The Hayden Letter

Former CIA director Michael Hayden played a key role in organizing support among his predecessors for the letter a group of them sent last week demanding that President Barack Obama end or curtail the Justice Department investigation into abuses by CIA interrogators during the Bush years. This initiative comes on top of months of active campaigning during which Hayden pressed the same point from every soapbox he could find.

Attorney General Eric Holder would be justified in wondering why General Hayden is so determined to suppress this investigation. The public is entitled to ask the same question. Hayden effectively argues for secret government and against accountability. His arguments are a disturbing carryover from the Bush administration and its violation of domestic and international law.

Tortuous Arguments

Sent to the president on September 18, the letter was signed by General Hayden, his Bush-era predecessors Porter J. Goss and George J. Tenet, and former CIA bosses John M. Deutch, R. James Woolsey, William J. Webster, and James R. Schlesinger. They argue that the torture investigation currently undertaken by the Justice Department sets a bad precedent to reopen matters settled by a previous administration and that “zeal on the part of some to uncover every action taken” might incline our foreign allies not to share intelligence with the CIA because “they simply cannot rely upon our promises of secrecy.”

Both arguments are significantly misleading. Both featured prominently in General Hayden’s earlier attempts to head off the investigation that Attorney General Holder ordered on August 24. And both seek to cloak CIA misdeeds behind fatuous appeals to national security.

The Hayden argument about foreign cooperation, for instance, is a favorite CIA smokescreen. Since the agency conducts 90% of its operations in cooperation with foreign services this is an all-purpose excuse. The other side of the coin is that the CIA frequently denies information to foreign services. The stories of the British, Australian, Israeli, French, and Danish reviews of pre-Iraq war intelligence are full of notes on all the data that the CIA withheld from them. Lack of CIA cooperation has brought legal prosecutions in Britain, Germany, Canada, and Italy to a halt. In short, CIA cooperation with allied intelligence services has been uneven and self-interested. Plain calculations of the advantage in collaborating with the CIA are far more important drivers of states’ propensity to work alongside us than simple issues of the protection of classified information. And the use of secrecy to hide illegal activity itself adds to the damage. In Great Britain both the foreign and domestic intelligence services (MI-6 and MI-5) are currently being investigated for collaborating with the CIA on “interrogations.” The best way to limit the impact of scandal has long been to get the bad news out as quickly as possible — the cover-up is worse than the crime.

As for the Justice Department’s “zeal” to uncover this sordid record, the investigation so far is not the result of some rush to judgment but of patient digging by a host of reporters and commentators. Our honorable spymasters resisted this probe at every turn. For instance, the original revelation of the CIA’s “black prisons,” Dana Priest’s story in the Washington Post on November 2, 2005, identified a facility in Afghanistan called the “Salt Pit” as the largest such prison in the country. Priest also reported the death of an inmate there at the hands of an inexperienced CIA officer. Agency officials probably began destroying the videotapes of the CIA interrogation sessions within days of the story’s publication. Porter Goss, the CIA director at the time, reportedly opposed this obstruction of justice (the tapes had been subpoenaed for the trial of alleged terrorist Zacarias Moussaoui, and the CIA filed a written declaration that they did not exist). But Goss never appeared before the congressional intelligence committees to explain these circumstances. In fact, Goss briefed Congress only once on CIA interrogations — to say that the agency was awaiting new Department of Justice analyses of the legality of torture.

Under George Tenet, another signatory of the Hayden Letter, the black prisons and interrogation programs got started. Tenet issued directives for conducting these programs in January 2003, according to the recently declassified CIA Inspector General’s report on the interrogations. The documented cases of detainee deaths took place during Tenet’s tenure. Tales of “renditions, “ghost planes,” and more were already becoming legion. A Muslim cleric was kidnapped off the street in Italy. But Tenet appeared at a congressional briefing only once, in September 2003.

As for Jim Woolsey, he was one of the neocon cheerleaders for war with Iraq and a primary booster of the fabrication that Saddam Hussein, in league with al-Qaeda, was responsible for the 9/11 attacks. Iraq brought us Abu Ghraib.

There is also a glaring omission. Admiral Stansfield Turner, who tried to craft a regime of intelligence within the law after the Church-Pike era, is found nowhere on the Hayden Letter. Turner no doubt preserved a sense that intelligence scandals only fester until they are laid open to the light of day.

Hayden’s Record

From the beginning Michael Hayden strove to contain the torture scandal. He took over the CIA only three months before President George W. Bush, bowing to white-hot controversy in September 2006, acknowledged the black prisons, closed them, and sent the remaining detainees to Guantanamo Bay. Hayden went from a congressional appearance that July at which he anticipated reviving CIA interrogations, to a marathon day of half a dozen briefings of lawmakers when Bush brought down the ax. Hayden actually presided over 15 of the 22 CIA events he staged for Congress prior to the Obama presidency. He ordered a security investigation of the CIA Inspector General. He sought fresh Justice Department opinions on the legality of torture. Through it all, Hayden argued that there was nothing to investigate in the CIA interrogation program — and had the temerity to cite the Bush Justice Department as his authority. This department repeatedly pronounced torture legal during the Bush years. A Justice Department decision to investigate would have been tantamount to rejecting its own legal arguments — and these were the same people who fired federal prosecutors to enforce a certain political line. Those legal positions and political tendencies without question cloud the Bush Justice Department decisions against prosecuting any but the most egregious torture cases — as well as the prosecutors’ failure to pursue accountability up the chain of command.

The general has an awfully tin ear for the public. At a mid-September conference in Geneva sponsored by the International Institute for Strategic Studies, Hayden argued that besides the usual technical and legal considerations, intelligence activities need to be “politically sustainable.” The CIA interrogation program was inherently controversial because it went against the grain of traditional American values — it was never politically sustainable. The notion that refusing to investigate these excesses can make them go away would be laughable if it were not so disturbing.

Most people have a rule for when they get into a hole: stop digging. Evidently Michael Hayden’s rule is to dig deeper. The Hayden approach of hiding behind secrecy will virtually guarantee that this scandal deepens and becomes more sinister.

John Prados is a contributor to Foreign Policy In Focus and the author of William Colby and the CIA: The Secret Wars of a Controversial Spymaster (University of Kansas Press) which, among other things, tells the story of CIA’s travails during the Church/Pike investigations.