Barring a last-minute frantic call from the White House, CBS\u2019s \u201cFace the Nation\u201d will interview whistleblowers Thomas Drake (ex-senior executive at the National Security Agency) and Jesselyn Radack (ex-ethics adviser at the Justice Department). Michael Hayden, who headed the NSA and CIA and now is a chief NSA defender on CNN and Fox News, will also be interviewed this Sunday.<\/p>\n
It was a high privilege for me to join Drake, Radack and FBI whistleblower Coleen Rowley on a visit to Edward Snowden in Russia on Oct. 9. Never have I been in the company of persons who are such incorruptible straight-arrow patriots. Not so, sadly, Michael Hayden.<\/p>\n
Given how these network interviews go, however, Hayden will probably be introduced as the patriot he isn\u2019t. Here is a more fact-based introduction that I would urge the moderator, CBS\u2019s Major Garrett, to use:<\/p>\n
\u201cLet me also welcome former Gen. Michael Hayden. Gen. Hayden was the first director of NSA to violate his oath to the U.S. Constitution by acquiescing in the Bush administration\u2019s order to violate the Fourth Amendment, which, until then, had served as the \u2018First Commandment\u2019 at NSA.<\/p>\n
\u201cOn May 8, 2006, former NSA Director Adm. Bobby Ray Inman stated publicly that what Hayden did was in clear violation of the Foreign Intelligence Surveillance Act (FISA). Another former NSA director, Army Gen. William Odom, told an interviewer on Jan. 4, 2006, that Hayden \u2018should have been court-martialed.\u2019<\/p>\n
\u201cThis sad reality was known to CBS and our mainstream media colleagues before Hayden was confirmed as CIA director on May 18, 2006, but we were successful in deep-sixing it, keeping it out of the public debate.<\/p>\n
\u201cWe also are grateful to both the Bush and the Obama administrations for making it possible to have Gen. Hayden with us in the studio here today rather than having to speak with him via Skype from a federal prison where he assuredly belongs for his eavesdropping crimes at NSA. Hayden and the enabling giant telecoms escaped accountability via the Bush-pushed 2006 law holding all harmless for these violations of law.<\/p>\n
\u201cAs for President Obama, had he not decided to \u2018look forward and not backward\u2019 and thus avoid prosecuting Bush administration criminals, Hayden might be locked away today for crimes against the Constitution and international law. As CIA director, he was a staunch defender of \u2018enhanced interrogation techniques,\u2019 including waterboarding.<\/p>\n
\u201cGen. Hayden also has been one of the harshest critics of Edward Snowden, hinting broadly that Snowden should be put on the President\u2019s Kill List, a motion that was immediately seconded by House Intelligence Chair Mike Rogers. So, our thanks to Presidents Bush and Obama for enabling Gen. Hayden\u2019s presence here today, and thanks also for the rest of you for being here this morning.\u201d<\/p>\n
<\/p>\n
Less Forthcoming<\/b><\/p>\n
My guess is that Garrett\u2019s actual introduction will be a lot less forthright \u2013 and he will then give Hayden plenty of space to hurl as many stones at Edward Snowden as Hayden wishes, as Hayden did last July when he was writing as a \u201cCNN Terrorism Analyst.\u201d<\/p>\n
Hayden lumped Snowden together with despicable characters like CIA\u2019s Aldrich Ames, Robert Hanssen of the FBI and others who spied for the U.S.S.R. Hayden threw in Revolutionary War turncoat Benedict Arnold for good measure.<\/p>\n
Hayden disparaged Pvt. Bradley Manning, too, for leaking evidence of U.S. war crimes in Iraq and Afghanistan. Then, Hayden added<\/a>, \u201cSnowden is in a class by himself.\u201d But it is Michael Hayden who is truly in a class by himself.<\/p>\n Hayden was the first NSA director to betray the country\u2019s trust by ordering wholesale violation of what was once the First Commandment at NSA: \u201cThou Shalt Not Eavesdrop on Americans Without a Court Warrant.\u201d Not to mention playing fast and loose with the Foreign Intelligence Surveillance Act of 1978 and the Fourth Amendment to the Constitution.<\/p>\n While Hayden has implicitly offered a second-grader kind of excuse for his law-breaking, that President George W. Bush and Vice President Dick Cheney \u201cmade me do it,\u201d that does not let Hayden off the hook. Hayden also lectured a press conference<\/a> on Jan. 23, 2006, about his detailed knowledge of the Fourth Amendment, insisting that it does not require a showing of \u201cprobable cause\u201d before a warrant is issued for searches and seizures.<\/p>\n Given Hayden\u2019s ignorance of this important constraint against government abuse, I have found it helpful to read the one-sentence Fourth Amendment during TV and radio interviews to provide necessary context against which viewers\/listeners can gauge how the revelations about NSA operations comport, or do not, with the strictures in the amendment. Thankfully, the language is pretty straightforward and specific:<\/p>\n \u201cThe 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<\/i>, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\u201d<\/p>\n Extraordinary Criticism<\/b><\/p>\n Hayden\u2019s cavalier attitude toward ignoring the rights of American citizens even prompted passionate disapproval from two of Hayden\u2019s predecessors who are not normally given to criticizing the performance of their successors. Yet, former NSA directors Odom and Inman spoke out strongly after the revelations in the Dec. 16, 2005 New York Times<\/i> article, \u201cBush Lets U.S. Spy on Callers Without Courts,\u201d by journalists James Risen and Eric Lichtblau.<\/p>\n 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.<\/p>\n But the Times<\/i>, in its wisdom, acquiesced to the Bush administration\u2019s demands that the story be spiked \u2013 not because the article was inaccurate, but precisely because it was so accurate, and embarrassing. The White House gave the Times<\/i> the familiar warning that disclosure would \u201cdamage national security.\u201d<\/p>\n But as 2005 drew to an end, the newspaper could wait no longer, since Risen\u2019s book, State of War: The Secret History of the CIA and the Bush Administration<\/a><\/i>, was already in galley and about to be published. The book contained, literally, chapter and verse on the illegal activity authorized by NSA Director Hayden at the behest of Bush and Cheney.<\/p>\n When the Times<\/i> finally published the story in December 2005, the Bush administration scrambled to defend the warrantless eavesdropping, a demonstrably gross violation of 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.<\/p>\n Hayden\u2019s perfidy was too much for Gen. 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 \u201cElectronic Politics.\u201d Odom blurted out, \u201cHayden should have been court-martialed.\u201d And President Bush \u201cshould be impeached,\u201d added the general with equal fury.<\/p>\n Odom ruled out discussing, during the interview itself, the warrantless eavesdropping revealed by the New York Times<\/i> 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.<\/p>\n 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.<\/p>\n Also deeply disappointed was former NSA Director 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\u2019s most respected intelligence managers, although he was known for looking the other way \u2013 or as he put it, \u201cpulling up my socks\u201d \u2013 when the powers-that-be were spinning the facts or exceeding their legal powers.)<\/p>\n Hayden\u2019s Record<\/b><\/p>\n 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\u2019s urging, to replace CIA Director Porter Goss, who retired abruptly on May 5 after just seven controversial months as director.<\/p>\n 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\u2019s flouting of FISA:<\/p>\n \u201cThere clearly was a line in the FISA statutes which says you couldn\u2019t do this,\u201d said Inman, who went on to call specific attention to an \u201cextra sentence put in the bill that said, \u2018You can\u2019t do anything that is not authorized by this bill.\u2019\u201d<\/p>\n Inman spoke proudly of the earlier ethos at NSA, where \u201cit was deeply ingrained that you operate within the law and you get the law changed if you need to.\u201d 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: \u201cIn October 2001, you could have set up guillotines on the public streets of America.\u201d<\/p>\n 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<\/i>, Gonzales was asked why the administration did not seek new legislation to enable it to conduct the eavesdropping program legally. He responded:<\/p>\n \u201cWe have had discussions with Congress in the past \u2013 certain members of Congress \u2013 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.\u201d<\/p>\n 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 \u201canti-terrorist,\u201d would not have blessed it. Really, could even a doormat Congress be expected to approve \u201cCollect Everything?\u201d<\/p>\n Inman\u2019s Reversal<\/b><\/p>\n By happenstance, I found myself with a front-row seat watching how honor among these thieves played out, i.e., how the Washington Establishment generals and admirals cover for one other.<\/p>\n Admiral Inman\u2019s 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\u2019s Amy Goodman showed video clips of Inman\u2019s undisguised criticism of Gen. Hayden on the morning of May 17, 2006, less than a week before the Senate Intelligence Committee took up Hayden\u2019s nomination to be CIA director. Something needed to be done \u2026 and quickly.<\/p>\n Specifically, Inman needed to be called to atone for his unspeakable sin of candor \u2013 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<\/a> two weeks earlier with then-Defense Secretary Donald Rumsfeld on Iraq.<\/p>\n 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\u2019s blog and was well aware of Inman\u2019s remarks on May 8, 2006.<\/p>\n 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. Na\u00efve me!<\/p>\n Watching the monitor I saw Admiral 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\u2019s 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.<\/p>\n A whiff of conscience showed through during Hayden\u2019s 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:<\/p>\n \u201cDid 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?\u201d<\/p>\n Instead of the simple \u201cYes\u201d that had been scripted, Hayden paused and spoke rather poignantly \u2014 and revealingly: \u201cI had to make this personal decision in early October 2001, and it was a personal decision \u2026 I could not not do this.\u201d<\/p>\n 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.<\/p>\n Knowing the Law<\/b><\/p>\n 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 \u2013 to be implemented without court warrants, without \u201cprobable cause,\u201d and without adequate consultation in Congress \u2013 could pass the smell test.<\/p>\n Hayden said he sought an oral opinion from then-NSA general counsel Robert L. Deitz, whom Hayden later brought over to CIA as a \u201ctrusted aide\u201d to CIA Director Hayden! (In the fall of 2007, Hayden launched Deitz on an investigation of the CIA\u2019s own statutory Inspector General who had made the mistake of being too diligent in investigating abuses like torture.)<\/p>\n Interestingly, Hayden did not pass the smell test for Sen. Barack Obama, D-Illinois, who took a principled stand against his nomination and voted against it the following day. In his brief but typically eloquent one-minute speech<\/a> on the Senate floor, Sen. Obama was harshly critical of both Hayden and President George W. Bush. Obama insisted that \u201cPresident Bush is not above the law; no president is above the law.\u201d His words did not ring as hollow then as they do now in retrospect.<\/p>\n To his credit, I suppose, President-elect Obama did get rid of Hayden \u2013 for cause, as I tried to explain in \u201cWhat\u2019s CIA Director Hayden Hidin\u2019<\/a>\u201d on Jan. 15, 2009. I ended that article with the following expression of good riddance: \u201cThe 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.\u201d<\/p>\n 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.<\/i><\/p>\n