FBI’s Solution

March 30, 2016–So the FBI got what it wanted. Now we can all shiver in our boots because they wanted content on one individual cellphone. Just to revisit some of the things I’ve said here in recent posts–

–Access to the San Bernardino phone was not necessary. The FBI had no case to make.

–Much more important was the protection of the programming principles for the devices. By vitiating that the FBI could access anyone’s iphone/cellphone. That was a larger purpose.

The ease with which the phone was broken into, as the Bureau now tells us, suggests its earlier claim– that it had no way to recover the data and therefore required Apple’s help–was bogus.

Now the Bureau should be required to divulge to Apple the specifics of the security weaknesses in its iphone devices that enabled them to be breached. Failing this, the FBI will stand revealed as lying in its other stipulation–that it only ever wanted to discover the contents of this one device, and that it was not seeking a back door to access people’s private information on a whim. If the FBI does not divulge that information, actually it appears Apple will have cause to sue the Bureau.

Public interest should also be accommodated. If FBI obtained this access by fraudulent claim and now refuses to make the public whole, that behavior appears consonant with what the Racketeer Influenced and Corrupt Practices (RICO) Act (PL 91-452) defines as criminal activity (here including extortion, fraud, robbery [of individuals’ proprietary information], copyright infringement, and obstruction of justice).

Perhaps citizens should bring a RICO Act suit against the FBI. The damage to the public wrought here has been huge and a treble damages award might very well defund the Federal Bureau of Investigation. If the FBI considers itself protected by the Patriot Act and related legislation–then that, too, serves to confirm its true purpose in seeking this access. Just saying.

Belgium on My Mind

March 26, 2016–The ISIS/ISIL terrorism story is moving quickly in the wake of this past week’s bombings in Brussels. I haven’t the time to write much but here are two quick points:

A lot is being made of supposed gaps in Belgian security, failure to prod the Abdeslam character on his knowledge of future attacks as if that were an intelligence failure. The truth is we’re talking apples and oranges. Police apprehended Abdeslam and the Belgians and French are building a criminal case against him. By definition that is a police matter. The nature of police work is that it is backward-looking, and oriented to legal action. Intelligence attempts to peer into the future. This is not an intelligence failure, it is an inevitable consequence of the orientations of different kinds of activity. I bet you Abdeslam, if only to brag, said something about the Paris attacks. Had he been shaken down first from the intelligence perspective, he would have clammed up (as he did in the event), and the Belgians would have gotten nothing out of him on any matter.

Also important is that Belgian intelligence and police action has evolved past the point where Abdeslam’s knowledge or lack of it is relevant. They have leads on other suspects, have already taken down different elements of the terrorist network, and are moving on from there.

Second point. Today’s speculation is about threats to Belgian nuclear plants. Some of the writing is breathless, as if a bunch of terrorists can waltz into a nuclear plant, extract a pile of uranium, and explode an atomic bomb. That’s highly unlikely. Apart from the fact that nuclear plants tend to have good security, the fact is that nuclear fuel elements are set into the reactors or held under a highly regimented (and secure) regime to protect from radiation leakage. Extracting fuel would require expert knowledge. Making nuclear fuel into a bomb would also require specialized knowledge. And equipment.

It’s not clear that an atomic bomb is attainable as a practical matter. A “dirty bomb,” in which radioactive material is used in a bomb in the same fashion as nails or shrapnel, is the more likely possibility. Either way, the radioactive material broadcasts its own energy signature so our terrorist would be in a race with security services looking for that giveaway.

The most likely scenario–if any of this should be regarded as at all probable–is an action designed to cripple a nuclear reactor in place, in effect, to trigger a Chernobyl or Fukushima. While an event such as that is certainly highly dangerous and would inflict grave damage, it is also within the range of failure modes which authorities have long considered possible, and presumably for which they have prepared contingency plans. I recognize this is a wish and a prayer, and that like many contingency plans, everything may go wrong when the moment for implementation comes, but this is a whole lot less dangerous than the specter of an atomic bomb exploding in a major city. Let’s try and keep some perspective here.

If It’s Tuesday, It Must Be Brussels

March 23, 2016–Once again events cry out for people the world over to stand in unity with a nation afflicted by a damaging terrorist attack. This time the locale was Brussels and the target transportation, specifically the airport and the Brussels metro. At this writing, casualties from the atrocious attacks stand at more than 31 dead and 300 injured, but that is sure to increase. I wanted to post something yesterday, in the moment, but I happened to be out of pocket and without access.

In America’s heartland for a speaking engagement, then at the airport for the plane home, and here at a bar awaiting an evening reception, there was unusual opportunity to observe–not only the horrifying events but the operation of the 24/7 news cycle, particularly television broadcasters. I don’t think it was pretty.

The TV people have a certain number of correspondents stationed in key places, and some others who focus on particular subjects. Broadcast news functions by pulling these people into the action while meanwhile surging other reporters into the area. Big Name moderators of shows also go to the scene–or not, as in this case, where a number of Big Names were in Cuba for President Barack Obama’s historic visit to Havana, and found themselves broadcasting full time coverage of Brussels from a Caribbean island. To supplement the Big Names and the reporters, news stations bring in commentators–who often have knowledge of the general subject, but lack any specific information beyond what the journalists themselves possess.

An important preliminary point is that the reporters, like all the public, are dependent on information handed out by authorities. The Belgian police and civil officials quite early put a lid on news releases. Subsequently they even asked media to refrain from reporting details that might reveal where authorities were focusing their investigation. Add to that the five-hour time difference between Brussels and even the United States east coast and the fact situation was this: incidents that occurred during pre-dawn hours U.S. time were under a news embargo at a moment U.S. broadcasters were filling the air with Brussels.

What resulted was an extravaganza of repetition and an exhaustion of insight, plus a premature rush to judgment that is almost certainly wrong. Much too frequently the reporters were “interviewing” each other, journalists barely arrived on-scene were described as assiduously “working their sources” when most likely they had none to speak of, and commentators were retailing draconian measures, egged on by Big Names, without any consideration of the practical.

With time to fill and drama to create, for example, multiple broadcasters repeatedly cited the contents of an Islamist safehouse raided last week as evidence of a far reaching plan for new attacks on top of the ones in Paris on November 13, 2015. What was this deadly arsenal? One AK-47, a certain amount of a type of plastique common in suicide vests, some detonators, and an ISIS flag. Someone in this apartment could have fashioned a bomb, but they had yet to stockpile the munitions for a war–and there were hardly the weapons to defend against an assault they had to know would come with overwhelming deadly force.

The lone survivor of the Islamists who carried out the Paris attacks, Salah Abdeslam, escaped when this apartment was raided, and phoned ahead to warn comrades. As it happened he phoned someone the Belgian police were already watching, immediately putting himself back on the grid for authorities. His capture followed.

At that point others in the network were on notice that time had run out. The Paris attacker would be interrogated. He might blab, but that almost didn’t matter–modern forensics, applied to the first apartment, as well as to the one where Abdeslam was captured, and to the computers and phones found there, and on the persons of each subsequent suspect, would inevitably lead to the files, addresses, and indications of network members. Each one captured would provide a jumping-off position to reach for another.

The scenario that makes the most sense for what happened in Brussels is: remnants of a network, understanding they are about to be run down, lash out to inflict the maximum of damage they can manage before their chances for martyrdom are taken away from them. The actual targeting of the Brussels bombs is consonant with that scenario–militants attacked the airport, and their chieftain, who had accompanied them as insurance, left on the subway, dropping a bomb as he got away. The hour that passed between the different bombings is also consistent with travel from the airport to the city center. This was most likely an act of desperation.

Broadcast news has it that a long-planned terrorist “offensive” was accelerated due to the Abdeslam capture, and that the militants struck targets off their list. There is am element of revenge against the authorities for the take-down of a terrorist leader. The implication is opposite to the scenario described above–here we watch the unleashing of an extended bombing campaign.

Time will tell which of these visions is accurate. But what broadcasters said yesterday was all too reminiscent of September 11, 2001, when television went on and on about a terrorist offensive when what had occurred was a carefully prepared one-off operation. The television yapping does the public a disservice, adding to hysterical tendencies, and inviting the sorts of intelligence and security surveillance that saps liberty and ends democracy. When that happens the terrorists will have won after all.

 

Dien Bien Phu: The Torpedo Boat

March 18, 2016–In accepting battle in the high mountain valley that was Dien Bien Phu, French commander-in-chief General Henri Navarre had simply assumed that his Expeditionary Corps would emerge victorious. The entrenched camp was dug in, had multiple strongpoints, and had been equipped with every appurtenance of modern warfare from tanks to high capacity .50-caliber guns to an airfield. What broke his smug surety, sixty-two years ago, was the fall of the strongpoint known as “Gabrielle,” situated directly north of the main resistance center of the camp.

This important strongpoint had offered the French observation of the valley entrance to Dien Bien Phu from the north. In Vietnamese hands, flak guns located there would cut one of approaches to the airfield, reduce French freedom of action, and have perfect observation for artillery strikes into the main camp. Located on a hill that rose separately from the larger mass of mountains which ringed the valley, the French called “Gabrielle” le torpilleur, the torpedo boat. This strongpoint had been configured into independently defensible sectors with two complete layers of bunkers and trenches. “Gabrielle” had won an award for the quality of its installations. It represented the best-built strongpoint at the entrenched camp.

A solid, reinforced battalion defended “Gabrielle,” along with a heavy mortar company of the Foreign Legion. The 5th Battalion, 7th Algerian Tirailleurs under Major Roland de Mecquenem with the Legion’s 1st Composite Mortar Company, provided an all-around defense. In reserve was the 416th Thai montagnard company. On the morning of battle French logistics had delivered extra ammo and food to the strongpoint in the expectation it might have to hold out. Four days worth of supplies were stocked.

The Viet Minh battle corps of General Vo Nguyen Giap had spared no effort to prepare its attack. His Viet-Nam People’s Army had never fought a larger battle against a fortified enemy. All his arrangements were reviewed at command conferences before the action opened. Giap slated two full regiments of his regulars for the operation, Le Thuy’s 165th of the 312th Infantry Division, plus Nam Ha’s 88th Regiment of the 308th “Iron” Division, the flagship infantry formation of the People’s Army. Vuong Thua Vu, commander of the 308th, was in overall command of the operation.

Le Thuy’s men would strike from the hill mass that had also overlooked “Beatrice,” and clear the foot of the hill and first line of defenses. Nam Ha’s troops would come from the northeast, debouching from the pass through which the “Pavie Track” made for Lai Chau.

Battle began late in the afternoon on March 14, 1954, hours after the final bullets had pinged in the assault on strongpoint “Beatrice,” with which the People’s Army had opened its offensive. The artillery struck first. Some French officers had noticed that “Gabrielle’s” dimensions corresponded to the standard dispersion pattern for a battery of 105mm howitzers firing at medium range. But the French artillery chief, Colonel Charles Piroth, had so much confidence in his own guns that he assured De Mecquenem the torpedo boat’s defenses would hardly be touched. Instead, Dien Bien Phu’s counterbattery fire proved ineffectual.

Instead bunkers on the hill collapsed under fire, one by one. Nam Ha’s Viet Minh attackers made the first breaches in the defenses. The Viet Minh guns fell silent at 2:30 AM on March 15, leaving the field entirely to Vuong Thua Vu’s assault force. But one shell had hit with devastating effect: exploding in 5/7 RTA’s command post the shell smashed its radio sets and wounded the battalion commander, his newly-arrived replacement, the artillery liaison officer and the CO’s aide all at once. The deputy CO lost his nerve. One of the tirailleur company commanders took over the defense.

The center of resistance at Dien Bien Phu ordered a counterattack. Slated for the mission would be the 5th Vietnamese Parachute Battalion of Major Andre Botella, which had jumped into the entrenched camp that very day. Backed by  some tanks the 5th Paras were supposed to cross part of the entrenched camp, pick up the Pavie Track, ford a river, and reach Gabrielle–at night and under enemy attack. Botella’s men had been at Dien Bien Phu for a time, months earlier, but under very different conditions and without the urgency of this night. This would be an unrehearsed counterattack over unfamiliar terrain, by a newly-arrived and disoriented unit, in the dark, against enemy opposition. Two companies of the 1st Foreign Legion Paratroops were added. They had to march through the center of resistance under fire, and they, too, had never rehearsed this mission. Just as bad, the overall commander of the relief force, Major Hubert de Seguin-Pazzis was late on the scene as the result of a last-minute confab at HQ. He not only had to catch up, jeeping across the camp, once in place he received contradictory orders. It is not surprising the counterattack fell apart at the ford.

By dawn “Gabrielle” was in Viet Minh hands. Colonel Piroth, the artillery boss, now realized the enormity of his error and the deep dangers of the French predicament. Piroth killed himself with a hand grenade. General Navarre’s fantasies of victory lay broken on the floor.

In Paris the French government had been preparing to send a military delegation for special talks with the Americans in Washington. Led by General Paul Ely, the head of the French equivalent to the Joint Chiefs of Staff, the mission had been intended to explore possibilities for United States action in case the Red Chinese air force intervened in French Indochina. Instead, the centerpiece of the Ely talks suddenly became what additional aid the U.S. could give France for the battle of Dien Bien Phu. The Ely mission highlighted an extraordinary phase of American participation in the Viet-Nam war. Read all about it in Operation Vulture.

 

The Fabulist as Operator: Michael Hayden’s Openness

March 15, 2016–Former top spook Michael V. Hayden loves operations. Pushing pieces around the board, making the game go his way–those are the things for which he wakes up in the morning. That’s the meaning hidden in the title of his recent memoir Playing to the Edge. In this space a few days ago (“Michael Hayden: Voice of the Fabulist, March 12, 2016) I covered Hayden’s recent appearance at the “Lawfare” forum of Stanford University. One of the questions he fielded there was which organization–Hayden had headed both the National Security Agency (NSA)  and the Central Intelligence Agency (CIA)–he had better liked being the director of. Having already said, in a different context, that NSA probably accounts for 60 percent or more of the President’s Daily Brief–and the CIA for much less than the rest–the general came back and said he preferred leading the CIA. He ticked his head. “Covert operations,” he said.

I’ve heard elsewhere–in more than one place–that Mr. Hayden takes more delight in the intricacies of minute spy activities than whichever other senior officer my commentator was familiar with. CIA lawyer John Rizzo writes, “Mike Hayden loved being a spymaster, by which I mean he reveled in conceiving and running covert operations involving real people and back-alley intrigue.” In fact General Hayden’s Big Idea when he took the helm at CIA was revamping the agency’s organization so as to increase the “operational tempo.” Even CIA’s historians were supposed to get involved. Operational tempo did increase–but how much of that was due to the latest moving of deck chairs and ho much to Langley’s increasing reliance on drone attacks remains an open question.

In his memoir the general recounts asking a civilian advisory board whether the United States will be able to continue espionage into a future where every day the demands increase for transparency and public accountability. He reports the board had its doubts. “Really important answer,” Hayden notes (p. 422).

What do you do to avoid that eventuality? You manipulate the public’s knowledge. Here’s a story, and it’s about spies, and it really happened:

When General Hayden came to Langley the hottest issue on CIA secrecy was the continuing effort to shield the “President’s Daily Brief” (PDB), reports that constantly update the chief executive. The PDBs had been recently controversial in the case of 9/11, where it developed that CIA had warned of an imminent threat. Elsewhere CIA had observed that terrorists might use airplanes as weapons. The Bush White House tried but failed to keep that information from reaching the commission investigating the 9/11 attacks and the public. The CIA asserted these PDBs were decision documents and eligible for special secrecy protection.

Dr. Larry Berman, a University of California history professor, asked for some of these PDBs to be released for his research, documents so old their secrecy was not credible. The CIA turned Berman down. In conjunction with the National Security Archive he sued for the papers’ release. The PDBs were not protected either by precedent or by nature–Berman and Archive could show that numerous PDBs and predecessor reports (the documents had another name in the Kennedy years) had long since been declassified, and that no claim had ever been made that releasing them revealed intelligence sources and methods or that they were exempt by virtue of presidential privilege.

While Berman lost at the U.S. district court level, his appeal was on its way to the U.S. Court of Appeals for the Ninth Circuit when Michael Hayden took over the CIA. As per Hayden’s question to his advisory board, it appeared there were reasons to expect the same societal forces pushing the effort to open the PDBs might sharpen across the board.

The general’s problem was to be open and shut at the same time.

Now, the CIA also had another ongoing secrecy appeal on its plate. That was the matter of the “Family Jewels,” a notorious compilation document ordered up by CIA director James R. Schlesinger in the early 1970s to discover what domestic abuses the agency had previously engaged in. Revelation of some of the ops that figured in that report had led to the “Year of Intelligence” in 1975, when the CIA had had to endure multiple major outside investigations. Even though its contents were picked through by all those inquiries, the CIA had forever kept secret the document itself. Numerous Freedom of Information Act (FOIA) requests for it had all been rejected. When Hayden arrived at Langley the National Security Archive had been pursuing an FOIA on the Family Jewels since 1992. Archive director Thomas Blanton had been in contact with CIA declassification officials encouraging them to release the material. It would be a good place to start, Blanton argued, if the agency wanted to turn the public dialogue away from torture.

Suddenly Blanton began to hear good things. Senior agency officials told him he’d be happy with an upcoming speech–General Hayden was scheduled to address the Society for the Historians of American Foreign Relations (SHAFR), the major professional association of diplomatic historians. Hayden duly appeared on June 21, 2007. He called himself “a lifelong student of history.” He went on to declare that “CIA recognizes the real benefits that flow from greater public understanding of our work and mission,” extolled a “very successful” FOIA program, and went on to assert that “we have completed our declassification review and are preparing to release most of the so-called Family Jewels.”

At the Archive we were overwhelmed, in the short term, with the impact of all this. The general seemed to be turning over a new leaf, perhaps a true age of openness was dawning. Media excitement built through the weekend. The CIA actually released the Family Jewels on the Monday, June 25, when a CIA car pulled up in front of the Gelman Library building of George Washington University, where the Archive offices are located. Television trucks were pulled up all along the street and Langley’s minions no doubt feared the consequences of their pictures appearing in the press. They called upstairs for Mr. Blanton and an assistant to come and retrieve the papers. Much has been done with that declassified document since.

But the Family Jewels were only the MacGuffin in all this. I did not realize it at the time but General Hayden now confirms it in his memoir. “I decided to centralize declassification review at the corporate level,” he writes (p. 121). That meant the agency’s Publications Review Board, a zealous and paranoid collection of the most antediluvian sort, whose antics I have documented in my book The Family Jewels. Releasing the document of that name marked not the beginning of openness but its end–or at least Michael Hayden’s play to the edge.

I was at the SHAFR luncheon where Hayden spoke. I ought to have realized at the time. There were two giveaways–during the questions and answers, several diplomatic historians raised the question of the PDBs. Far from talking openness, he spoke of desire for openness but  General Hayden wanted “space” for decisionmakers and also alluded to the spurious sources and methods argument, which those of us who had ever seen the already-declassified PDBs knew to be so much hot air.

The other giveaway was that CIA took the occasion of the SHAFR luncheon to roll out a new umbrella unit, “Information Management Services,” that combined the Review Board, which has the power of (and indeed is preoccupied with) suppression of anything written by a CIA employee, the Historical Review Program (which had done some declassification work in the past), and the agency’s FOIA and privacy office. An official of this new unit actually drew me aside at the luncheon, reminded me of a particular declassification request I had filed, which apparently he had worked on, and asked why “we” (the public) kept making requests like that. Managing information meant keeping it away from the public.

Hayden told us, “I firmly believe this approach will improve CIA’s standing with key partners inside and outside government, including people like you.” The CIA’s declassification process slowed down considerably in the wake of that episode. General Hayden personally participated in this op.

A few months later the Circuit Court ruled that CIA could, indeed, keep their PDBs secret for the moment, but it threw out the “sources and methods” bugaboo, telling the agency it would have to consider the true secrecy value of the various reports. That is what led to the event last September at the Johnson Library, where the CIA made a show of releasing thousands of PDB documents. Note the additional 8-year delay in opening this material. It’s also worth noting that in both the Family Jewels and PDB cases the agency speaks as if it had itself thought up the idea of releasing these documents, rather than being impelled by the public.

 

Dien Bien Phu: A Titanic Clash

March 13, 2016–Major Edward Yarbrough sat in a dugout beneath the looming hills. Yarbrough was visiting the French mountain fortress of Dien Bien Phu. It was March 13, 1954, precisely sixty-two years ago. Yarbrough, a United States Air Force officer, was doing precisely what President Dwight D. Eisenhower had promised the American public that U.S. forces would not do–engage in combat operations in French Indochina. Major Yarbrough led a hush-hush detachment of the Air Force’s 315th Air Division codenamed “Cat’s Paw.” Their mission was to use American planes–“sheep-dipped” C-119 transports temporarily lent to France and painted with French markings–to fly supplies to French posts in Indochina.

Eisenhower’s promise had been built into a U.S.-French agreement that the Cat’s Paw aircraft would not fly into combat zones. Technically, until March 13 that promise was being maintained–battle had yet to begin at Dien Bien Phu. But the use of the C-119 planes, which the French called “Packets,” was irresistible–on the long haul to the entrenched camp they could carry more then three times as many supplies as the C-47 “Dakota,” the mainstay of the French air force transport service in Indochina. Indeed, once battle had been joined the French prevailed upon Eisenhower to contrive a CIA proprietary unit that would continue the Packet service, now with no niceties about avoiding combat.

Anyway, a few days earlier a C-119 at Dien Bien Phu had lost an engine while landing and Yarbrough wanted to see if she could be repaired. His flight line chief at Cat Bi air base, outside Haiphong, where Cat’s Paw had its primary maintenance facility, estimated a crew of mechanics flown into Dien Bien Phu with a new engine could fix the Packet in a day and a half provided that the plane’s structure and fittings were still solid. Major Yarbrough went to Dien Bien Phu to find out. So Yarbrough would be there when the battle began, one of a steady stream of Americans to be in, out, and around Dien Bien Phu throughout the epic siege (read his story and many more in my book America’s Dien Bien Phu). The Vietnamese revolutionaries opened their offensive with a big artillery bombardment. Among other things, they targeted the damaged C-119, which would be blown up by cannon fire. Yarbrough hitched a ride out on one of the last French aircraft to escape the base.

The Viet Minh, a united front of Vietnamese led by communists, had been fighting France for more than seven years. They had gradually become stronger until here, at Dien Bien Phu, the revolutionaries not only far outnumbered the French but had artillery too, guns of 105mm caliber, powerful enough to smash Ed Yarbrough’s bunker–and almost every other one at the entrenched camp. Indeed, within not too many hours the officer commanding the sector the Viet Minh first attacked would be killed in the collapse of his dugout after an artillery hit.

Titanic forces were in play. The Vietnamese were fighting for their independence. That gave them a huge moral advantage, but the war had been long and costly and insiders saw signs their morale might be sagging. Chinese allies of the Viet Minh were pushing them to battle, but also anxious for their nation to make an entrance on the world diplomatic stage. Soviet allies of the Vietnamese were providing trucks and other aid, and setting that diplomatic stage.

France had tired of the war also. Here it was the United States pushing an ally. The French Army in Indochina was thoroughly professional–in part because the homeland had passed a law prohibiting draftees from being sent to the war. But the professional brotherhood of French soldiery, ranged against the depth of Vietnamese yearnings for independence, promised a battle royal. It began that day, with the assault on a strongpoint called Beatrice.

Michael Hayden: Voice of the Fabulist

March 12, 2016–Among the chorus of voices lifted in defense of the excesses of our intelligence agencies, when these came under the scrutiny of the Senate Intelligence Committee, was that of former Central Intelligence Agency (CIA) director Michael V. Hayden. The Senate committee report pictured Hayden as a defender of torture. Readers of this space may remember warnings against listening to Mr. Hayden that were included in posts in the wake of the Senate committee (SSCI) report. Hayden is an experienced speaker and trained briefer, smooth and unctuous. He is superficially credible, which is what makes him dangerous. Mr. Hayden is out there now, a retired Air Force general with a memoir to peddle. It’s high time to revisit the question of his believability.

A former director of both the CIA and the NSA–at the very moment it entered into the present scheme of dragnet eavesdropping–not to mention deputy to the Director of National Intelligence, Mr. Hayden had a finger in every pie. He slides by means of an m.o. where he typically asserts that he understands (this extreme view) as well as that (extreme view) covering the spectrum, and then proceeds to obfuscate.

The technique was on view last night in a lecture series sponsored by the blog “Lawfare” with the Hoover Institution of Stanford University. In that talk Michael Hayden deplored complaints against CIA for its torture of prisoners in black sites as a violation–a violation by citizens of CIA’s compact with the American people. What is that? Hayden explained that you have to check off boxes before sending an officer into the breach. Does the president approve the operation? Check. Does the attorney general? Check. How ’bout the CIA director? Yep. Does the operation have the agency’s sacraments? Uh huh. OK. It’s within the compact.

Sound good? It’s malarkey. First off, where was the vote–even the national conversation–where the “American people” agreed to that schema? It didn’t happen. Long ago George Tenet, Hayden’s predecessor several times removed, saw the need for a new national consensus on U.S. intelligence work after the Cold War, but Tenet dropped that project half way through and the quest was never resumed. There is no compact.

Second, on Hayden’s checklist there is exactly one elected official, the president. By definition the others, especially the CIA director and his minions, cannot be approval authorities for the compact. As for the president, George W. Bush–and the CIA–did their best to hide both black sites and torture, as well as the “legal” memoranda that were supposed to have justified this mess.

Insofar as torture is concerned the reality is that it is not certain the president did agree. Hayden himself admits there was much more difference between the first Bush term and Bush 2 than between Bush and Obama. Well, George W. in Bush 2 prohibited the torture (and indeed Obama followed suit). During Bush 1 George Tenet, the CIA director at the time, stopped the torture program–at least twice–because he was not sure the president approved it. Dick Cheney told the CIA President Bush approved, but Cheney also blocked every CIA effort to approach the president directly. As Hayden knows perfectly well, W.’s own assertion that he was briefed and did approve, has been disputed elsewhere. The difference between Bush 1 and Bush 2 is the leak of the black sites and CIA misdeeds, plus the increased distance from 9/11. To put it differently, permission, if there was that, went off the table the moment the public learned of the excesses. That sounds like a very different understanding of the “compact.”

Third, the attorney general (and here Hayden refers to John Ashcroft and then Alberto Gonzales–he hates Eric Holder, who is, apparently, a “true believer” against torture) is a weak reed on which to hang approval authority for a “compact.” By Mr. Hayden’s standard Attorney General Robert F. Kennedy’s knowledge of CIA plans to assassinate Fidel Castro brought them within a compact with the American people. Not likely.

(In the narrower sense, though he did not actually say so, no doubt Hayden was referring to the so-called “legal memoranda” compiled by the Office of Legal Counsel of the Department of Justice as approving of CIA torture. Not only have those memoranda collapsed, on their face, as legal underpinnings, they were given excessive importance in the first place. Legal memoranda are not laws or court decisions, and they do not substitute for law. Again, no “compact.”)

Both in speech and in his book Mr. Hayden refers to poll numbers that appear to accept the act of torture. Polls do not create a “compact.” Public opinion is notoriously fickle–and I’m sure if you could ask those CIA officers who carefully avoided the taint of these projects their reasons why, you would hear back that they knew opinion would change later and they’d be hung out to dry.

Which is exactly what’s happening to Mr. Hayden, Jose Rodriguez, and other CIA stalwarts of the interrogation programs. It’s their desperation showing. Unlike poll numbers and phony “compacts,” torture is a criminal offense under U.S. and international law, treaty law and the law of war, and associated activities are constitutional violations. There’s a reason why the psychologists the CIA hired to install its interrogation techniques insisted on coverage of legal fees for 20 years afterwards.

In various places Hayden has also made a point of trying to turn around the language. In particular in speaking of the SSCI, the former CIA director talks of the committee attempting to configure a “they say/we say” dynamic. Hayden connects the use  of the word “torture”–and others associated with the reality of what happened–with the supposedly false approach. Think about that for a minute–the CIA, an agency that specializes in deception (among its other skills), crafts a series of euphemisms (“enhanced interrogation techniques,” “high value detainees,” and so on), and then complains the public is out of line for using conventional vocabulary to discuss the issue rather than CIA’s deliberately contrived substitutes.

Tell me who is trying to impose the dynamic on this debate?

You see why you need to deal with Hayden’s logic, and his language, carefully.

In a few days I’ll have more to say about Hayden’s manipulation of secrecy and freedom-of-information while he was CIA director.