Company Man: Thirty Years of Controversy and Crisis in the CIA (51 page)

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 Hayden—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.

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.