CNN Helps Mike Hayden Uncork A Fine Whine

Michael Hayden is at it again. This time it is CNN that has donated the bandwidth to his continued petty whining about the release of the OLC Torture Memos. After acknowledging that the matter is over and now simply a matter of history, Hayden, in a “Special to CNN Comment” bearing today’s date, says:

I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the “first draft” of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.

And this footnote has to do with President Obama’s decision in April to release opinions drafted by the Department of Justice that detailed the CIA’s interrogation program for high-value al Qaeda detainees.

Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity.

This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless “the judge was going to make me do it” argument.

As I said, this is all now a footnote, and Hellerstein’s September decision was barely remarked in the public discourse.

But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.

“Make no mistake”, just as the decision to release the torture Memos is old news, so is Hayden’s objection. He made it abundantly clear, on many records, before, during and after the Memos’ release. Why did CNN decide that giving Hayden a prime “special” opportunity to continue the same relentless petulance was a good idea? Where is the CNN “Special Comment” on the decision of the British High Court that heroically proclaimed:

It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…

Where was the CNN “Special Comment” on US Federal Judge Jeffrey White who trumpeted the public’s “right to know” what their government has done in their name in a very similar FOIA case?

Why is it that CNN has special space available for Michael Hayden, a man centrally involved in the alleged Bush war criminal misconduct, to rehash his same old self serving petty whining from months ago, but not for the current news that actually supports the rule of law in a democracy?

59 replies
  1. Jim White says:

    Dear General Hayden,


    You are now irrelevant, except for the footnote in history that will indicate the length of prison term you will serve for taking part in the illegal torture of prisoners. I’m stocking up on popcorn for your trial.


  2. tjbs says:

    Over a hundred dead from Questioning?
    Tracheotomy kits for Questioning SUSPECTS?
    Crucifixion, for Christ sake?

    Mikey, this shit hasn’t been tried in an International War Crimes Tribunal YET but when it has and the true American operating procedures are exposed, the written history ain’t going to look like any fairy tail you’ve dreamed up for yourself to believe.
    Did he step ever over dead bodies on his way to dinner?

    It will be over over my dead body this isn’t talked about.
    I’ve attended over 250/ 300 vigils at the same corner since the wars began and was asked not to return last week after I wore a Orange Jumpsuit and a bloody hood ( i Left off the dog leach) and bearing a sign declaring ” Torture is wrong, Over a 100 died during questioning and up to 80% were innocent.
    Shook those American Quakers to their boots to think our boys would do that.

    You’ve got a Great cover-up going , good luck with that Pal!

  3. Peterr says:

    I’m more curious as to why Hayden sought the space to make a special comment now, instead of letting “old news” be old, especially (as you note) since he’s made his views abundantly clear in the past.

    I sense a bit of fear in Hayden’s comments. Not fear for the CIA or future interrogators, or fear for the nation, but fear for his own reputation and even a bit of fear of being hauled into court.

    This sounds for all the world like the kind of plea we often hear from an indicted person, standing on the courthouse steps, loudly proclaiming that their actions were not just legal but justified and to be applauded, and promising that they will be vindicated at trial. The only difference is that Hayden hasn’t been indicted.

    Dare I add “yet”?

    He’s trying to make it as difficult as possible for anyone to haul him in front of a grand jury or congressional committee without it looking like “partisan politics” and not legal accountability for his actions.

  4. BillE says:

    Looks like owning CNN via the TSP does have its benefits. Even if it does come out over in England it will probably get the same coverage here as the downing street memo thingy.

    It is kind of fun seeing them scurry with the threat of sunlight showing on their behavior. All their nice Orwellian word play right out the window. Like how come we call Xe contractors and not mercenaries?

    I still won’t believe it until I see it. BO’s state department might still stop it under English appeal.


  5. BillE says:

    ‘I guess you have to head up massive NSA felony programs and have a few torture/child abuse blacksites at your fingertips to be able to make a President perform to order.’

    or a news organization.

    • Mary says:

      Sorry for the comment screw up, where my comment that had been at 5 is now at 7. I had some edit problems and apparently the Universe doesn’t want me to change the balance of Karma by suddenly deciding to fix typos.

  6. Mary says:

    I sure as hell hope the “story” of US torture hasn’t just “moved on.”

    Still, I think CNN has some typos. I’m not sure which one, but I think that this: “Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity” should have been either

    Make no mistake. [John Yoo and Alberto Gonzales told me] the decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity [and when have they ever been wrong].”


    Make no mistake. The [decision to torture Maher Arar and Khalid El Masri and the people mentioned in the 2002 CIA memo as being innocents held at GITMO – that] decision was a political one, not a legal one — a question of choice rather than necessity. [Like disappearing KSMs chldren and freezing that 20 yo kid in Afghanistan to death – politics, not legalities]”

    So suddenly Hayden is concerned with what the legalities of a decision are – after you’re done burying the bodies and surveying the incalculable destruction wrought on nations by your political ployeuerism, maybe AFTER that isn’t nearly the best time to share your views on legalities vs. politics with the world. Maybe after you’ve tarnished your uniform beyond resurrection isn’t the best timing.

    Intersting, that he is so anxious to display his outright contempt for the courts, that he’d use CNN as a platform to mock the concept that a judge could “make” a President do anything.

    I guess you have to head up massive NSA felony programs and have a few torture/child abuse blacksites at your fingertips to be able to make a President perform to order.

    • Hmmm says:

      Yes. Struck me as a quasi-Rovian move to de-fang the use of the term “political” in some unpreventable next chapter in The Big Book Of GWOT Detainee Torture that Mikey & Friends think is coming soon from Barry & Friends.

      Insert obligatory hopeful reference regarding popcorn here.

  7. Mary says:

    LOL. That one was quite a *character* too, in the sense my Grandmother used it (um, she’s a, well, she’s a *character.*)

    Peterr, on the timing front I can think of quite a few issues out there tha might have spurred him along in general – – the Italian case is going to be getting verdict-y soon, the British High Court ruling is out there now, the so-called torture referral to Dunham, the Arar case on appeal, the pictures case at the Sup Ct with Kagan trying to hold off the courts pending Congressional crapola (and if 40 Senators can hold up healthcare – why can’t 40 do the same for the picture legislation? Oh, right, Reid). The GITMO cases that are revealing more and more the fact patterns on innocence and complicity in deliberate, knowing, torture and use of depravity against innocents for experimentation and recreation, etc.

    What I think is more interesting than even the timing, though, is that bmaz is being kind to call it a whine. It is an outright call for the CIA to rise up “against” Obama. You can’t view it as much else – and from a guy who wore the uniform so long. What a very creepy creepy piece.

    He’s telling the CIA not to be deluded into thinking a President ever thinks he might have to do what a Judge says – he’s telling them that it was a CIA “victory” for Hellerstein to roll over and spread supine; and he’s telling them that the President is lying to them and they shouldn’t take it. It’s just about as creepy a thing as I’ve ever seen ex-military, and certainly ex-Intel, pop out there.

    Of course there was no outcry from Hayden over bombing babies and disappearing children and killing off or torturing into insanity innocent men – or doing all the foregoing in support of a political gameplan to go to war in Iraq (as opposed to a legal gameplan to bring murders to justice). Bury the Dostum container cars and go on.

    But turn over to the Nation a legal opinion written by the Nation’s Office of Legal Counsel, a department withing the Nation’s Department of Justice – and that’s a crime. Bush and Hayden et al sending Abu Ghraib soldiers to prison as “rogues” – that’s commendable politics the CIA should rally behind. Obamaco releasing a memo – that’s bad politics that the CIA analysts should “see through” and do something about.

    What a piece of work. He really is the Dark Side’s Elmer Fudd.

    • BillE says:

      ‘(and if 40 Senators can hold up healthcare – why can’t 40 do the same for the picture legislation? Oh, right, Reid)’

      why can’t one of our heroic civil liberties lions like Feingold or Franken hold this crap up by pulling a Coburn?

      Oh, that’s right even Franken’s been rolled. With Leahy screwing around on the patriot act stuff, Axelrod, Obama, geez I thought better of dead heads.

    • Peterr says:

      Right — it’s definitely not a fine whine. I think bmaz must have won a case today, and he’s feeling magnanimous in victory.

      “He really is the Dark Side’s Elmer Fudd.”

      Where’s twolf? There’s a photoshop waiting to happen.

  8. Mary says:

    Even today there are activities that are universally “known” but are still not officially confirmed by the U.S. government, and no one takes issue with the wisdom of continuing the policy of official silence.

    Pictures come to mind.

    And sending US soldiers to jail rather than reveal government policy and policymakers – no one, not even all the members of Congress who were “in on” the torture briefings, had any problem with that.

    And oh yeah, holding back the CIA memo on the innocent people at GITMO – and holding the innocent people who have been driven insane by torture at GITMO – isn’t it all great and tingly and patriotic-y, how No One Takes Issue.

    Of course, “no one” may be a phrase that means something slightly different in real dictionaries v. the Wainstein dictionary.

  9. tjbs says:

    The cost of Politicians went up considerably with Paul Welstone standard of accident.
    Not only did Paul lose his life opposed to this neo-CON juggernaut, his wife and children paid also along with the other usual collateral damage from these kinds of accidents.
    Not only his life but his future generations, I wonder if I sat in the well of the congressional chambers if my mind wouldn’t wander back to Paul (R.I.P.)

    • bmaz says:

      There has NEVER been one shred of credible evidence to indicate that the Wellstone crash was anything other than pilot error or accident. People that serve it up as some kind of warning or evidence of political mischief do the public a disservice. The Wellsone incident is proof only that the alternative to a plane landing is a plane crashing.

      • tjbs says:

        Hale Boggs AL against the pipeline, the Guy Running against Ashcroft, Kennedy Jr,Wellstone voting against the war Just seems to me mighty scary odds compared to the general population that of being a opposition politician. Probably a coincidence though.

        • Peterr says:

          The plane accidents involving ordinary folks don’t make the papers, but there are plenty of them as well.

          Politicians in tight races are always anxious to make it to one more stop, one more rally, one more event. When you have bad weather in late October or early November, that kind of thinking on the part of a candidate (“I’ve *got* to get to X”) or a gung-ho pilot/supporter (“I can fly through anything”) is a recipe for an accident.

          • bobschacht says:

            In crime investigations, when searching for evidence, you look for (a) a motive, and (b) the means. Some evidence falls in your lap. Other evidence doesn’t, but may require diligent search.

            Did Rove and/or Cheney have the motive to whack Wellstone? I’d say the answer was yes, but that’s just a guess based on politics. We have perhaps a general motive, but not a specific motive: i.e., I do not know of any statements Cheney might have made about Wellstone to anyone, in public or in private, that indicated that Wellstone had Cheney’s attention. I also lack any knowledge of specific actions Wellstone was making, or about to make, that had a direct bearing on any of Cheney’s projects. Can a specific motive be identified?

            Did they have the means? Cheney was pulling black bag jobs left and right, especially using DOD special ops personnel. Dick Cheney was his name, Dark Side was his game. He probably had more access to the “means” than Rove did, for this kind of job. And if sufficiently motivated, I wouldn’t put it past him.

            Did he have a hand in it? Who knows? But, lacking any better evidence, I think one would have to rate the probability relatively low– whether more than 5%, or less, I don’t know. I’d let the odds hover around 5%, which is about where my threshold of concern would be activated.

            Bob in AZ

  10. Teddy Partridge says:

    “Make no mistake” is pretty rich coming from a guy who wouldn’t use the NSA’s powers to stop 911.

    Mike Hayden should be in prison. It’s that simple.

  11. bobschacht says:

    Mike Hayden is one of those amoral(!) apparatchiks for whom morality is defined by what is legal, and legal is defined by… well, whatever men like Yoo and Bradbury say it is. In a creepy way, he reminds me of some of the Nazi apparatchiks at Nuremberg, or the lady in The Reader.

    It just goes to show that moral terpitude and an otherwise sharp and agile mind can inhabit the same person. In a way, the Mike Haydens of the world are more dangerous than the Dick Cheneys. The Cheneys of this world need willing servants like Mike Hayden.

    Bob in AZ

  12. MadDog says:

    Hey Mikey Hayden, don’t wait too long because reservations are now being taken for your lodging pleasure at one of our finest Federal institutions.

    No need to pack. Stylish orange jumpsuits will be provided to all.

    Enjoy the unusual cuisine!

    Make friends with people you’ve never imagined.

    Your hosts will make every effort to ensure a secure and private experience you’ll never forget!

  13. MadDog says:

    Purely OT, but did anyone catch this from the DOJ’s National Security Division:

    Maryland Scientist Charged with Attempted Espionage

    A Maryland scientist who once worked in varying capacities for the Department of Energy, the Department of Defense and the National Aeronautics and Space Administration has been arrested for attempted espionage, David Kris, Assistant Attorney General for National Security, Channing D. Phillips, Acting U.S. Attorney for the District of Columbia, and Joseph Persichini, Jr., Assistant Director for the FBI’s Washington Field Office, announced today.

    A criminal complaint unsealed today in the District of Columbia charges Stewart David Nozette, 52, of Chevy Chase, Maryland, with attempted espionage for knowingly and willfully attempting to communicate, deliver, and transmit classified information relating to the national defense of the United States to an individual that Nozette believed to be an Israeli intelligence officer. The complaint does not allege that the government of Israel or anyone acting on its behalf committed any offense under U.S. laws in this case…

    There’s much more, so take a read.

  14. Mary says:

    I’m kinda wondering, is Hayden’s CNN piece cyber behaviour that is “normative, acceptable, or favorable” or, otoh, would you have to wonder if he is engaging in “deviant cyber-behaviors with the intention of causing harm to others including “… [political] sabotage”?

    Inquiring spooks. At least we know Hayden never gets involved with, “providing false information within computer-mediated communications about oneself or others”

  15. emptywheel says:

    Two points on this–I’ll eventually do something more detailed if I get time.

    First, Hayden’s argument equating the recent Hellerstein decision with the earlier one is pretty humorous, given that a key part of Panetta’s argument in this case is that there’s a difference between the torture techniques discussed in practice and the torture techniques as implemented.

    Note, too, Hayden’s gratuitous description of the torturees as uncooperative.

  16. earlofhuntingdon says:

    And where is the coverage that America’s Congresscritters, led by Holy Joe, are rampaging to protect their government from its own Supreme Court’s decision that it was legally obligated to disclose pictures that depicted that government’s torture of prisoners.

    Torture would be wrong, even if the US had evaluated whether those prisoners were guilty of a serious crime and had proven that in open court. What the Bush regime did, and what the Obama regime is trying to hide, is break with 200 years of precedent and make torture the official, preferred policy of the United States Government.

    Congress enacting a law that says Obama can ignore a S.Ct. decision to disclose evidence of the past administration’s torture merely demonstrates that in Washington, bidets come in all shapes and sizes.

    • bmaz says:

      I hate it, and it is wrong, but Congress has the power to do it. FOIA is a creature of statute and the powers and rights of the public under FOIA are statutory; therefore Congress can limit them.

      • Hmmm says:

        Because I am ignorant, may I ask someone (not necessarily you, Bmaz) to explain for me how what Joeberman is attempting to do here does not violate the US Constitution?:

        I.9.3 No bill of attainder or ex post facto Law shall be passed.

        I mean that the FOIA requests have already been lodged and if the law is being changed, the only reason there is an opportunity to do that is because the USG created a time delay by fighting the FOIA request. It seems that under the law at the time the FOIA was lodged there was little or no valid basis in law not to comply. It seems to me (in the depths of my ignorance as I admit I am) that this should be exactly the kind of after-the-fact cheating with the rules by the government that the ex post facto clause was intended to prevent.

        • bmaz says:

          A bill of attainder requires a penalty aspect or effective penalty aspect, and ex post facto generally only applies to criminal provisions; neither are applicable here.

          • JasonLeopold says:

            Interesting. Nadler said Congress, in defunding ACORN, violated (is that the right word?) bill of attainder.

            • bmaz says:

              My guess is that Nadler is operating off of this little document from CRS. I am no expert about bills of attainder other than the term is bandied about way more than it is really applicable. Remember the MOTU bankster bonus question on whether or not legislation against their bonuses was a bill of attainder? I actually half tried making out that argument back then and pretty much got convinced by some others – can’t remember who – that it would not really fly.

              The leading case on bills of attainder is US v. Brown; here is a link. The CRS analysis looks spot on from what I can tell as far as where the points are. Tough call as to whether a court would find the ACORN law violative. It is a craptastic law though; very sloppily drawn. No way they really want it phrased the way it is apparently structured. If I had to bet, I would say judicial scrutiny would find that it passed Constitutional muster, at least as to the bill of attainder prohibition anyway. So I am not sure I buy Nadler’s argument.

          • Hmmm says:

            Thanks much. I’ll have to go educate myself on why ex post facto is not considered relevant to civil law.

      • earlofhuntingdon says:

        I agree. The most powerful tool in anyone’s box is restraint. Why are they doing it? To protect their own complicity, Bush, Obama’s (because he still employs “a few bad apples”), or to keep the Democrats’ purported “agenda” on track (whatever the hell that is)?

  17. Leen says:

    a “footnote” the rule of law or the lack of the rule of law referred to as a “footnote”

    They are losing us…they are losing the peasants no one believes anymore that the rule of law will apply to the people who rewrote the torture laws, tortured or those who started an unnecessary and illegal war. No one believes anymore. The blood in the Iraqi streets, prisons and secret sites is just too deep.

    Is Hayden blind is he unable to smell how this nation is rotting from the inside out and he happens to be one of the butchers of the rule of law

    Torture by Max Ginsburg
    Maybe we should buy one of Ginsburg’s art pieces and send it to Hayden special delivery

  18. Leen says:

    Hayden should stand up in Baghdad and tell the folks over there to put this all behind them
    Pictures of Abu Gharib

    Can you imagine someone saying this to Holocaust survivors “just move on, it’s history, turn the page, move on all ready”

    It’s as if some of these guys are members of the secret police of the gestapo. “Move on now..get over it”

  19. JasonLeopold says:

    Hayden cherry picked Obama’s statement to CIA employees and quotes the president as saying he released:

    “the Justice Department Office of Legal Council (OLC) memos as a consequence of a court case that was pending and to which it was very difficult for us to mount an effective legal defense. …”

    Obama actually said:

    As I made clear, in releasing the OLC memos as a consequence of a court case that was pending and to which it was very difficult for us to mount an effective legal defense, I acted primarily because of the exceptional circumstances that surrounded these memos, particularly the fact that so much of the information was public — had been publicly acknowledged. The covert nature of the information had been compromised.

    Maybe I am just being picky.

    • JasonLeopold says:

      I suppose Hayden did paraphrase the rest of Obama’s quote to some degree in the previous paragraph

  20. Hmmm says:

    A quick look around seems to indicate there’s significant disagreement from observers about the application of ex post facto to civil cases, but also a lot of consensus that from a practical POV it’s an awfully tough row to hoe.

    One source thinks any ex post facto change to rules of evidence would violate the Constitution. Hm. Wonder whether making otherwise FOIA-obtainable evidence unavailable by changing the FOIA criteria in this way and for this purpose could be argued to fall into that bucket…

    Cutting the other way (from the same source): “A large ‘exception’ to the ex post facto prohibition can be found in administrative law, as federal agencies may apply their rules retroactively if Congress has authorized them to do so. “

    • bmaz says:

      Those people that think there is some grand dispute are pointy headed nimrods sitting in a college law library somewhere. In real honest to god courts, you get your assed laughed at with that. As to rules of evidence, that has nothing whatsoever to do with FOIA. Rules of evidence are for evidentiary hearings and proceedings and trials. If a rule of evidence was to be changed during a hearing or trial, I could see an analogous argument succeeding; but it may or may not technically be an ex post facto argument as contemplated by the Constitution.

        • bmaz says:

          Heh, join the club. I tried whipping it out many years ago in a civil forfeiture case that was attendant to a cocaine conspiracy case I represented a client on. That kind of forfeiture is really almost quasi-criminal in the way it is structured and the way it is initiated. Couldn’t even get ex post facto applied to that situation.

          • Hmmm says:

            OT — I agree completely about forfeiture being way, way, way unconstitutional:

            No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

            Any questions, boys & girls?

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