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CIA Director Michael Hayden came to the Council on Foreign Relations in New York on Friday afternoon to deliver remarks and to field some questions. It quickly became apparent that General Hayden has never been put through that SERE training program that the Air Force uses to prepare its pilots for hostile interrogation. He did a fine job trotting out his speaking points in his main presentation. But he collapsed into a flustered mass of contradictions as soon as he faced critical questioning. Indeed, check out the podcast that the Council has put up on its website, but go straight to the last 12 minutes of the hour-long appearance—that’s where Hayden faces the tough questions–and where the tires come off.
The essence of Hayden’s prepared remarks is simple: we at the CIA take the law seriously and obey the law. We also take Congressional oversight seriously and cooperate fully with Congressional oversight. The media, human rights groups and the public need to “back off” and “give us space” in which to do our work.
Hayden’s entire appearance boiled down to a pitch to be able to conduct his business in the shadows. Of course intelligence services need the shadows in which to operate. There’s nothing really surprising or extraordinary about that. And intelligence services both skate on the thin ice of the law and enter into the realm of the undeniably illegal. They regularly engage in conduct which violates the law of host countries in which they operate, for instance. Indeed, foreign espionage is outlawed just about everywhere—even as it gets a wink and nod among allies. It would be unimaginably naïve to suggest that an intelligence service operate everywhere within the strictest confines of the law.
That’s not the question here, and General Hayden fully understands that.
The unfortunate thing is that his assurances are simply not credible.
The first of the three final questions put to him went to interrogation policy. The questioner, Michael Posner of Human Rights First, very accurately noted that Hayden and President Bush went to Congress asking for authority to use “enhanced interrogation techniques.” Those techniques have since been disclosed, and indeed the entire game of keeping them undercover has been designed to fool the American public–the proposed target terrorist groups know all about them. We just need to listen to the ¿quién es más macho? exercise at the Republican presidential debates to know the whole list. It includes waterboarding, hypothermia, long-time standing, sleep deprivation of more than two days, enforced nudity and long-term sensory deprivation. Congress responded to the request under the leadership of Senators Warner, Graham and McCain, with a very clear-cut “no.” Nevertheless, Hayden and White House lawyers (that’s a euphemism for David Addington) drafted an Executive Order, released on July 20, 2007, that attempts to bring the techniques that Congress rejected in through the back door. The nation’s legal profession declared in a vote just one short of unanimity that to the extent this order was designed to introduce the “enhanced interrogation techniques” it was unlawful. The ABA called on Congress to overturn it.
So, General Hayden, there is no absence of clarity on this point whatsoever. To the contrary, you’re working hard to introduce ambiguity (that’s the theme of your talk, after all: don’t shine any searchlights in our shadows). The “enhanced techniques” are clearly unlawful, their use constitutes a felony. True Alberto Gonzales wouldn’t prosecute them. But he’ll be gone this week, and with time we will have a chief law enforcement officer actually committed to law enforcement. There is no meaningful difference of opinion on this. David Addington is not really a lawyer. He is a political hack. Here’s a more meaningful test for you: Would Robert Jackson have prosecuted someone for using these techniques on one of our intelligence operatives in World War II? The answer with respect to the “enhanced interrogation techniques” of which you’re so fond is clear (indeed, it’s historically documented). There isn’t any ambiguity, actually.
But Hayden seems to be reading from one of those index cards for which Addington is so famous. “In Hamdan, the Supreme Court extended the Geneva Conventions to unlawful combatants.” Wrong. The Geneva Conventions always applied to unlawful combatants, and that was fully and consistently the view of the military lawyers. The Supreme Court changed nothing. “I don’t know what Common Article 3 means,” he said three times. I think most observers would call that willful ignorance, which does not constitute a defense. But it’s disingenuous. The Administration’s problem is not ambiguity of Common Article 3, it is rather that its rules are clear enough and they outlaw the “enhanced interrogation techniques.” Hayden would only need to confer with his military lawyer colleagues who have written and spoken on this at length. Or look at the prosecutions at the end of World War II, in which interrogators were prosecuted, and some executed, for using just these techniques. The answers Hayden gave are unworthy of a person holding an important office in a government agency.
So what do we say about Hayden’s “commitment to uphold the law”? If the objective of his talk was to prove that, he flunked. His evasive and false answers provide evidence of an intention to subvert the law. And that in turn means that scrutiny and inquiry into what he is up to needs to be ratcheted up.
Likewise look at how Hayden deals with the two very well formulated questions concerning extraordinary renditions at the end. He was asked: why, if we’re such good interrogators, do we render prisoners to states known to torture, where our former prisoners are tortured? And then he is asked by a well-respected journalist turned human rights activist who has actually researched the renditions to Russia, how the CIA could render prisoners to Russia when we know they will be tortured, and they are in fact tortured? Hayden actually produces a correct statement of the legal standard. And he then proceeds to interpret it in a fashion that would only please Mephistopheles. As long as we have assurances, everything is fine, he says. Even in cases when we fully understand and know they will be tortured. Hayden is operating in the twilight world of David Addington in which law is nothing more than a series of semantic games, tweek a word here or there–give it some audacious and secret meaning–and you can call anything legal. Even torture. Others have tried that game in human history. But not, before the arrival of Team Bush, the United States.
But note Hayden’s list of options: “hold them in detention, send them to Gitmo, or render them.” What’s missing? Criminal trial, sentencing and imprisonment. It’s now a mantra of this administration to disclaim any interest in justice or the prosecution and punishment of people it styles “the worst of the worst.” Doesn’t that give you pause? It should.
And that leaves Hayden’s statement that he believes in and participates in Congressional oversight. There is plenty of reason for skepticism about that. Right now the intelligence community is engaged in one of recent history’s more outrageous games of three-card monte with an inquiry launched by the chair of the Senate Armed Services Committee, Carl Levin, into contracts with two private individuals to develop a regime of highly coercive interrogation techniques. Full battle array has been brought out and extraordinary measures taken to shield these two individuals, who may well be guilty of serious crimes. An attempt is being made to avoid inquiry by claiming that the contracts are beyond the jurisdiction of the Committee. A series of consciously misleading representations have been made to the Committee; an effort has been undertaken to disguise and deny the source of these dealings in the Department of Defense and involving Dr. Stephen Cambone. This inquiry goes right to the core of the current concerns about his agency’s evasion of law and Congressional oversight. And Hayden is not cooperating with oversight; he’s fighting it with the tools that he is authorized to use with foreign governments—but not the U.S. Congress.
Hayden’s appeal boils down to “trust me.” But there is remarkably little that’s trustworthy about Hayden’s remarks when he discusses interrogation and renditions.
A senior intelligence figure recently told me he had resolved to retire. Hayden, he said, is the major reason why. “After the dismal experience with Porter Goss, we were very upbeat about a career military man coming to the helm. We thought it would be an end to sleazy politics and an infusion of upright military values. Hayden is better than Porter Goss, but he’s more like Porter Goss than most of us expected. On the issues that are key to our reputation and morale, Hayden is every bit the equal of Alberto Gonzales—a spineless toady who gives the Addingtons and Cheneys what they want, without giving a second’s thought to our values or long-term institutional interests.” He went on to say, rather ominously, that Hayden was damaging morale by relying too much on fear and intimidation as management tools. I guess we’ll learn what that’s about in due course. But if you want to manage without being able to provide a positive moral example, there are not a lot of tools left other than fear and intimidation. This, alas, is the inspiring leadership that the Bush Administration offers the men and women who attempt to serve their country under it.
The real question in the end of the day is simple: are the strategies that Hayden is pursing making the country more or less safe? I have a very clear sense of that question and of the answer. The introduction of torture and torture techniques by this administration has been akin to a group of juvenile delinquents lighting a fire in a living room. The drapes and rug have caught on fire and there is every reason to believe the whole house will burn down if it’s not put out by an outside intervention. We expected that Hayden would be a fire marshal on the scene, putting out the fire and removing the matches from the hands of the offending juveniles. Instead, it turns out that Hayden is just another delinquent.
Our nation’s reputation has been trashed around the world. We are now despised and distrusted by populations which only a few years ago were close allies. We have provided the necessary fuel to resurrect and spread Islamic radicalism around the world. Are we safer as a result of these practices? No, our country is far less safe. The Taliban is resurgent in Afghanistan. Osama bin Laden remains free to tape his appeals and recruit. And our sense is that Al Qaeda is at least as strong as it was on 9/11. Those are the measures of a widespread failure–it’s a failure of leadership, of vision, of ideas.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Percentage of British elementary-school students who think Isaac Newton discovered fire:
The earth once had three moons; the two lost moons may have crashed into the surviving moon, or been sucked into the sun, or flung out of the solar system to drift through deep space.
In Florida, an 87-year-old World War II veteran flying touch-and-go drills in a Cessna collided with an airborne skydiver. “There was a ‘woof’ sound,” said a witness, “like falling on your face into your pillow.”
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