Company Man: Thirty Years of Controversy and Crisis in the CIA (6 page)

In mid-December, poor Hayden was summoned to two closed hearings before the House and Senate intelligence committees (known by their respective initialisms, HPSCI and SSCI) for a ritual pummeling, especially by the House committee. Hayden kept his dignity and calm in the face of the onslaught, but he was in an impossible position, having to try to explain someone else’s mess. The HPSCI members demanded more witnesses. Most of all, they wanted two people: Jose Rodriguez and me.

Jose’s lawyer, Bob Bennett, informed the HPSCI that Jose would testify only under a grant of immunity. Current Agency employees are essentially obligated to testify before intelligence committees. Being a CIA employee does not mean you have to relinquish your constitutional rights; still, stonewalling an intelligence committee by taking the Fifth
Amendment is a career-ender for a current CIA employee. Former or retired employees, however, are under no such constraints. Within days, Attorney General Michael Mukasey announced the appointment of John Durham as special prosecutor to launch a criminal investigation into the whole fiasco. There was no way Jose was going to testify without immunity, and there was no way the HPSCI was going to get crosswise with the just-beginning Durham probe by granting him immunity. Stalemate. The HPSCI set its sights on me.

So while I would like to say I agonized over what to do, I really didn’t. I was the CIA’s chief legal officer. I had to testify under oath, and without any delay or preconditions. It was my duty. Simple as that.

I went to Mike Hayden’s office to tell him I was prepared to show up whenever the HPSCI wanted me. He never ordered or even encouraged me to do it; he didn’t have to. He called the HPSCI chairman, Representative Silvestre Reyes, to give him the news. After Mike hung up, he turned and looked at me. “Thank you,” he said simply.

With Congress about to leave town for Christmas recess, it was agreed that my closed-session testimony before the HPSCI would take place on January 16, 2008.

I spent the holidays reviewing my personal files and searching my memory in an effort to reconstruct my role in the five-year-long tape-destruction saga. I was the only remaining member of senior CIA management who had been in it from start to finish, so I had a lot of ground to cover. Melody Rosenberry, my chief of staff, helped me immensely in preparing for the hearing, but otherwise I worked pretty much alone, talking to no one else. I thought it best not to interact with any of the current or former CIA officers involved in the matter, especially with Durham’s criminal probe just getting under way. I seriously considered retaining private legal counsel. After all, I was going to be testifying under oath.

Yet I couldn’t bring myself to do it. The perception would have been all wrong: the CIA’s top lawyer decides to “lawyer up,” so he must have something to worry about or hide. Thinking more from my gut than from my head, I decided to go it alone.

January 16, the day of the hearing, was sunny and not too cold. The hearing was scheduled for the afternoon, and I was driven in a CIA van from
Agency headquarters to the Capitol, accompanied by Melody Rosenberry, my special assistant Donna Fischel, a couple of representatives from our Office of Congressional Affairs (OCA), and Paul Gimigliano from the CIA’s Public Affairs Office. The OCA folks assured me on the ride down that they had worked out arrangements with the HPSCI for us to drive to a nonpublic entrance to the Capitol where we would be met and hustled up a private elevator to the HPSCI’s secure hearing room, which was located literally in the dome of the rotunda. That way, it was explained to me, I could avoid the expected scrum of cameras and reporters waiting outside the elevator on the floor of the Capitol rotunda. Not to mention all the tourists.

It was a seamless plan that unraveled as soon as we got to the Capitol. No one from the HPSCI was in sight, and the Capitol policeman guarding the perimeter of the grounds insisted that our van go no farther. So we all piled out, trudged up to the main public entrance, waited in line to go through the security screening, and struggled through a gauntlet of our fellow American citizens, of all ages and sizes, staring at the statuary and display cases. Finally, mercifully, the elevator to the HPSCI was in sight. And then I saw the cameras, the microphones, the TV lights, and the reporters holding notepads.

I had a few seconds to decide what to do. What I really wanted to do was turn tail, retreat to the van, and have the OCA folks call and scream bloody murder to the HPSCI staff. I fought off that instinct and kept walking toward the lights. One thing I was not going to do was stop and talk, but I sure as hell wasn’t going to skulk, either. And then I was there, abreast with the cameras, lights, and microphones. All I could think to do was . . . smile and wave. A quick, chopping wave that I had never done before, ever. I have no idea where it came from, although months later, watching the classic film
Giant
for the umpteenth time on cable, I noticed that it was a rather abbreviated and arthritic version of a gesture James Dean made several times in the movie. Whatever the subconscious motivation, a photo of me midwave appeared in
USA Today
the next day. Looking far more confident and jaunty than I actually was, I thought the photo more than anything perfectly captured the sense of false bravado I felt at the time.

Finally, I was able to reach the elevator to the HPSCI’s secure hearing room, where more surprises would await me.

Given the lavish media play of the roiling controversy, I expected a large turnout of HPSCI members for the hearing. And indeed there were at least twenty of them sitting in the three-tier dais when I was ushered into the hearing by Chairman Silvestre Reyes. A like number of staffers were perched behind their bosses. They were all staring down at me as I sat at the witness table. Melody Rosenberry and three or four other CIA and DNI congressional liaison officers settled into the chairs behind me. Melody was there to pass me relevant documents as needed during the course of my testimony—documents we had provided two weeks earlier to the HPSCI. She and the others were also there to take notes on what I would say in my sworn testimony; the official HPSCI transcript would not be available for review for weeks, and it was important for the Agency and for me to have an immediate record of what I was testifying to under oath. Even more important, Melody would listen carefully to my answers for any inadvertent errors or omissions and promptly let me know so I could correct the record on the spot. I was going to be under oath, after all. The presence of such backbenchers has been standard operating protocol with the intelligence committees for as long as I can remember.

As I settled in and studied my opening statement one last time before being sworn in, I half-heard some sort of procedural discussion a few members were having. At first, being preoccupied and with a slight case of stage jitters, I paid little attention. But suddenly I looked up to see the members voting to eject from the hearing everyone sitting behind me. I couldn’t believe what was happening; not only was the committee’s move totally out of the blue, but unprecedented in my long experience at the CIA. I was too flabbergasted to react, and before I knew it, Melody and the others were gone. I was entirely by myself, about to give sworn testimony without any sort of backbench support. Over twenty thoroughly pissed-off congressional inquisitors on one side (not counting staffers), me on the other.

It almost got worse. On the heels of voting to throw out my staff, the HPSCI member John Tierney, a Democrat from my home state of Massachusetts, had an even better idea: to “open” the hearing to the media. In other words, letting in the reporters and cameras that had ambushed me downstairs minutes earlier, presumably to publicly document my flogging by the committee. His motion was voted down—barely.

At last, after all of those unexpected dramatics, Chairman Reyes was
ready to swear me in. If the members’ intent was to mess with my head, they had succeeded splendidly. Before I cleared my throat to begin, I had one final, fleeting thought: Maybe I should have “lawyered up” after all.

Aside from a couple of brief breaks for votes on the House floor, the members took turns grilling me for four hours. Early on, it was the perfect storm of bipartisan ire. The CIA had never told anyone on the Hill that the tapes had been destroyed. There was no getting around that, and there was no way I could explain that, other than saying it “fell through the cracks,” which, although true, is no explanation at all. I shouldered my share of the blame for that failure. Not to serve as the fall guy, but because I deserved it. After Porter Goss told me on that frantic day following the destruction in 2005 that he would handle informing the Hill, I had left it to him and didn’t ask him about it until it was far too late. It had been an honest but grievous mistake on my part. I remain convinced that he never intended to hide the information from Congress or otherwise cover up the destruction; I had never heard anyone in the CIA advocate that course of action. But we had been obligated to tell Congress, and collectively we failed in that obligation. That was the essence of my mea culpa, and that’s what I told the HPSCI. Repeatedly.

Otherwise, I testified about all the events in the long tapes saga that I have described in these pages. With various members coming and going, the questions, and the criticisms, began to become inevitably duplicative, but I did my best to stay consistent and focused. Round after round, members took their shots at me.

Somewhere around the three-hour mark of the hearing, I sensed the atmosphere in the room changing. Even the most initially hostile HPSCI members—Democrats such as Tierney, Jan Schakowsky, and Rush Holt—seemed to be easing up on me. I like to think it was because they and others on the committee began to think: Hey, this guy readily agreed to come up here, we threw out his support structure, and he’s here alone, testifying under oath, answering all of our questions as best he can.

Or maybe they were just tired after throwing so many punches.

In any case, the hearing petered out an hour later. The final question was from Chairman Reyes, and it was pro forma: Would I be willing to return at some later date for additional questioning? “Certainly,” I responded, mustering as much sincerity as I could fake.