Editorial Column: What is NSA’s General Hayden Hiding?

Consortium News

January 15, 2009 – Outgoing CIA Director Michael Hayden is going around town telling folks he has warned President-elect Barack Obama “personally and forcefully” that if Obama authorizes an investigation into controversial activities like waterboarding, “no one in Langley will ever take a risk again.”

Upon learning this from what we former intelligence officers used to call an “A-1 source” (completely reliable with excellent access to the information), the thought that came to me in the face of such chutzpah was from Cicero’s livid oration against the Roman usurper Cataline: “Quousque, tandem, abutere, Catalina, patientia nostra!” – or “How long, at last, O Cataline, will you abuse our patience!”

Cicero had had enough. And so, apparently, has Obama, who has been confirmed once again of the wisdom of his vote against Hayden’s becoming CIA director.

It was striking that Obama did not even mention Hayden on Jan. 9, when the President-elect formally named Leon Panetta as his choice to run the CIA and Dennis Blair to be director of national intelligence.

Obama did announce that Mike McConnell, whom Blair will replace after he is confirmed, has been given a sinecure/consolation prize – a seat on the President’s Foreign Intelligence Advisory Board. Hayden, an Air Force general, should be given a seat in the military prison in Leavenworth (see below).

It is not only a bit cheeky, but more than a little disingenuous that Hayden should think to advise Obama “personally and forcefully” against investigating illegal activities authorized by President George W. Bush, since Hayden himself might already be described as an unindicted co-conspirator based on publicly available information.

Hayden has loudly bragged about the crimes in which he was directly involved, and defended others, like what he has called “high-end” interrogation techniques – waterboarding, for example.

Could it be clearer? “Waterboarding is torture,” said President-elect Obama last Sunday to George Stephanopoulos. Torture is a crime. Obama added, twice, that no one is “above the law,” although also citing his “belief that we need to look forward as opposed to looking backward.”

Despite the President-elect’s equivocations, it seems that President Bush and the current CIA director may have a problem. And apparently Hayden’s palms are sweaty enough to warrant, in his view, a thinly veiled threat.

In the outrage category, that threat/warning goes well beyond chutzpah. What an insult to my former colleagues at the CIA to suggest that they lack the integrity to fulfill their important duties in consonance with the law; that they would treat the new President like a substitute teacher!

Assessing Hayden

“Should have been court-martialed” was the judgment of the late Gen. Bill Odom about Hayden when Odom was interviewed on Jan. 4, 2006 by George Kenney, a former Foreign Service officer and now producer of “Electronic Politics.”  And President Bush “should be impeached,” added Odom with equal fury.

Odom ruled out discussing during the interview the warrantless eavesdropping that had been revealed by the New York Times just a few weeks earlier. In a memorandum about the conversation, Kenney opined that Odom appeared so angry that he realized that if he started discussing the still-classified issue, he would not be able to control himself.

Why was Gen. Odom so angry?

Because he, like all uniformed officers, took an oath to protect and defend the Constitution of the United States against all enemies, foreign and domestic; because he took that oath seriously; and because, as head of the National Security Agency from 1985 to 1988, he did his best to ensure that all employees strictly observed NSA’s “first commandment” – Thou Shalt Not Eavesdrop on Americans Without a Court Warrant.

Also disappointed was former NSA Director Admiral Bobby Ray Inman, who led NSA from 1977 to 1981 and was one of the country’s most highly respected senior managers of intelligence and an author of the Foreign Intelligence Surveillance Act (FISA) of 1978.

At a public discussion at the New York Public Library on May 8, 2006, Inman took strong issue with Hayden’s flouting of FISA:

“There clearly was a line in the FISA statutes which says you couldn’t do this,” said Inman.  He went on to call specific attention to an “extra sentence put in the bill that said, ‘You can’t do anything that is not authorized by this bill.'”

Inman spoke proudly of the earlier ethos at NSA, where “it was deeply ingrained that you operate within the law and you get the law changed if you need to.”

Hayden the Martinet

In contrast, Michael Hayden, who was NSA director from 1999 to 2005, chose to salute when ordered by Vice President Dick Cheney to create and implement an aggressive NSA program skirting the strict legal restrictions of FISA.

Hayden then proceeded to do the White House’s bidding in conning the invertebrates posing as leaders of the Senate and House intelligence “oversight” (more accurately – “overlook”) committees.

Sen. Jay Rockefeller is a sorry example of the fox co-opted by the hens. There is precious little the administration and intelligence community did not get away with under his feckless tutelage of the Senate intelligence overlook committee.

For a discussion of how politicians like Rockefeller and other intelligence “overseers” work hand-in-hand with the folks they are supposed to be overseeing, see “Jay Rockefeller Awarded Intelligence Public Service Medal: For Telecom and Torture Immunity?”

Rockefeller famously sent a handwritten note to Cheney expressing some misgivings about warrantless eavesdropping, but then misplaced the copy he had squirreled away in his safe.

Cheney ridiculed him recently on TV, revealing that Rockefeller recently asked him if he could please make him another copy and send it to him.

In December 2005, when the NSA program of warrantless eavesdropping hit the press, Hayden agreed to play point man on handling the smoke and mirrors. Small wonder that the White House later deemed him the perfect man to head the CIA.

A whiff of conscience showed through during Hayden’s nomination hearing, though, when he flubbed the answer to what was supposed to be a soft, fat pitch from administration loyalist, Sen. Kit Bond, R-Missouri, now vice-chair of the Senate intelligence overlook committee:

“Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the Justice Department lawyers, and White House officials all told you was legal, and that you were ordered to carry it out by the President of the United States?”

Instead of the simple “Yes” that had been scripted, Hayden paused and spoke rather poignantly – and revealingly:

“I had to make this personal decision in early October 2001, and it was a personal decision…I could not not do this.”

Why should it have been such an enormous personal decision whether or not to obey a White House order? No one asked Hayden, but it requires no particular acuity to figure it out.

This is a military officer who, like the rest of us, swore to defend the Constitution of the United States against all enemies, foreign and domestic; a military man well aware that one must never obey an unlawful order; and an NSA director totally familiar with the FISA restrictions.

That, it seems clear, is why Hayden found it a difficult personal decision.

Did the new, post-9/11 “paradigm” – created by then-White House counsel Alberto Gonzales and Cheney’s lawyer David Addington – trump the Constitution?

Was not illegal electronic surveillance a key part of the second article of impeachment against President Richard Nixon, approved by a 28 to 10 bipartisan House Judiciary Committee vote less than two weeks before Nixon resigned?

No American, save perhaps Admiral Inman and Gen. Odom, knew the FISA law better than Hayden. Nonetheless, in his testimony, Hayden conceded that he did not even require a written legal opinion from NSA lawyers as to whether the new, post-9/11 comprehensive surveillance program, to be implemented without court warrants and without adequate consultation in Congress, could pass the smell test.

Hayden said he sought an oral opinion from then-NSA general counsel Robert L. Deitz, whom Hayden has now brought over to CIA as a “trusted aide.”

In the fall of 2007, Hayden launched Deitz on an investigation of the CIA’s own statutory Inspector General, who had made the mistake of being too diligent in investigating abuses like torture. Enough said.

Hayden Comfortable With Torture

As the Senate Armed Services Committee has now confirmed, President Bush, by executive order of Feb. 7, 2002, gave carte blanche to torture. That was four years before Hayden was confirmed as CIA director.

But when asked to be chief apologist for abusive torture techniques, Hayden again saluted. And after nearly two years as chief of CIA, Hayden confirmed (on Feb. 5, 2008) that, in 2002-03, “9/11 mastermind” Khalid Sheikh Mohammed and two other “high-value” detainees had been waterboarded.

Waterboarding, an extreme form of interrogation going back at least as far as the Spanish Inquisition, has been condemned as torture by just about everyone – except the legal experts of the Bush administration, including Attorney General Michael Mukasey, who is still having trouble making up his mind on this issue – for reasons that should be abundantly clear.

Oddly, Mukasey is on record as saying that waterboarding would be torture if applied to him. And National Intelligence Director Mike McConnell told Lawrence Wright of the New Yorker magazine, “Whether it is torture by anybody else’s definition, for me it would be torture.”

McConnell then let the cat out of Mukasey’s bag, saying, “If it is ever determined to be torture, there will be a huge penalty to be paid for anyone engaging in it.”

It is a safe bet that this would be an extreme embarrassment, at least, for anyone in charge of an agency engaged in torture. Small wonder that Hayden has now summoned the chutzpah to warn the incoming President against launching an investigation into such matters.

Former CIA head George “we-do-not-torture” Tenet who – with the President’s Feb. 7, 2002, executive order in hand – was responsible for implementing torture policies, has evidenced some unease regarding the possibility that he might be held to account for taking liberties with national and international law.

Tenet included these telling sentences in his memoir:

“We were asking for and we would be given as many authorities as CIA ever had. Things could blow up. People, me among them, could end up spending some of the worst days of our lives justifying before congressional overseers our new freedom to act.” (At the Center of the Storm, p. 177-178)

Protesting Too Much

As the torture revelations piled up, Hayden again went front and center defending waterboarding and offering pitiable excuses for the destruction of tapes of the interrogation of high-value detainees, including Khalid Sheikh Mohammed.

On Fox News last June, for example, Hayden insisted that after 9/11, “it was the collective judgment of the American government that these techniques would be appropriate and lawful,” including waterboarding, which he referred to as a “high-end interrogation technique.”

Hayden protested, “Now, if you ask me was it lawful, the answer is absolutely.”

He went on to explain, “Literally thousands of Americans” have been waterboarded in training, and he suggested that this experience provided “a body of knowledge as to what the transient and permanent effects would be.”

Hayden made it clear that he was prepared to instruct his torturers to waterboard again, if the President ordered it.

Never mind that all those folks waterboarded in training knew it would stop as soon as they cried Uncle; never mind that the “technique” is among the most iconic and notorious forms of torture, for which American officers as well as Japanese and Germans have been prosecuted and convicted; never mind Hayden’s dubious claims that valuable intelligence has been gotten through waterboarding.

And never mind the crystal-clear observation made on Sept. 6, 2006, by Lt. Gen. John Kimmons, head of U.S. Army intelligence: “No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.”

Chalk it up to my bias – and my experience as an Army intelligence officer – but I’ll take Kimmons’s word over any blue-suited desk jockey – no matter how many stars on the shoulder of the latter.

Sanctimonious Sam

What brings up Cicero’s outrage again is the aura of sanctity with which Michael Hayden has attempted to envelop himself. His blind fealty in implementing and then defending the administration’s defiance of the law on eavesdropping made him well qualified, in the administration’s eyes, for the job of CIA director.

And Hayden gave every evidence of eagerness to be in charge of waterboarding and other “high-end” interrogation techniques.

Hayden likes to brag about his moral training and Catholic credentials. At his nomination hearing, for example, he noted that he was the beneficiary of 18 years of Catholic education.

That set me to counting my own years of Catholic education – only 17.  Seems I missed the course on “Ethical High-End Interrogation Techniques.”

The sooner Hayden is gone (likely to join the Fawning Corporate Media channels as an expert commentator, and to warm some seats on defense-industry corporate boards) the better. His credentials would appear quite good for that kind of work.
Quousque, tandem, abutere, Hayden, patientia nostra!

Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He was a CIA analyst for 27 years and is on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).

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