Company Man: Thirty Years of Controversy and Crisis in the CIA (5 page)

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 replacement.

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.

I nearly dropped the phone.

My first priority was to alert Mark Mansfield, Jennifer’s successor as head of Public Affairs, and Director Hayden. I felt bad about dropping this bomb on Hayden, a brilliant career military officer and intelligence professional who inherited the vexing CIA interrogation program when he took over as director in the summer of 2006. As Negroponte’s deputy DNI, he had been aware of the tapes and the fact that they had been destroyed. But he had been an innocent bystander to the whole thing.

By now Jose was gone, having recently entered the CIA’s retirement transition program. I never had any indication that he suffered any repercussions from his unilateral decision to destroy the tapes. Meanwhile, the intervening period had been a very busy and often stressful time for me (what with my long confirmation battle, among other things), and the tape-destruction debacle had largely receded in my memory. I was aware that lawyers in our litigation division were monitoring the ongoing court cases to determine if the tapes potentially might be implicated, and I would be periodically informed they were not. As best I could tell, everyone who needed to know about the destruction had been informed.

But I thought I needed to call Goss, then in retirement for over a year, to compare our recollections. He was affable and direct as always, and everything was going smoothly until near the end of our conversation. “So please tell me,” I asked, “that you briefed the intelligence committee leaders about the destruction and that there’s a record somewhere of that briefing.”

There was a pause, and then Porter said, “Gee, I don’t remember ever telling them. I don’t think there was ever the right opportunity to do it.”

My heart sank. It was the ultimate nightmare scenario. The
New York Times
was about to break a huge, holy-shit sensational story about the CIA, and our congressional overseers would be finding out about it for the first time. For three decades, I had been an eyewitness to the Agency’s complex relationship with Congress, and I immediately knew what the reaction would be: Congress would go berserk. Just as it did twenty years before, when Iran-contra first leaked to the media after Congress had been kept in the dark about it.

This was going to be a giant scandal, and I was in the middle of it.

The
Times
’s first article appeared on Friday, December 7, 2007 (rather fittingly, the anniversary of Pearl Harbor). It was the lead story on page 1, above the fold. Follow-up stories by the
Times
appeared in the days thereafter, each of them given page 1 treatment. Columns of copy, graphic timelines, photos of Porter and me. The
Times
was playing it to the hilt, and why not? It was a hell of a story, and most of it was true. The rest of the media, as it usually does, chased the
Times
’s lead and piled on.