.
Kappes, the quintessential symbol of the traditions and values of CIA operational personnel, became their chief advocate with Panetta. He brought in people from the working ranks of the CTC to meet with Panetta, to supplement and buttress the case he made. There were a number of such meetings that March. I sat in on most of them, and I kept watching Panetta as he listened attentively, connecting with these career spies on a personal level. Partly because he was a politician but mostly just because of the guy he was, it was clear that he could read and relate to working-level people. That came across to the people he was talking to as well. He didn’t bullshit them, and they didn’t bullshit him.
It took a week or so for him to make his decision. “Fuck it,” he told a few of us one day. “I am going to fight at the White House against release of the memos.” (He had a fondness and facility for dropping the “f-bomb” into everyday conversation to an extent unmatched in CIA directors I had known, with the possible exception of George Tenet.)
And fight he did, forcefully and insistently in several meetings on the subject held in the Situation Room during the next couple of weeks. I know because I accompanied him to a couple of them. He took the case personally to Obama as well, whom Panetta reported was agonizing over the decision. His top advisors were split—Panetta and Rahm Emanuel on one side, Greg Craig, Eric Holder, and the new DNI, Denny Blair, on the other. (Releasing the memos would be “a one-day story,” Denny confidently predicted at one of the meetings.) As for the potential effect on Agency morale, Denny casually assured Panetta, “Let me worry about that.” It was at that moment, I believe, that Panetta began to dislike Denny.
Around and around the debate went. I was surprised at the extent to which the new president was personally involved in the process. On the one hand, as someone so vested in the outcome, I was gratified by the obvious attention Obama was paying to the CIA’s sensibilities and equities. On the other hand, as just an ordinary citizen, I kept thinking that with all the problems he had on his plate, not least among them the crappy economy, maybe he shouldn’t be chewing up a lot of his time on an internecine squabble over a bunch of legal memos. I voiced that sentiment to Panetta sometime in that period, and he said he agreed: “Yup, [National Security Advisor] Jim Jones should break the logjam and just make the call, but Jones can’t, or won’t, do it.”
Ultimately, Panetta and the Agency did not prevail. In mid-April, word came from the White House that Obama had decided to publicly release the OLC memos. I had long-standing plans to start a short vacation to Scottsdale, Arizona, with my wife, and I was actually grateful to get out of town when the memos came out. I knew they would precipitate a classic Beltway shit storm, with my name plastered, one last time, all over the media. In doing so, I missed out on my first (and only) opportunity to meet the new president. Graciously, he had invited a few of us from the Agency to the White House so he could personally explain his decision. My deputy, James Archibald, attended in my place. It was just as well. I have no idea what I would have said to him.
Even though Panetta had lost the debate on the memos, he won something perhaps even more important and enduring: the gratitude and respect of the CIA workforce. By and large, the Agency remains a closed, silent place to the outside world, but inside the building and in the CIA’s secret offices around the world, news always travels fast and far. Before long, word of Panetta’s dogged, seemingly quixotic efforts to go to the mat with the White House spread throughout those cloistered environs. It was a fight, we all recognized, that he could have easily and logically avoided; after all, he had no connection whatsoever to the disbanded EIT program and was already on the record as having publicly decried it as “torture,” just like Obama had done. Yet he jumped into the fray, ferociously and to the end.
At the time, a few cynical outside pundits speculated that Panetta was only going through the motions, giving lip service to the CIA “old boy network.” That is bunk. I was there by his side at the time, and I never once doubted his motives or his sincerity. Neither did anyone in the CIA clandestine service, a population collectively endowed with a well-honed bullshit detector. From that point forward, Leon Panetta was not just a “made” man, so to speak, but the beloved capo in the eyes of the far-flung Agency family.
In the years since my retirement, I have been asked on occasion what attributes I think a CIA director has to have to be successful. There are three, I believe: 1) access to and clout with the president; 2) credibility and influence with Congress; and 3) respect and trust from the workforce. Most of the eleven directors I worked under had one of those attributes. A few had two. Leon Panetta, in my opinion, is the only one who had all three.
The formerly top-secret OLC memos hit the streets on April 16, 2009. There were four of them in all: the August 1, 2002, “Bybee II” memo listing and approving the original set of EITs, plus three memos authored in 2005 by Steve Bradbury, one of Bybee’s successors as head of the OLC. All of them, as I indicated earlier in this book, described the EITs in graphic and, yes, chilling detail, just as I had intended when I requested the OLC’s views all those years ago. And, as the addressee, my name was right there in bold print, for all the world to see, at the top of each of the memos. The media, of course, had a field day with them. For the next couple of weeks, they were excerpted, analyzed, and widely (if not unanimously) attacked in all the major newspapers and cable networks. In all of this eye-glazing marination of every word of the memos, the conspicuous presence of my name on all of them drew predictable attention.
On April 19, the Washington Post published an article headlined “Justice Department Memos’ Careful Legalese Obscured Harsh Reality.” It had a box with photos of Jay Bybee, John Yoo, Steve Bradbury, and me (“the legal minds behind the [EIT] program,” the caption read) and a summary of what each of us was doing now. I was the only one listed as still holding the same job—acting CIA general counsel—as the ones we had in 2002 and 2005, when the memos were prepared. On April 29, National Public Radio ran a piece titled “In Torture Memo Furor, Rizzo’s Name Is at the Top,” duly noting that I was “still in charge . . . of well over 100 CIA lawyers.” Even my old antagonist Senator Ron Wyden popped up again out of nowhere, telling Rachel Maddow on MSNBC on April 28 about how “bizarre
, even by Washington, D.C., standards” it was that I was still the top legal advisor at the Agency.
Just what I needed, in the waning weeks of my career. (Panetta’s pithy counsel was to ignore the shots: “Fuck ’em,” he told me.) By then, at least, I could see the light at the end of the tunnel. A very smart and seasoned Washington lawyer named Stephen Preston had been identified as my replacement, and his name was wending its way through the confirmation process. By June, my name once again had largely drifted out of the press. There was only one small, final insult to endure: I was told that during Preston’s courtesy call on Senator Dianne Feinstein, she told him she hoped my continuing presence wouldn’t “poison” his tenure. This from a woman who had never deigned to have a conversation with me during her seven years on the Intelligence Committee.
None of this should leave the impression that the last few months of my career were depressing. In fact, I felt a deep sense of satisfaction and relief. Preston, I knew, would do well in his stewardship of the Office of General Counsel. Panetta was a continuing joy to be around; I like to think that we became friends in the relatively short time I worked for him. I was proud of the 120 or so lawyers who made up the CIA’s legal team; over three decades, I had played a role in hiring and mentoring the careers of virtually all of them. One of my old bosses in the OGC, Stan Sporkin, once told me that in the final analysis, the only true legacy the head of a legal office has is the quality of the young lawyers he brings on board and leaves behind when he departs. I never forgot that, and I believe I did pretty well in adhering to Stan’s dictum.
In terms of my own career, I had gotten far more out of my thirty-four-year roller-coaster ride than I ever could have hoped for. There was no doubt in my mind about that. There was also no doubt in my mind that it was time for the ride to end.
The Senate confirmed Stephen Preston as CIA general counsel in early July 2009. Stephen asked me to remain on board for a transition period, and we settled on a Labor Day date for my departure from the OGC. He told me he wished I would stay longer, and I think he was sincere about that. I will confess to having occasional twinges of “separation anxiety” at that time about how I was going to adjust to being outside the secret world I had been happily dwelling in for so long. Being privy to secrets, after all, is something that’s alluring, seductive, exciting, special. I worried that it might also be addictive, and here I was about to go cold turkey.
But they were twinges, that’s all. The inescapable reality was that I needed to walk away. I had been an architect, who had turned into a public symbol, of a hugely controversial Bush-era program that the new president had not just ended, but had repudiated in the harshest possible terms. I had no business trying to hang around in the Obama administration. It would be an unfair burden to Panetta and Preston. The Agency needed a clean break from the past, and I represented the past. I didn’t want to have to be pushed out, as I had seen happen all too frequently to aging Agency veterans over the years who couldn’t accept that their time was over. It was always such a painful and embarrassing thing to watch. Besides, I was now over sixty, and I had spent literally more than half of my life at the CIA. It was never my goal to close out my career by keeling over in the halls of Langley. Enough was enough.
I moved out of the GC’s office to make room for Preston. I moved to a small adjacent office, and I tried to be as helpful to the new guy in his acclimation process as I could. (Lord knows, I had plenty of experience doing that.) Mostly, though, I tried to stay out of the way. In the late morning of my last day in the office, the quiet Friday before the long Labor Day weekend, I wrote my final e-mail to the staff. I knew that many of them had already departed for the weekend and wouldn’t see it until after I was gone. That was the way I wanted it.
It was a farewell message captioned “Checkout Time at the Hotel OGC.” Determined that it not be syrupy or maudlin, I ended the e-mail by quoting the ’50s-era comedian and satirist Mort Sahl, someone most of the lawyers were likely too young to have ever heard of. Identifying him as a “noted philosopher,” I lifted a quote from the title of one of Sahl’s old comedy albums. “The future,” I wrote in my departing words, “lies ahead.”
I then turned off my computer and left the building. The fact was, I had no plans, no idea really, about what lay ahead for me in the future. Except that after the CIA, I was never going to seek another full-time job again.
Why did I feel that way? I can’t really explain it, except to say that maybe it was for the same reason DiMaggio never remarried after Monroe.
Postscript
August 30, 2012, marked yet another milestone in the tangled and turbulent decade-long history of the Agency’s post-9/11 detention and interrogation program. On that day, on the cusp of the Labor Day weekend, the Justice Department released a brief written statement from Attorney General Eric Holder that at long last eliminated the possibility that, after years of investigations and rancorous public debate, any CIA officers would be criminally charged for abuse of prisoners in the aftermath of the 9/11 terrorist attacks. Out of the more than one hundred cases Holder’s DOJ team had been investigating—actually, reinvestigating—over the previous three years, it had all come down to the deaths of two detainees allegedly at CIA hands, one in Afghanistan, and the other in Iraq in 2003. The terse Holder statement announced that “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” the Justice Department was not going to prosecute anyone for the two deaths.
And, on that oddly quiet and anticlimactic note, it all finally ended. No one from the CIA faced the specter of prison for abusing a detainee.
I was sitting alone at home, with my Agency career ever more distant in the rearview mirror of my life, when I saw the announcement on one of the cable networks. My reaction was a sense of relief combined with a lingering degree of bitter frustration that a result so predictable was nonetheless so long in coming.
The final two cases examined in the Holder probe—the details remain mostly classified—were long known to many of us in the CIA; indeed, it was the Agency itself that reported the two deaths to Justice shortly after each occurred. So there was no institutional effort to cover anything up. It was nonetheless apparent from the outset that a handful of CIA officers involved in each case made serious errors in judgment for which they were investigated and disciplined at the time; whether their conduct rose to the level of criminality was less clear, which is why the DOJ was brought into the loop. Holder’s decision not to prosecute did not come until a decade later.
Neither of the detainees involved, however, had anything to do with the enhanced interrogation program. The death in Afghanistan was in another CIA facility. That is no excuse, of course. But at the same time, I and other senior Agency officials also deserve our share of criticism—in our single-minded focus on establishing rules for and closely monitoring the treatment of the likes of Zubaydah and KSM, we didn’t devote sufficient attention and resources in those frantic early years to other, less significant detainees captured on the battlefield and held elsewhere. In the wake of the death in Afghanistan, we tried our utmost to do better in this regard, and I think we did.
As for the 2003 death in Iraq, not only was the detainee not part of the EIT program, he wasn’t even in CIA custody. Instead, he was captured and held by the U.S. military in its own facility, the soon-to-be-infamous Abu Ghraib prison. The military gave CIA officers access to question the prisoner, after which things evidently got out of control. There was no question that he was physically abused and that he died as a result. Not as clear was who—CIA or military—delivered the fatal blows, but in the ensuing CIA IG investigation, the Agency guys obfuscated and perhaps did things to obstruct the investigation. Again, the CIA disciplined the officers involved and referred the matter to Justice in early 2004 to sort out their potential criminal liability. An ugly case all around, made even more painful by the fact that it is the only link—attenuated as it is—to t
he separate and widespread abuse of prisoners by U.S. military guards that would give the name Abu Ghraib its permanent stain in the public consciousness.
The announcement came as a relief, of course, finally closing the book on a couple of the most sordid chapters in the CIA’s performance in the post-9/11 era. But why did it take Justice so long to decide not to prosecute? The answer to that question is the reason I—and I believe many of my colleagues still at the Agency—were frustrated by the denouement. In 2006, a group of seasoned career prosecutors at Justice—not some Bush administration lackeys—decided, after an exhaustive investigation of the two cases along with dozens of other incidents of possible detainee abuse, that the available evidence didn’t support proceeding with any prosecutions. At the time, all of us at the CIA thought, absent some new evidence in these old cases somehow surfacing, that that settled things.
It was not an unreasonable assumption—when the DOJ announces it is closing an investigation, it almost always stays closed. Especially when it comes to criminal cases in the national security arena, everybody involved is entitled to have a final decision to rely upon. In my experience, any criminal investigation into CIA activities or personnel turns the Agency topsy-turvy—CIA personnel and resources have to be diverted to support the Justice investigation, and dozens of Agency employees (not just the alleged miscreants) are subjected to intensive questioning, with all the attendant uncertainty and anxiety. So finality is critical: the DOJ ultimately gives the Agency a firm and definitive answer in any given case—prosecution or no prosecution—and we deal with it. So the life, and the mission, of the intelligence community can move on. That’s always been the pact between the Agency and the Justice Department, no matter what attorney general, Republican or Democrat, has been in charge. Until, that is, the arrival of Eric Holder.
