53

John Marcano had an unnerving stare that was in full force during the afternoon session. He repeatedly hesitated and locked his eyes on Paige for just a moment before answering her questions. Judge Solberg seemed oblivious to it as she diligently took down notes.

Marcano’s eyes narrowed when Paige asked if his friend had jumped to his death from the World Trade Center. “What’s that got to do with anything in this lawsuit?” he snapped.

Kyle Gates stood and objected. Better late than never.

“It goes to Director Marcano’s motivation,” Paige argued. “It shows that he has a personal vendetta against terrorists.”

“That’s a stretch,” Solberg ruled. “Let’s move on.”

Wellington handed out copies of a bulky exhibit that Paige identified as the Senate Intelligence Committee’s 528-page summary of its report on the CIA’s detention and interrogation program carried out during the Bush administration. At the time of the events detailed in the report, Marcano had been head of CIA operations in Lebanon.

Paige directed Marcano to a page where the names of CIA agents who had participated in the program were redacted. She knew from the documents provided by the Patriot that Marcano was one of those names.

“Did you participate in this enhanced interrogation program during your time in Lebanon?” she asked.

“That’s classified information. That’s why the names are redacted.”

“Did you do the things in this report?” Paige asked. “Did you strip prisoners down, chain their wrists to the wall, deprive them of sleep for days, and feed them rectally?”

Gates stood but Solberg didn’t wait for an objection.

“You do not have to answer that question,” she said to Marcano. And then, turning to Paige: “This case is not about enhanced interrogation techniques. Let’s move on.”

“I understand, Your Honor,” Paige said, though she really didn’t. Marcano’s role in the torture program revealed a lot about the man’s character. But she and Wyatt could make a bigger deal about that during the jury trial—if there was a jury trial.

Paige looked down at her outline, flipped a few pages, and began the next set of questions.

“What is the date of the report you’re holding, sir?”

Marcano checked the publication page. “December 3, 2012.”

“During the Obama administration?”

“Obviously.”

“The report was filed six years after the events detailed in it?”

“That’s not unusual. In some cases, the delay is even longer.”

“So then, whether or not you are named in the report, isn’t it true that the CIA felt like it had been hung out to dry during the Obama administration? Like you had done what President Bush authorized but then risked being prosecuted for war crimes under Obama?”

Marcano placed the report on the broad rail in front of the witness box and pushed it a little to the side—creating some psychological distance from it. “Those techniques were authorized by the Bush Justice Department, by the DOD, and by the White House. And yes, CIA operatives felt like they had been hung out to dry when the next administration came in and tried to paint those same techniques as criminal.”

“Sounds political to me,” Paige said.

“Everything is political,” Marcano replied.

Now Paige was getting somewhere. She and Wyatt both believed that the real reason Marcano had met with Philip Kilpatrick on that park bench was to create a video recording of the meeting that would keep the White House from disavowing knowledge later.

“Didn’t you, when you became director of the CIA, take steps to permanently document White House approval of any controversial CIA programs?”

“I don’t understand the question.”

“Isn’t it true that you met with Philip Kilpatrick on a park bench in Washington, D.C., on the Thursday right before Operation Exodus?”

“Yes.”

“Was that location secure?”

“It was a public place, but nobody overheard our conversation. We took pains to be careful.”

“Did you have CIA agents secretly video that session?”

Marcano stared at Paige for a moment. Then he looked over at Kyle Gates, prompting the lawyer to rise.

“If the CIA did video that or any other meeting, those tapes would contain state secrets,” Gates said.

“I’m not asking for any tapes right now,” Paige responded. “I just want to know if they exist.”

Solberg took off her glasses and looked out into space for a moment. “The witness will answer the question,” she said.

“It would not surprise me if there were videos of some of my meetings. I would have to check.”

“In fact, a video was indeed made of your meeting with Kilpatrick before Operation Exodus, isn’t that correct?”

Marcano hesitated. He couldn’t deny the existence of a video that had already been released to the media. “Somebody released a video. It wasn’t me.”

“Do you have an audio recording of that meeting?”

“I would have to check.”

“That meeting is a central part of this lawsuit, and you don’t know if you have an audio recording of it?”

“I said I would have to check.”

“Then let me do the next best thing,” Paige said. “I’m going to play the video of that meeting and ask about some of the statements that were made.”

This prompted another round of objections and a lengthy argument. Eventually Judge Solberg ruled that because the meeting took place in broad daylight and at an unsecured location, the state secrets objections would be overruled.

Wellington controlled the video from his computer.

“Is that you and Mr. Kilpatrick?” Paige asked, pointing to a monitor next to the witness stand. They were simultaneously streaming the same video to a monitor on Judge Solberg’s bench as well as one for the defense lawyers.

Marcano admitted that it was.

For the next several minutes, Paige played the video and grilled Marcano about the meeting. When did it occur? Why did he keep his hand over his mouth? Why were they meeting in such a public place?

Her lip-reading experts had confirmed what the Patriot had told her: that Kilpatrick asked if the source had been compromised. She played the segment of the tape showing that question and glanced at Philip Kilpatrick, sitting at counsel table. “Is that what he said?” she asked. “He wanted to know if your source was compromised?”

Marcano shook his head. “I don’t remember exactly what he said.”

Paige ran another part of the tape. “Did he ask you right there about the level of confidence you still had in your source?”

“Maybe. That would be a natural question to ask the day before an important mission.”

“What did you tell him?”

“Objection, state secrets,” Kyle Gates said.

“As I ruled before, he can testify as to what he remembers about the conversation but should not reveal names of CIA assets in the field,” Solberg said.

“I don’t remember exactly what I told him,” Marcano said defiantly.

“Do you remember generally what you told him?”

“I’m sure that I would have given him an honest assessment of what we knew. I would have told him that I had confidence in our sources.”

“Why would you need a one-on-one meeting to tell him that? Why not just tell him that in the Situation Room with everybody else from the Security Council listening?”

“Objection!” Gates called out. “Calls for speculation.”

Solberg sustained the objection, but Paige knew she had made her point.

She rolled another part of the tape. “Did he ask you right there if you had independent corroboration of what you were telling him?”

“I don’t remember that question.”

And so it went, Paige quizzing Marcano about the conversation and Marcano acting like he didn’t remember a thing. His denials rang hollow, and Paige could see that Solberg wasn’t buying it.

“This is a secret meeting with the president’s chief of staff just one day before the U.S. was about to launch one of the most daring missions in SEAL history. That mission was totally dependent on CIA intelligence, and now you’re telling me you don’t remember anything about this meeting?”

Marcano stared at Paige for a moment. “I’m a busy man,” he eventually said.

Paige smirked at the answer and asked Wellington to shut down the video. She returned to her notes, ready to close it down.

“What does the term eyewash mean in the CIA?”

Marcano shot his lawyer a look, but Gates didn’t object. He would probably hear about it later.

“That’s not a term I use.”

“I didn’t say it was. But do you understand what it means?”

“Yes, I know what it refers to.”

“Then please tell the court.”

Marcano sighed and took a sip of water. “The term is used primarily by journalists when they accuse the CIA of not being truthful with its own operatives.”

“Didn’t the Senate Intelligence Committee and the CIA’s inspector general both conclude that leaders at CIA headquarters had routinely sent eyewash cables to agency operatives in places like Pakistan?”

“A cable sent to a remote office will be read by every operative at that location. Sometimes the agency needs to conceal information even from some of its own field agents. To do so, it sends a general cable that is untrue and finds other ways to communicate the truth to particular agents.”

“Didn’t the Senate Intelligence Committee report find that the CIA had lied to the White House and State Department—had eyewashed them, so to speak?”

“That report is not accurate,” Marcano said stubbornly.

“Is it the CIA’s position that it can lie to its own agents as well as the State Department and White House, all in the interest of national security?”

“Objection!” Kyle Gates said.

“Overruled. I would like to know the answer to that,” Judge Solberg said.

Marcano shifted in his seat. “The safety and security of this country depend on the quality of our intelligence information,” he said, emphasizing each word. “It should not surprise you that obtaining reliable information sometimes requires misdirection. We are accountable to the president of the United States and ultimately to the American people. And those people are smart enough to know that intelligence gathering is not an undertaking for Boy Scouts and choirboys. Yes, we use misdirection and mischaracterizations and sometimes even outright lies to protect our agents in the war on terror. That is our job, Ms. Chambers, no matter how repulsive it might seem to you. And I will not apologize for it.”

“Is that what you’re doing today?” Paige asked. “Eyewashing?”

“Objection!” Gates said.

But Marcano did not wait for the judge to rule. “I have testified truthfully under oath. I can’t help it if they are not the answers you were hoping to hear.”

After the deposition, Philip Kilpatrick and John Marcano rode together in a black sedan to Washington, D.C. Kilpatrick spent most of his time on his cell phone or responding to e-mails. Marcano was in a foul mood and spent his time pretending to read important CIA briefs. Though soundproof glass separated them from the driver, they spent little time talking about the case.

Marcano was dropped off first at his home on the outskirts of Arlington. It was a large brick house with a circular driveway, illuminated at night with soft porch lights, lamps for the driveway, and walkway lights on the sidewalks.

“You did a good job today,” Kilpatrick said.

Marcano turned to him before getting out of the vehicle. “I won’t take the fall for you,” he said. “And I won’t take the fall for the president. Make sure she knows that.”

“Nobody’s taking a fall on this,” Kilpatrick said.

Without another word, Marcano gathered his briefcase and stepped out of the vehicle.

Kilpatrick was on his cell phone before they got out of the driveway.

“How’d it go?” the president asked.

“It was a disaster.”