Playing to the Edge: American Intelligence in the Age of Terror (43 page)

“Good. Good.”

It’s hard to go through some of this stuff without building some personal bonds, so we really wanted to be at Andrews to say goodbye. I still hesitated for just an instant, though. I still felt that the CIA job should be and be seen as apolitical, which suggested the Mall or just staying away. But the incoming president’s decision to replace me pretty much lightened that load for me. If anyone had made this political, it wasn’t me.

We arrived at Andrews early and were lucky enough to be in the group that could wait in the DV lounge for the arrival of the helicopter from downtown. I knew that lounge well from countless trips in and out of the capital, but the scene this time was markedly different. The usually quiet, spacious, and well-appointed room was packed with folks in what resembled a somber (but not quite funereal) Bush administration reunion. Current and former officials were everywhere.

Most people were in small groups conversing, with one eye on the TV screens as the events downtown unfolded. With the words “So help me God,” spontaneous, polite applause filled the lounge and we then prepared to walk the short distance to the hangar where the now former president would shortly arrive.

The temperature in the hangar was in the high twenties, but we were
at least shielded from the blustery winds as the Bushes and the Cheneys disentangled themselves from the ceremony downtown and made their way to the helicopter for a last ride to Andrews.

The crowd there was pretty evenly divided: one part GIs who had served the president in his travels; one part young White House staffers; and one part senior (including cabinet-level) officials. The first two groups ensured that there would be a lot of hooting and hollering when the party arrived from downtown. They didn’t disappoint.

Vice President Cheney had hurt his back, so he entered in a wheelchair with a blanket over his legs, unfortunately looking like he was auditioning for Lionel Barrymore’s role of Mr. Potter in some as yet unannounced remake of
It’s a Wonderful Life
. The president bounded onstage, acknowledging the loud applause as he scanned the crowd. He noticed Jeanine and me off to one side, made eye contact with a slight hint of surprise in his face, and gave me that almost imperceptible nod he had given me in the Sit Room a year before.

The ceremony, such as it was, was short. The young folks afterward rushed the rope line around the stage, and I turned to leave but was stopped short by my wife, who said she wanted to go up for one last goodbye. So we waited at the very end of the rope line as President Bush made his farewells. When he got to us, Jeanine was in front of me and got a hug. Then President Bush reached beyond Jeanine, grabbed my shoulder, and pulled me toward him. At which point the forty-third president of the United States gave me a warm embrace, practically kissing my forehead, and then wordlessly began to walk toward the waiting 747 for the trip to Texas. Andrews was the right choice.

As the Bush family went to Texas, I went back to work. I would be President Obama’s CIA director for the next three weeks. We continued to make our adjustments to the new team. The president’s staff demanded brevity in written intelligence products, so much so that one analyst labeled what we were writing for the morning briefing as PDB haiku. I gave an operational update, scaling back the detail I knew President Bush had liked, and I was still told never to brief the president on such
minutiae again. Given how much President Obama later got into the details of programs like targeted killings, I suspect the early fretting was more from his staff than it was from him.

But that was going to be somebody else’s problem now. I was leaving and sent one final message to the workforce. It read, in part:

Our Agency has chosen a quotation from the New Testament to underscore its core mission: “And ye shall know the truth and the truth shall make you free.”

Today, though, the Old Testament offers relevant guidance: “To everything there is a season and a time to every purpose under the heaven.” It is the season and the time for Jeanine and me to say farewell to you, the wonderful men and women of the Central Intelligence Agency. We have been here for nearly three years and consider ourselves privileged to have been a part of you and your work. . . .

You have . . . carried out your duties with integrity and in a manner that respects American law and reflects America’s values. The Nation could ask no more.

You may catch a glimpse of me later in the week but that will largely be me moving out. That’s physically moving out. We will be with you spiritually and emotionally for as long as you will have us.

With Deepest Respect,

Mike Hayden

18th Director of CIA

There was nothing left to do but go. Midafternoon on a cold February Friday, Steve Kappes accompanied Jeanine and me through the front lobby to a waiting car for the drive to our house.

Once home, I turned my mind to preparing for the May Pittsburgh Marathon, for which I had signed up, one of the better life decisions I had ever made. I was hopeful that running ten, twelve, fifteen miles or more a day would ease any transition. I was right.

J
im, you’re about to spend at least the next forty-six months without a National Clandestine Service.”

When I was a junior officer, the air force taught me to begin a briefing with an attention step. That was the best one I had ever come up with, and I had just used it on the national security advisor.

Jim Jones was an old friend. We had been neighbors at European Command in Germany in the early 1990s and Jim and I had traveled together to Bosnia to coordinate US support to the UN mission in that country.

I was right to call the national security advisor, even if I was out of government now, but I was also trading on friendship. Jim was gracious, took the call, gave me the time I needed to explain my concern, and thanked me (genuinely) for raising the issue.

The issue was this: President Obama—at the urging of Attorney General Eric Holder and White House Counsel Greg Craig—had decided to stop fighting an ACLU Freedom of Information Act (FOIA) lawsuit and had agreed to release four Justice Department legal opinions that laid out in detail the techniques that had been authorized for CIA’s interrogation of high-value terrorists.

Only days before, agency lawyers had been working with Justice and other departments sorting out which of the many available FOIA exemptions they would use to protect various parts of the documents.

The memos had been a bone of contention for years. They were heavily classified as well as protected by legal privilege, and the Bush administration had only reluctantly shared them with an expanding circle of congressional members and staff.

Now Greg Craig was telling John Rizzo, CIA’s acting general counsel, that Justice would be telling the ACLU and the court that the government would release the DOJ memos with minimal redactions.

Rizzo was no stranger to the issue. He was the
acting
general counsel because the Senate Intelligence Committee had denied him the head post after he refused in his confirmation hearing to condemn these same DOJ opinions.

Rizzo related the Craig phone call to Deputy Director Steve Kappes, who was equally stunned. He began his own inquiries downtown while directing Rizzo to alert several former directors. That was pretty much standard practice when formers were going to be implicated in breaking news.

Rizzo called me, still with a tone of disbelief in his voice: “General, they’re going to release the memos.” I couldn’t believe it either. In the very same ACLU FOIA suit, CIA had been in front of the court the year before on an almost identical issue. Based on a declaration I signed, the judge had agreed to allow us to continue to protect—on grounds of national security—the specifics of waterboarding, an interrogation technique that had not been used since 2003, that the agency had not authorized for potential use in years, and that we had publicly acknowledged might now very well be illegal under laws recently enacted by Congress. Despite all that, the court agreed that revealing the details of the technique would tie the hands of a president in a future emergency, since, after all, laws and policies could change.

Releasing the memos would also be inconsistent with an administration commitment
not
to look backward. During the transition, the new
president and his team assured me there would be no retrospectives, no witch hunts, no persecution.

Indeed, when I finally got my “Dear John” phone call from the president-elect, he told me that my departure from CIA would help reinforce that message. A new director would make it easier for the president to stick to his policy and his pledge to move ahead.

After mulling the situation for a few hours, I called Jim Jones from the parking lot of a northern Virginia shopping center after dropping my wife off at her book club. The next day I spoke with White House Counsel Greg Craig and the following day, with Jim’s deputy, Tom Donilon.

I challenged the Justice Department’s presumption that the government was going to lose the case. I pointed to the successful 2008 defense of the details of waterboarding.

I emphasized that the White House could not expect to control events in the aftermath of a release. Despite the administration’s commitment to look forward, the release would fuel
more
requests for documents, and there was no natural firewall now that the details of the techniques themselves were
voluntarily
declassified.

There would be calls for prosecution—of the authors of the opinions, those who requested them, those who carried them out, those who gave them their policy approval. Calls for disbarment of lawyers and sanctions of medical and psychological professionals involved in the program would follow.

I described the decision as a “betrayal of trust” and a “fundamental dishonesty.” Good men could disagree on the merits of what the agency had done, and the president’s policy decision to ratchet back interrogation practices was the kind of decision that the agency expected the commander in chief to make. But this decision was different. This was pushing good people—doing what they did out of duty rather than enthusiasm—into the bus lane and seeming indifferent to what would happen next.

More substantively, I argued that revealing these techniques would teach our enemies the outer limits of what they could expect in any future
interrogation session with Americans. The Army Field Manual, the Department of Defense’s guidelines for interrogations, was unclassified and already available on the Web, where it was being used by al-Qaeda to teach how to resist American interrogation.

I reminded Greg Craig that the president’s executive order that limited government agencies to the Army Field Manual had also directed a government-wide study to judge whether or not the techniques authorized in the manual were sufficient to guard against future threats. Now the president’s own study was being mooted by this decision to reveal a detailed description of all our alternative techniques. Removing an enemy’s uncertainty by telling him the precise limits of what you may do, how, and for how long would only steel his ability to resist and make any exposed technique ineffective. That meant they were off the table. Period.

Craig pushed back. The president was
never
going to authorize any of the thirteen techniques that were about to be revealed. My first response was that—as popular as the president was currently—he was not president for life, and he had no right to foreclose options for his successors.

But I pressed the case more directly. “Let me get this right,” I said. “There are no circumstances of threat under which the president will allow us to interrupt the sleep cycle of a terrorist even if it would help get at lifesaving information?”

Administration officials frequently reminded me that the ICRC’s summary of interviews with fourteen former CIA detainees (chapter 12) had recently been leaked. The argument was that, since so much was already out there, it would be impossible not to declassify almost all of the DOJ memos.

I couldn’t fathom how the unauthorized disclosure of the ICRC report, which was based entirely on one-sided prisoner debriefs, could possibly lead the US government to conclude that it had no choice but to declassify and inventory for the world the details of our past enhanced interrogation program. There was a difference between speculation (informed or ill-informed) and formal confirmation by the US government.

And that brought my discussions to the core point, a point I
emphasized to Jones, Craig, and Donilon: the disclosure of these memos would have a terribly negative impact on the
future
actions of CIA.

With the details of a previously authorized covert action being revealed, declared criminal and disavowed by an incoming administration, every case officer in the agency would now hold any government assurance up to the light and ask if any pledge to them would last longer than one election cycle.

Later, on
Fox News Sunday
, I had a chance to spell this out by suggesting a conversation with a fictitious case officer who is asked to carry out an edgy covert action. The director assures the case officer, “Well, it’s authorized by the president. The attorney general says it’s lawful. And it’s been briefed to Congress.”

I then had my fictitious case officer respond: “[Okay, but] have you run it by the ACLU? What does the
New York Times
editorial board think? Have you discussed this with any potential presidential candidates?” I concluded, “In short, you’re going to have this agency—on the front line of defending you in this current war—playing back from that line.”

Who could blame current officers and the generations to come after them if they never again risked such exposure?

Greg Craig knew that releasing the memos would have an impact. He told me that this decision would “hurt our relationship with the agency.”

“Hurt?” I replied. “I think you’re
really
lowballing this, Greg.”

A sincere attempt by Director Panetta to buck up the spirit of those most affected by this was described by one participant as resembling a “pep rally in the Führer bunker.”

I was told that one officer asked the director if the people doing the things currently authorized by the Obama administration would be dragged through this same kind of knothole in five years. Panetta was honest. He couldn’t guarantee that they wouldn’t. But, he added, that wouldn’t happen under this president. Everyone in the room must have appreciated the candor, but they also realized that the durability of support for any of their actions might not be more than one or two election cycles.

We were working to avoid such an outcome. I was making calls. So was George Tenet. So was Porter Goss. So was John McLaughlin. So was John Deutch. That’s an uninterrupted string of directors and acting directors reaching back to 1995.

Each of us touched someone in the administration we knew. George called John Brennan, his former chief of staff and at this time deputy national security advisor for Homeland Security. Deutsch called Tom Donilon, an old friend and Jones’s deputy. McLaughlin called Denny Blair.

Late Friday afternoon, Craig told me that the train had stopped for now. He had asked the National Security Council to hold a principals meeting the following week. That meant that the national security advisor, the secretary of state, the secretary of defense, the chairman of the Joint Chiefs, the attorney general, the secretary of Homeland Security, the director of National Intelligence, and the director of CIA would consider the issue. We welcomed that, since in our view, the arguments against releasing the documents had not been addressed and the arguments in favor of releasing them had gone unchallenged.

All of this movement about the DOJ memos—pending Department of Justice decisions, CIA angst and anger, former directors weighing in, multiple phone calls between and among multiple actors—was kept from the public eye until Saturday, March 21, an eternity by Washington standards, but about five days according to the way time is reckoned in the rest of the country. And then the story was outed in
Newsweek
—sourced explicitly to administration officials and clearly (if implicitly) from the Department of Justice. The story claimed that the release of the memos had already been decided. The piece asserted that “the White House has sided with Holder.” A “senior Obama official” called the memos “ugly” and said they would “embarrass the CIA.” The official also claimed that I was “furious” in my phone calls to administration officials trying to reverse the decision.

By putting it out that the decision had already been made, those supporting release were leaning on the president, since any no-go decision
would now be portrayed as walking back a decision under pressure from the intelligence community. Later stories described the battle over the memos as a major test of the Obama administration’s commitment to transparency.

I told Craig that the administration sources for the articles were doing the agency (and the truth) a disservice by claiming that the agency would be embarrassed by the memos. That maliciously mischaracterized our objections—which had to do with national security, not shame or humiliation. In fact, the memos’ release would display the agency’s emphasis on continuing dialogue with Justice for the life of the program and would counter many of the ridiculously extreme accusations being made.

Over the course of the next weeks, the NSC did indeed meet on several occasions to try to come to consensus. From all accounts, the agency had opportunities to present its views, and Director Panetta was forceful in expressing them.

Public arguments swirled around the contention that CIA’s program had made America less safe by serving as a recruiting tool for jihadists.

It was an easy argument to make. It fit the narrative that American actions created many of our current problems. It just wasn’t all that true, or at least all that simple. Lots of things motivated Islamic extremists to take up arms against the United States, but I never encountered any evidence to suggest that CIA’s detention of about a hundred terrorist leaders and the tough interrogation of about a third of them had filled the ranks of al-Qaeda.

There were many factors. The spring 2006 National Intelligence Estimate assessed that the war in Iraq had become a “cause célèbre” for jihadists. Radical Web sites routinely cited US support for Israel or conservative Arab governments in their recruitment pitches. The abuses committed by US military personnel at Abu Ghraib had clearly accelerated al-Qaeda recruitment after those images were played and replayed around the world.

But I never encountered a radical Islamist argument that was based on
how CIA handled Khalid Sheikh Mohammed or Abu Zubaida or Abd al-Rahim al-Nashiri; I never found an Islamic partner who raised the issue or said that it was an impediment to our cooperation.

In fact, sensitive to how our relationship might be affected after we had very publicly moved fourteen high-value detainees to Guantánamo in 2006, I raised the subject privately with an important Middle East partner. He simply reassured me that he, his service, and his government knew who these people were and what they had done. This was not an issue, he told me.