Hayden: The Good Soldier

John Prados

May 19, 2006

John Prados is a senior fellow of the National Security Archive in Washington, D.C., and author of Hoodwinked: The Documents that Reveal How Bush Sold Us a War (The New Press).

That awful day the Twin Towers fell, Michael V. Hayden was an Air Force lieutenant general and the director of the National Security Agency. He ordered non-essential workers to evacuate from headquarters. He sent his signals intelligence chief, Maureen Baginski, to see the agency’s counterterrorism unit on an upper floor in one of the NSA’s mid-rise buildings. Hayden visited them himself that afternoon and found the tough staffers in tears, but tacking up blackout curtains on their windows as if it were World War II. The general called home and asked his wife to make sure the kids were safe.

Fast forward to October 2002 and the joint congressional investigation of the 9/11 attacks, where General Hayden presented the NSA perspective. Some of his testimony seemed puzzling. “Where do we draw the line,” Hayden asked, “between the government’s need for [counterterrorism] information about people in the United States and the privacy interests of people located in the United States?” Hayden wanted Americans, as a nation, to address the issue, because it affected the focus of NSA activities, the standards for surveillance (“probable cause versus reasonable suspicion”), the type of data collected and the rules under which NSA operates.

At the time, I remember being perplexed by this soliloquy. It is now even less clear why General Hayden raised this issue, since we now know that within days of evacuating NSA headquarters, Hayden was following orders to begin a communications interception program that would target phones of Americans—one so secret that the Bush White House preferred skirting the law to having the debate necessary to change it. Moreover, General Hayden, who tells us that NSA employees are virtually weaned on civil liberties from the cradle, satisfied himself about the program’s legality on the basis of hearsay—never even reading the Justice Department legal opinion and requiring only verbal assurances from his own lawyers.

Key contracts for technology related to the domestic surveillance programs—a simple terrorist phone-intercept effort was soon supplemented by a massive databank of every call made in the United States that the NSA could find out about—were signed only weeks before Hayden’s 9/11 testimony. (Traditionally only the foreign ends of such conversations were subject to NSA interception.) Charitably, Hayden’s appeal to the joint committee reflected a concern to forge a new public consensus on telephone interception without revealing the NSA programs, but it can also be read as an effort to find political cover for an illegal wiretapping effort already underway.

Michael Hayden was a good soldier and marshalled his troops and resources to carry out Bush’s orders. He was rewarded with a fourth star and the post of Deputy Director of National Intelligence when Bush reformed the intelligence community to establish its present structure. When the NSA domestic programs were exposed, General Hayden rose dutifully to defend them. “Inherent foreign intelligence value,” Hayden declared this past January, “is one of the metrics we must use” in balancing individual freedom and society’s need  as required by Fourth Amendment protections against unreasonable search and seizure. Hayden likes to repeat things for effect so let me repeat that: The Bush administration presumes that there is a balance to be made against the absolute protections guaranteed by the Constitution of the United States . Orders from the president and review by the attorney general and NSA lawyers were considered sufficient. The limited, even tiny, domestic spy program that Bush acknowledged and Hayden defended in December and January has now turned out to be paired to a truly massive downloading of data on all Americans.

This is the man now up for confirmation as the next director of the Central Intelligence Agency. At his nomination hearing yesterday General Hayden forthrightly declared that the CIA needs to renew its social contract with the American people and acknowledged that trust is created by performance. Fair enough. But in seven hours of hearings he proceeded to reject a long series of opportunities to reassure Americans. On whether the CIA is bound by the Geneva Conventions, the International Convention on Torture, the anti-torture law Congress passed last year; on whether CIA contractors were so bound; on renditions, CIA secret prisons, the length of time alleged terrorists will be detained, the utility of interrogation, the use of “waterboarding,” Bush administration instructions on interrogation, egregious Justice Department memos excusing torture; on resisting Pentagon encroachments on CIA turf; and, of course, on the USA Today revelation of the massive telephone databanks, General Hayden either refused to comment in open session or denied their application to CIA. Every one of those subjects represented a chance for an affirmation of community values.

Hayden’s idea of winning public trust is to talk to the congressional intelligence committees, but elsewhere in the hearing he said he would do that only to the extent permitted by higher authority. He said he needed to “get the CIA out of the news, either as source or subject.” Sen. Ron Wyden of Oregon remarked that for months he has been getting practically all his information about the CIA out of the newspapers, despite being a member of the intelligence committee. General Hayden refused to provide an example of a set of circumstances serious enough to warrant resort to restricted congressional briefings (the “Gang of Eight” rule). He demanded a halt to public rehashing of CIA successes and failures, and he blew very cold even on the idea of releasing the CIA Inspector General’s investigation of the 9/11 attacks. Beyond conceding that overclassification is “a bad habit,” Hayden had nothing to say on CIA openness or its virtual paralysis on Freedom of Information Act requests. Way to build trust, Mike!

So what about all those phone records? The history of U.S. intelligence is littered with examples of capabilities created for one purpose and used in other ways. Data mining may add value to foreign intelligence today, but its utility in domestic contexts is obvious—and chilling. In the name of plugging leaks, the administration can trace the destination of every phone call a reporter makes. Lobbyists for bills can sketch the opposition by identifying those with whom opponents are in contact. Silencing of political dissenters can be perfected by identifying their networks. The distance between a simple counterterrorist program and these possibilities is no greater than an order to produce the information followed by an affirmative response, justified in the name of counterterrorism to save democracy.

As for the CIA, great pillar of the U.S. spy system, oversight has failed so miserably that in one version of the current authorization act for the intelligence budget, congressional “overseers” actually award arrest powers to CIA officers—this for an agency at whose birth the major legislative concern was to avoid any possibility of its becoming a secret police organ. The repeated interventions to reinforce Bush administration arguments or cut off debate—made by Senate intelligence Committee Chairman Pat Roberts at yesterday’s hearing—further illustrate the limits of the system Mike Hayden believes will rebuild trust in the CIA. Despite General Hayden’s unimpressive performance, the Bush White House thinks it has the votes to secure his confirmation. Bush will have a Good Soldier at the helm at CIA. Americans will have that much more to worry about.