Gen. Hayden's Snow Job on Snowden - or - Have You Finally No Shame?
by Ray McGovern
July 21, 2013
Gen. Hayden’s Glass House
Editor Note: Official Washington’s national security/mainstream media incest was on scandalous display when ex-NSA chief Michael
Hayden posed as a CNN analyst to denounce Edward Snowden for exposing surveillance excesses that Hayden had a hand in
creating.
Former National Security Agency Director Michael Hayden should not throw any more stones, lest his own glass house be
shattered. His barrage Friday against truth-teller Edward Snowden and London Guardian journalist Glenn Greenwald invited
a return rain of boulders for Hayden committing the same violations of constitutional protections that he is now
excusing.
Writing as “CNN Terrorism Analyst,” Hayden read from the unctuous script previously used by “Meet the Press” host David
Gregory on June 23 when he questioned Greenwald’s status as a journalist. Hayden claimed Greenwald deserves “the Justice
Department’s characterization of a co-conspirator.”
But the principal target of Hayden’s ire was Snowden. After lumping him together with despicable characters like CIA’s
Aldrich Ames, Robert Hanssen of the FBI, and others who spied for the U.S.S.R. – and then disparaging “leakers” like
Bradley Manning – Hayden wrote, “Snowden is in a class by himself.”
But it is Michael Hayden who is in a class by himself. He was the first NSA director to betray the country’s trust by
ordering wholesale violation of what was once the First Commandment at NSA: “Thou Shalt Not Eavesdrop on Americans
Without a Court Warrant.” Not to mention playing fast and loose with the Foreign Intelligence Surveillance Act of 1978
and the Fourth Amendment to the Constitution.
While Hayden has implicitly offered a second-grader kind of excuse, that President George W. Bush and Vice President
Dick Cheney “made me do it,” that does not let Hayden off the hook.
I have found it helpful lately to read the one-sentence Fourth Amendment during TV and radio interviews in order to
provide necessary context and a backdrop against which viewers/listeners can gauge how the recent revelations about NSA
operations comport, or do not, with the strictures in the amendment. Thankfully, the language is pretty straightforward
and specific:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.”
Peer Review
Former NSA directors are not normally given to criticizing the performance of their successors. We know, however, about
the passionate disapproval with which two of Hayden’s predecessors reacted to the revelations in the Dec. 16, 2005 New York Times article, “Bush Lets U.S. Spy on Callers Without Courts,” by journalists James Risen and Eric Lichtblau.
Risen had ferreted out explosive information on eavesdropping (and other highly questionable operations) several months
before the 2004 presidential election, disclosures that would have given American voters some important information
regarding whether Bush deserved reelection or not.
But the Times, in its wisdom, acquiesced to the Bush administration’s demands that the story be spiked – not because the article was
inaccurate, but precisely because it was so accurate, and embarrassing. The White House gave the Times the familiar
warning that disclosure would “damage national security.”
But as 2005 drew to an end, the newspaper could wait no longer, since Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, was already in galley and about to be published. The book contained, literally, chapter and verse on the illegal
activity authorized by NSA Director Michael Hayden at the behest of Bush and Cheney. (And given the way court decisions
are going these days, it is seeming more and more likely that James Risen is headed for jail if he insists on the First
Amendment rights of a journalist and continues to refuse to divulge his sources.)
When the Times finally published the story in December 2005, the Bush administration scrambled to defend the warrantless
eavesdropping, a demonstrably gross violation of the Foreign Intelligence Surveillance Act (FISA) expressly forbidding
eavesdropping on Americans without a court warrant. The White House immediately asked Hayden, then Deputy Director of
National Intelligence, to play point man with the media, helping hapless Attorney General Alberto Gonzales defend the
indefensible.
Hayden’s perfidy was too much for Gen. Bill Odom, who had been NSA Director from 1985 to 1988. Odom was seething as he
prepared to be interviewed on Jan. 4, 2006, by George Kenney, a former Foreign Service officer and now producer of
“Electronic Politics.” Odom blurted out, “Hayden should have been court martialed.” And President Bush “should be
impeached,” added the general with equal fury.
Odom ruled out discussing, during the interview itself, the warrantless eavesdropping revealed by the New York Times three weeks earlier. In a memorandum about the conversation, Kenney opined that Odom appeared so angry that he realized
that if he started discussing the still-classified issue, he would not be able to control himself.
Why was Gen. Odom so angry? Because he, like all uniformed officers (as well as many civilian officials), took an oath
to support and defend the Constitution of the United States against all enemies, foreign and domestic; because he took
that oath seriously; and because he had done his damndest to ensure that all NSA employees strictly observed the
prohibition against eavesdropping on Americans without a warrant.
Also deeply disappointed was former NSA Director Admiral Bobby Ray Inman, who led NSA from 1977 to 1981 and actually
played a key role in helping shape the FISA law of 1978. (Before he retired, Inman had achieved virtual sainthood in
Official Washington as one of the country’s most respected intelligence managers, although he was known for looking the
other way – or as he put it, “pulling up his socks” – when the powers-that-be were spinning the facts or exceeding their
legal powers.)
Hayden’s Record
From the Bush/Cheney White House perspective, Hayden had performed quite well working with the supine mainstream media
to defend the Bush/Cheney illegal eavesdropping programs. For services performed, Hayden was nominated on May 8, 2006,
reportedly at Cheney’s urging, to replace CIA Director Porter Goss, who had retired abruptly on May 5 after just seven
controversial months as director.
So the nomination of Hayden to lead the CIA was very much on the minds of Inman, Risen and others who gathered for a
public discussion at the New York Public Library that same afternoon, May 8, 2006. Participants were brought up short
when Inman took strong issue with Hayden’s flouting of FISA:
“There clearly was a line in the FISA statutes which says you couldn’t do this,” said Inman, who went on to call
specific attention to an “extra sentence put in the bill that said, ‘You can’t do anything that is not authorized by
this bill.’”
Inman spoke proudly of the earlier ethos at NSA, where “it was deeply ingrained that you operate within the law and you
get the law changed if you need to.” Risen quipped about how easy it would have been to amend the FISA statute after the
9/11 attacks when the American people were demanding revenge: “In October 2001, you could have set up guillotines on the
public streets of America.”
Attorney General Gonzales, however, knew that there were still institutional obstacles to the NSA figuratively
decapitating the Fourth Amendment. At a press conference on Dec. 19, 2005, three days after the Risen/Lichtblau
disclosures in the New York Times, Gonzales was asked why the administration did not seek new legislation to enable it to conduct the eavesdropping
program legally. He responded:
“We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be
amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if
not impossible.”
This was not the only hint at the time that the surveillance program was so huge in scope and so intrusive that even a
servile Congress, typically reluctant to turn down any project labeled “anti-terrorist,” would not have blessed it.
Really, could even a doormat Congress be expected to approve “Collect Everything?”
Inman’s Short-Lived Criticism
By happenstance, I found myself with a front-row seat watching honor among thieves play out, i. e., how the Washington
Establishment generals and admirals cover for one other. Inman’s remarks at the New York Public Library had been written
up by Steve Clemons in his blog, The Washington Note.
Worse still for Hayden, Democracynow’s Amy Goodman showed video clips of Inman’s undisguised criticism of Gen. Hayden on
the morning of May 17, less than a week before the Senate Intelligence Committee took up Hayden’s nomination to be CIA
director. Something needed to be done … and quickly.
Specifically, Inman needed to be called to atone for his unspeakable sin of candor – the more so since he enjoyed
quasi-sainthood on both sides of the aisle in Congress. So there I sat on May 17 in the anteroom of the CNN/New York
studio of Lou Dobbs, who wanted to talk to me about my mini-debate two weeks earlier with then-Defense Secretary Donald Rumsfeld on Iraq.
Into the waiting room rushed a breathless Bobby Ray Inman. I am then told that he has just been given part of my time,
since he needed to discuss the nomination of Michael Hayden to head the CIA. I had read Steve Clemons’s blog and was
well aware of Inman’s remarks on May 8. As he rushed to don a borrowed tie, I had just enough time to give him an
atta-boy for his honesty at the library and to express the hope he would stay on message with Lou Dobbs. Naïve me!
Watching the monitor I saw Inman give his highest recommendation for Gen. Hayden as supremely qualified to head the CIA.
That, I thought to myself, is how the system works. Hayden’s nomination sailed through the Senate Intelligence Committee
on May 23 by a vote of 12 to 3 and the full Senate on May 26 by 78 to 15.
A whiff of conscience showed through during Hayden’s nomination hearing to become CIA Director, though, when he flubbed
the answer to what was supposed to be a soft, fat pitch from Bush administration loyalist, Sen. Kit Bond, R-Missouri,
then vice-chair of the Senate intelligence overlook committee:
“Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the
Justice Department lawyers, and White House officials all told you was legal, and that you were ordered to carry it out
by the President of the United States?”
Instead of the simple “Yes” that had been scripted, Hayden paused and spoke rather poignantly — and revealingly: “I had
to make this personal decision in early October 2001, and it was a personal decision … I could not not do this.”
Why should it have been such an enormous personal decision whether or not to obey a White House order? No one asked
Hayden, but it requires no particular acuity to figure it out.
This is a military officer who, like the rest of us, swore to support and defend the Constitution of the United States
against all enemies, foreign and domestic; a military man well aware that one must not obey an unlawful order; and an
NSA director totally familiar with the FISA restrictions. That, it seems clear, is why Hayden found it a difficult
personal decision.
Knowing the Law
No American, save perhaps Admiral Inman and Gen. Odom, knew the FISA law better than Hayden. Nonetheless, in his
testimony, Hayden conceded that he did not even require a written legal opinion from NSA lawyers as to whether the new,
post-9/11 comprehensive surveillance program – to be implemented without court warrants, without “probable cause,” and
without adequate consultation in Congress – could pass the smell test.
Hayden said he sought an oral opinion from then-NSA general counsel Robert L. Deitz, whom Hayden later brought over to
CIA as a “trusted aide” to CIA Director Hayden! (In the fall of 2007, Hayden launched Deitz on an investigation of the
CIA’s own statutory Inspector General who had made the mistake of being too diligent in investigating abuses like
torture).
Interestingly, Hayden did not pass the smell test for Sen. Barack Obama, D-Illinois, who on May 25 took a principled
stand against his nomination and voted against it the following day. In his brief but typically eloquent one-minute speech on the Senate floor, Sen. Obama was harshly critical of both Hayden and President George W. Bush. Obama insisted that
“President Bush is not above the law; no president is above the law.” His words did not ring as hollow then as they do
now in retrospect.
To his credit, I suppose, President-elect Obama did get rid of Hayden – for cause, as I tried to explain in “What’s CIA Director Hayden Hidin’” on Jan. 15, 2009. I ended that article with the following word of “good riddance.” (It was hardly prophetic – rather a
very safe bet):
“The sooner Hayden is gone (likely to join the Fawning Corporate Media channels as an expert commentator, and to warm
some seats on defense-industry corporate boards) the better. His credentials would appear good for that kind of work.”
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Ray McGovern works with Tell the Word, a publishing arm of the ecumenical Church of the Saviour in inner-city
Washington. During his 27 years as a CIA analyst, he worked very closely with conscientious colleagues at NSA who, if
they came upon the name of an American in an intercepted message, would razor it out of the paper before releasing it,
that being the ethos at NSA then.