Company Man: Thirty Years of Controversy and Crisis in the CIA (48 page)

But Bybee II—like the EIT program itself—was still highly classified as I sat there in the open hearing. I couldn’t talk about it. And so I struggled, and Wyden pounced.

In the years since, I have frequently thought about this exchange with Wyden, since he would repeatedly later cite it publicly as the primary reason he decided to take the lead role in blocking my nomination. Could I have answered it in a better way? Perhaps. Could I have answered it in a different way, to say that I should have objected to Bybee I? No.

Suppose I had acknowledged to Wyden, in front of the TV cameras, “Yes, Senator, in retrospect I should have objected to Bybee One because of that language in it that you quoted.” In the first place, it would have done me no good. Wyden was a foe who could not be appeased. Almost certainly, he would have jumped all over me: “So, only now are you telling us this, five years later? Why didn’t you object when it would have made a difference? You stood by quietly and let stand an opinion on the torture statute, of all things, that you thought was seriously flawed? Is this one of those ‘confirmation conversions’ we sometimes get up here?” All of which would have been obvious, logical questions.

But there was another, far more important reason I couldn’t say what Wyden piously claimed he wished I would have said: It would have meant publicly throwing the Agency—and the hundreds of CIA officers at all levels who had been involved in the still-ongoing interrogation program—to the wolves.

For years, I had been assuring all of these people—my colleagues, clients, and friends—that the program from the beginning had the authoritative, written imprimatur of the Justice Department. To be sure, the key legal document for us had been Bybee II, the top-secret memo to me that
Justice never backed away from. Not Bybee I, which was addressed to the White House and consisted of a lengthy, dense, aggressively argued analysis that set a baseline for torture (“organ failure . . . or even death”) that the EITs, in the way they were to be administered, never came close to approaching.

And yet Bybee I and Bybee II—memos issued on the same day by the same man—were inextricably linked. After all, they were both prompted by my request for definitive, written Justice Department guidance. I couldn’t distance myself from one without potentially eroding the legitimacy of the other. And I simply couldn’t do that. I couldn’t do it to the people who had trusted and depended on my word that the EITs were legal, who would never have participated in a program—no matter how critical to preventing another 9/11—that constituted torture, one of the most repellent words in the English language.

For me to start backpedaling in front of the committee simply to curry favor for a better job title would have been worse than feckless—it would have been a craven betrayal. It was—and is—unthinkable.

As the open session mercifully wound down, I found myself increasingly eager to get off that public stage and into the closed session. To answer Levin. To answer Dianne Feinstein, the California Democrat who also had pressed me on sensitive details about CIA counterterrorist activities that I similarly said had to be deferred until we could all get behind closed doors. To answer Wyden.

Especially Wyden. In addition to his barbs about my not disavowing Bybee I, Wyden pushed hard in the open session about CIA operations in Iraq and about the CIA’s authority to capture, detain, and interrogate U.S. citizens abroad suspected of involvement in terrorist activities. With everyone watching, he wagged his finger at me and vowed to get deeply into these issues at the closed session. In fact, Wyden voiced these intentions in the last few minutes of the open hearing, so his words were ringing in my ears as I left for the committee’s secure hearing room in the Hart Senate Office Building. It was just yards away, and the closed session would begin in only a few minutes. I was looking forward to my opportunity, away from the TV cameras and reporters and the spectators, to answer the serious questions and charges from Levin, Feinstein, and Wyden then.

Except that I never got the chance. When Chairman Rockefeller gaveled the closed-door session to order, Carl Levin was nowhere to be seen. Neither was Dianne Feinstein. And neither was Ron Wyden.

None of them showed up for the duration of the hearing. Rockefeller mentioned something about an ice cream social at the White House that was due to begin shortly. And then, after a few random questions from the members who were present, it was over. The closed session lasted forty minutes. It was one third as long as the open hearing.

The next I heard from the committee was six weeks later, when Ron Wyden gave a speech on the Senate floor in which he declared me “unqualified” to be the CIA’s general counsel.

On June 20, the morning after my confirmation hearing, I was thrust back into the real-life world of the EIT program. Secretary of State Rice wanted a personal briefing on the newly refined, slimmed-down set of techniques, and she wanted to get it directly from the original architects of the program, two outside psychologists the Agency had hired under contract more than five years earlier. I worked to set up the briefing with my longtime friend John Bellinger, whom Rice had brought with her from the NSC in 2005 to serve as State’s legal advisor. The fact that it took place the day after my hearing was a coincidental bit of timing; the date had been set weeks before in order to accommodate Rice’s busy work and travel schedule. Actually, I welcomed the opportunity to attend the briefing—it kept me from dwelling on my performance at the hearing and the coverage it was getting in the media.

We arrived at Rice’s office that morning at the appointed time and were quickly escorted into a cozy, antiques-laden sitting room normally reserved for private meetings with high-ranking foreign visitors. She immediately disarmed me with some good-natured teasing about my “newfound media stardom,” citing an NPR report about my hearing that she had listened to while getting ready for work. It was the most personal thing she had ever said to me, and I was surprised and flattered by the warmth of her gesture. It was a side of Rice I had not seen before. She then directed us to a set of plush wing chairs arrayed around a small coffee table, and the briefing began.

The two EIT architects, perhaps intimidated by the surroundings and Rice’s presence, started their presentation in a low-key, diffident manner. They talked about their backgrounds, the genesis of the original techniques they came up with, the safeguards built into the program, the way the program had evolved and been refined over the years, and so on. It was probably nothing Rice hadn’t already heard about at a dozen Principals’ meetings, but she patiently sat and listened, occasionally interjecting about how she had always been impressed by the professional and effective way the CIA was conducting the program. It was a much more cordial and relaxed atmosphere than I had expected. After a while, the EIT architects loosened up a bit.

Maybe loosened up a bit too much. When the time came for them to describe the newly slimmed-down EIT program going forward, which did not include waterboarding and some of the other, harsher original techniques, my guys decided to do a more, um, visual demonstration. Suddenly, one of them jumped up from his chair, about three feet from where Rice was sitting, and began “acting out” on himself what he was describing. Looming directly over Rice, he would grasp his face, then slap his face, then grasp his stomach, offering color commentary all the while. John Bellinger, with a look of alarm, shot me a glance that said: Did you tell these characters to put on this self-flagellation act in front of the secretary of state? I pretended not to notice his look. I had carefully gone through their presentation with them in advance, but now they were winging it.

Avoiding John’s disapproving stare, I turned back just in time to see my guy demonstrate the sleep-deprivation technique, which, unfortunately, didn’t involve him pretending to sleep. Instead, he attempted to show how the detainee would be kept awake, which entailed keeping the detainee standing by elevating his arms in chains anchored to the ceiling. And there he was, almost touching Rice’s bare knees, poised over her in a scarecrow-like stance. She was gazing up at him with an expression of bemused equanimity.

Thankfully, that ended the visual demonstrations, and I quickly wrapped the meeting up, stammering something about how busy the secretary must be and how grateful we were for her time. Right to the end, Rice was unruffled and courteous. Nonetheless, as we left, I remember thinking: Thank God we didn’t keep nudity as one of the EITs.

On the way out, I ran into John Negroponte, who was in the reception area of Rice’s office waiting to see her. He had recently left his post as director of national intelligence to become Rice’s senior deputy at State. John had a copy of that morning’s
New York Times
in his hands, and he greeted me by pointing to a lengthy article describing my confirmation hearing the day before. “It sounds like it went all right for you,” he said. I laughed and responded, “It was a bloodbath.”

I meant the comment to be facetious. The truth was, I, too, thought that on balance the hearing had gone all right. I would prove to be very wrong about that.

At first, the reviews I got from my CIA colleagues and the White House were encouraging. Harriet Miers, David Addington, and Al Gonzales had watched the hearing on C-SPAN and told me I’d held my own with the Intelligence Committee. I did not hear from the president, nor did I expect to. The fact was that he scarcely knew me personally; all of our interactions before and after he nominated me consisted of brief encounters at the end of several large group meetings at the White House. In our early encounters, he addressed me as “counsel”; later, the salutation evolved into “chief,” accompanied by a comradely poke on the arm (which I thought was progress). I didn’t care—I was deeply grateful to Bush for having nominated me in the first place. I wasn’t yearning for us to be on a first-name basis.

By July, however, the Agency began to get informal soundings from committee staffers that my nomination was in trouble. The word was that no Democrat was likely to vote in my favor, partly because of a perception that I wasn’t sufficiently forthcoming in my answers during the “open” session of the hearing and partly because I refused to repudiate the legal reasoning behind the OLC’s memos. The unified opposition of the committee Democrats was disheartening, but not entirely surprising. After all, the EIT program—for which I had become the public poster boy—was a highly controversial Bush administration initiative, and I could understand and accept that opposition as being based on both political and moral grounds.