Michael Hayden’s Faustian Bargain

April 29, 2014–This journey into Alice’s wonderland on the CIA torture program and the now-notorious Senate Select Committee on Intelligence (SSCI) investigation of it continues. I’ve avoided comment for several weeks. I suppose I thought the issue might go away, what with the SSCI voting to release the report, thus putting its declassification into the hands of the Obama White House. But little seems to have happened there, and the president appears to have taken the course predicted here previously–giving the CIA the job of going up or down on the declassification. This incredible conflict of interest goes forward despite SSCI chairwoman Senator Dianne Feinstein’s request to President Obama not to permit that big bit of chicanery.

What has happened is that principal culprits in the CIA’s misdeeds are stepping forward to pre-empt the SSCI report. In the vacuum left by the absence of the investigative findings they assert–like former CIA clandestine service chief Jose Rodriguez– that no matter what the report says they know torture worked. The psychologist James Mitchell, whose schemes for manipulating individuals lie behind the whole CIA program, has had the audacity–drawing on the image of the principal character of the TV show 24–  to attack critics of torture as “people who have this Jack Bauer mentality.” Of course, it was the perpetrators of the torture, not its critics, who acted in character with agent Bauer. It is of a piece with this whole controversy that “intelligence” is fast disappearing into the maws of poseurs who apparently believe they can convince us that black is white if they say so enough times.

All of which brings us to former CIA director (and NSA director, and ODNI deputy director as well) Michael V. Hayden. A chief, no mere indian, Hayden once had charge of these people. In a sally several weeks ago the former spy chieftain inserted himself yet again into the debate. He suggested that the SSCI took the dim view it does of CIA’s torture because its chairwoman, Senator Dianne Feinstein was too emotional. There’s audacity for you! If you’re manly you’re for torture.

I’ve written here before about how Mr. Hayden should recuse himself from this debate–on both the NSA dragnet eavesdropping and the CIA torture the general was a player, his hands not clean and his “legacy,” if we can call it that, threatened by the outcome. But the general shows no inclination to desist. So let’s unpack Michael Hayden’s role in CIA torture and its cover-up.

Michael V. Hayden ascended to the top floor at Langley in May 2006. He moved over from the house of the Director of National Intelligence, for whom he’d been deputy. At the time the black prisons had already been revealed, Jose Rodriguez had already destroyed tapes (and obstructed justice), and the CIA had told a federal court in the Moussaoui terrorism trial that no tapes of interrogations existed (the obstruction). President George W. Bush had signed the Detainee Treatment Act. General Hayden could easily have taken the high road. His incentive to do so grew within the month, when the Supreme Court decided the Hamdan v. Rumsfeld case in a way that recognized and widened detainee rights. That triggered a new round of CIA-Justice Department exchanges over its “enhanced interrogation” methods.

Director Hayden took a different path. Until that summer Hayden held the lid on the torture, confining CIA information to Congress to the top leadership. At the agency Hayden pressed for a revitalization that would greatly increase “operational tempo.” Even CIA historians were pressed into service as glorified reports officers, chronicling operational activity, no longer writing agency histories. In September 2006 Mr. Bush closed the CIA prisons and sent the last fourteen detainees to Guantanamo in the care of the U.S. military. But Director Hayden tried to preserve black prisons as a contingency option. CIA issued new guidelines for detention a month later, and in November Hayden participated personally in a round of comprehensive briefings on CIA rendition for the SSCI and Senate Judiciary Committee. Then–and again in February and March 2007–Hayden’s line with the SSCI and its House counterpart was that torture had not been used in years, but that it should be available as a method to exploit. That was the position Mr. Hayden continued to press through the remainder of his tenure. When Barack Obama came to office–and issued an executive order on his very first day that outlawed torture and detention–Hayden’s lawyers made an eleventh-hour intervention to insert language into the order that would preserve a CIA rendition capability.

President Obama got his own CIA directors, starting with Leon Panetta. That put General Hayden on the outside defending the agency’s record. He opposed Obama when the president overrode protests to declassify the original John Yoo legal “opinions” contrived to justify torture. In the fall of 2009 Hayden helped organize and sign a letter from seven former CIA chiefs begging the president to drop all criminal investigations of U.S. intelligence personnel for torture and related offenses. The general commented favorably when Attorney General Eric Holder moved in that direction, and he could be depended upon for negative soundbites when the SSCI investigation got underway, as it progressed, and in the controversy surrounding its release.

The trajectory of Michael Hayden’s participation in these events is quite clear. It’s not likely that the general will, in fact, stand down. But everyone ought to be aware of exactly where Michael V. Hayden is coming from and what he stands for. This is not a matter of a historical debate over CIA achievements, it is about preserving a role for a certain operational capability. The tragedy in all this is that America is better than what General Hayden stood for–and even had laws on the books to prohibit it.

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