But Who Has JSOC’s Back?

Michael Hayden has another tired whine at CNN about Obama’s treatment of the torture program. The entire logic of the piece is predictably silly. It goes something like this:

  1. ACLU and CCR are suing the government for targeting American citizen Anwar al-Awlaki with no due process.
  2. According to Hayden, the targeting of Awlaki was “Authorized by the president, approved as legal, briefed to Congress.”
  3. According to unnamed legal scholars, the suit has little chance of success.
  4. But Obama’s DOJ released OLC memos on the torture program in response to an ACLU suit and investigated the torture of detainees that exceeded DOJ guidelines and therefore was illegal.
  5. This makes Hayden mad because it constitutes “exposing a previously authorized program for apparent political purposes.”
  6. Oh, and by the way, the UN rapporteur for extrajudicial killings also has a problem with targeted killings (and not just those of US citizens), though I’m not entirely sure what Hayden thinks Obama should do about that.

I guess this piece is supposed to be a warning to the White House–which has already assured CIA that it won’t be prosecuted for breaking the law on Obama’s orders–that it needs to make triple sure that none of those with the legal means to do so hold the CIA responsible for the illegal things it is doing. The whole thing would just make more sense if Hayden hadn’t personalized it so much (because, after all, he probably ought to be more concerned about a future President trying to distinguish herself from Obama’s abysmal record in this area). But I get it–Hayden lost some arguments with the Obama Administration and so this whole issue is very very personal.

And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain? Or maybe, given the contortions that Obama’s DOJ is going through in contemplation of litigating the ACLU/CCR suit, Hayden’s confidence that the suit won’t succeed is merely bravado?

But the other amusing thing about this screed is its focus on the CIA. Hayden treats this as danger experienced primarily by the CIA.

The CIA is asked to do things no one else is asked — or even allowed — to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.That belief was shattered by the Obama administration’s actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

But what about JSOC?

After all, Awlaki has been on JSOC’s kill list for longer than he has been on CIA’s. According to reporting, JSOC is as involved in the targeted killing program as CIA (as they were in the torture program). Why isn’t retired General Hayden worried about those killers?

Granted, there is a distinction. When civilians at the CIA target people for assassination, particularly those who pose no imminent threat, the claim that the killing is legal under the law of war is much weaker.

But for some reason, JSOC doesn’t have the need to trot out spokesmen to defend itself every third month, but CIA does.

  1. eCAHNomics says:

    And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear?

    Just luv those rhetorical Qs.

  2. klynn says:

    It is amazing how we use the “legal under the law of war” but manage to fail to extend those legalities to the many we hold as prisoners. Excuse me, as detainees.

    One problem with that detainee status, to detain someone infers to keep in temporary custody or temporary confinement.

    And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain?

    See EW, I think Hayden takes his clues from Bush’s handiwork. To be detained in this war, no longer means to be held temporarily. So, yes I think he does think Presidents have unlimited ability to make laws disappear.

  3. Nathan Aschbacher says:

    Here’s the piece I don’t understand. Since when did the DoJ, or the OLC within it, become the nation’s legislature?

    That’s one of the more corrosive issues in all this. Hayden proclaiming that it was cleared with the OLC/DoJ, and then Congress was “briefed” about it, doesn’t make it legal. Sure it makes it tacitly accepted by the institutions that are supposed to be vigorously pursuing the law, but that doesn’t make it legal, it makes it obvious that those institutions are wholly derelict in their duties.

    • emptywheel says:

      Right. Everyone involved in our national security infrastructure seems to have signed an oath to protect and defend two thirds of our Constitution, just the Article I and Article II parts.

      • klynn says:

        Actually, that point would make a great in-depth post.

        (I know you have pretty much done that a number of times. It cannot be pointed out enough.)

    • Mary says:

      More so than the legislature even, when did they become the “secret” supreme court?

      I also wish the media would quit playing stenographer on “Congress was briefed” The fact that up to 8 or so (and often less) members of Congress got undocumented “briefings” of the bits and pieces the CIA selects is not a briefing to Congress. A briefing to Congress is all of Congress having access to the info. I’m wondering about the Constitutionality of something like the NSA gang of 8 concept, even if it had been followed. You are excluding the reps of at least 42 states with that selective briefing.

      I don’t remember seeing that concept anywhere in the Constitution and can’t believe any state/commonwealth would have gone along with it if it had been. The President can pick 8 states and brief one rep from each and this shall constitute a breifing “to Congress” and representatives of other states shall not be allowed access to such information or the ability to engage in speech and debate on such info – I don’t think that flies if it is subjected to scrutiny.

        • Jeff Kaye says:

          Yes, those “briefings” were really spin sessions. The fight for larger full briefings of at least the entire intel committees goes back 35 years now, since it was the recommendation of the Pike Committee.

      • DWBartoo says:

        You “… wish the media would quit playing …” Mary?

        The media seem to have every intent of passing on the Executive, the Judicial, and the Congressional loony tunes as well as goading the tea party loons (no disrespect to actual loons intended)to new heights or depths of bombastic threat and lurid ignorance.

        There does not appear any other “game” which may catch the fancy of current day “media” (Which is why the “media” wishes that “other voices” would hush or be hushed).

        Apparently, the media are in this “mode” for the “thrill” of it and have not the slightest interest in any of that quaint “responsibility” of the “fourth estate” silliness. The current “media” are playing in such fashion to make a “killing”, economically before shuffling off into well-deserved obscurity.

        A little bit like certain Democratic senators … the senators will be lobbying, lucratively, in their new-found obscurity, which is just the way they like it, of course.

        Just as there appears to be a “backbone” crisis afflicting each of the branches of the sickly three-branched potted-plant which is American “democracy” today, an un-curious spinelessness has infected the media.

        A simple question of picking up bugs and germs from the crowd the media choose to hang out with, no doubt. Some, of the media, may come to “wonder” about that hanging-out with “business”, but, for now, the media is sanguine that they are doing the “right” thing, since none of the “three-branch party” seem worried or jumpy. Hell, even Congress, which, really, is holding the bag, hasn’t noticed the stench yet …

        Of course the way things just keep leaking out, or turning up … kind of a drip … drip … drip revelation, it all becomes a question of timing.

        Oh yes. And Money, Big Money … and Power, the really biggest and bestest… Power.

        And, if the people believe, really believe in secrets, so secret that the world-as-we-know-it would end, instantly, were the secret revealed, why today’s “media” can help write tomorrow’s Official Sunstein History of today.

        (As EW has pointed out, recently, some journalists have already figured out the way to use the lobby door …)


  4. godistwaddle says:

    when the torturers and the war criminals (including Bush and Obama) get sentenced, I’ll believe I have to obey laws I happen to find inconvenient.

    • ekunin says:

      You won’t have to obey laws you disagree with for some time, maybe never. What’s the first law you are not going to obey?

      Judges aren’t stupid. They know which way the wind blows. When it blows hard enough, justice never triumphs

  5. willaimbennet says:

    Why weren’t Whitey Bulger or Osama Bin Boogyman ever “caught?” It just might have something to do with the tales they would tell on the stand. That’s a lot of wood up a lot of asses.

    Now imagine what a pussy like Bybee or Yoo what give up for a reduced sentence and you really are threatening “the american way of life,” such as it is.

  6. Mason says:

    And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear?

    Hayden also believes that presidents “really do have unlimited ability to make” people disappear.

    Hayden is yet another authoritarian liberty-hating asshole who believes due process is a sniper with a rifle. He can’t stand not knowing everybody’s business and for that alone he deserves to spend the rest of his life in prison.

    This country would be a far better place without idiots like him directing traffic and telling everyone within earshot what they need to do. I cannot abide people like him.

    I think he’d do well in a place like Mars.

    • Mason says:

      I don’t want to be too tough on the poor little guy. I’d be willing to suspend a life sentence on Mars on condition that Hayden be in a residential treatment program under the direct supervision of the esteemed Dr. Hannibal Lecter.

  7. NoOneYouKnow says:

    If CIA officers are so worried about prosecution, perhaps they should obey the law, instead of trusting the word of politicians that they’ll be forever indemnified for their crimes. The examples of Nazi Germany, Chile, Argentina, Romania, and various other nations come to mind: Indemnity for politically ordered crimes lasts as long as the politicians/regimes do. And I think Hayden and his co-conspirators would have trouble convincing an honest court that extrajudicial murders, kidnapping and torture of innocents etc. were necessary for national security.

    • mattcarmody says:

      They have the entire institutional memory of the agency on their side. CIA officers and assets have become very rich obeying only their own set of rules while paying lip service to the constitution. Look at how Babs Bush characterized people who would dare endanger a CIA officer by revealing his identity (Phil Agee-Inside the Company 1975) and then sat by stoically as her son’s administration trashed Valerie Plame.

      Ted Shackley and the boys in Vietnam, including Donald Gregg, Poppy’s CIA pal, got extremely wealthy off drugs and insider information and never got prosecuted for any of their crimes. CIA people accept the reality that as long as you play by their rules you can do just about anything, but start rocking the boat and you either wind up suicided or you go to prison on some trumped up charges and get financially wiped out to boot.

      They live their own reality and it’s reinforced every time they are permitted to get away, literally, with murder.

  8. Synoia says:

    Just as our police assume they can break our traffic laws all the time, even when proceeding to the local doughnut shoppe.

  9. donbacon says:

    The US doesn’t torture — it’s right there in the May 2010 National Security Strategy, which has a foreword by President Obama (extract).

    In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own. We promote these values by living them, including our commitment to the rule of law. We will strengthen international norms that protect these rights. . .and we reject the notion that lasting security and prosperity can be found by turning away from universal rights–democracy does not merely represent our better angels, it stands in opposition to aggression and injustice, and our support for universal rights is both fundamental to American leadership and a source of our strength in the world. — s/Barack Obama

    from the NSS itself:

    Deliver Swift and Sure Justice: To effectively detain, interrogate, and prosecute terrorists, we need durable legal approaches consistent with our security and our values. We adhere to several principles: we will leverage all available information and intelligence to disrupt attacks and dismantle al-Qa’ida and affiliated terrorist organizations; we will bring terrorists to justice; we will act in line with the rule of law and due process; we will submit decisions to checks and balances and accountability; and we will insist that matters of detention and secrecy are addressed in a manner consistent with our Constitution and laws. To deny violent extremists one of their most potent recruitment tools, we will close the prison at Guantanamo Bay.


    The US also doesn’t summarily execute people in other countries with Hellfire missiles — it’s right there in black and white.

  10. skdadl says:

    It’s funny that Hayden doesn’t draw the same conclusion that many of us did about the release of the OLC memos last year — that it was an isolated sane moment when Obama and Holder were actually trying to live up to their election promises, a naively principled gesture they quickly shrank from in the face of any opposition at all. Hayden thinks it was a targeted political action. Interesting.

    Gee, EW: You left out the lines about infidelity in a marriage. I thought that was a great soap-opera touch.

    This time I’m sorry there isn’t video. I love to watch Hayden huff and puff. He is just the best huffer-puffer around right now imo.

  11. donbacon says:

    from Al Jazeera:
    Obama edges to the dark side
    As consensus grows regarding the futility of US national security policy, concerns arise over Barack Obama’s strategy.
    by Mark LeVine

    As Michael Hayden, Bush’s last CIA Director, put it in a recent interview, “Obama has been as aggressive as Bush” in defending executive prerogatives and powers that have enabled and sustained the ‘war on terror.’

    But just how close to the dark side Obama has moved became evident in the last couple of weeks. . . Judge Raymond C. Fisher supported the Obama Administration’s contention that, in his words, sometimes there is a “painful conflict between human rights and national security” in which the former must be sacrificed to preserve the latter.

    But this is an utterly ludicrous concept, since a core reason for so much of the frustration, nihilistic anger, radicalisation and ultimately violence involved in Islamist terrorism and insurgencies lies precisely in the long term, structural denial of the most basic human rights by governments in the region, the lion’s share of whom continue to be supported by the United States despite their behaviour on the grounds of ‘national security’.


  12. Mary says:

    At a guess, I’d wonder if the JSOC killers a) have more cover bc nothing was briefed to Congress or required to be briefed and they can destroy evidence much more easily; or b) they are only engaging in assassinations with a very clear set of orders/directives that walk back to the WH. IIRC, the story on the CIA assassinations list indicated a much more ad hoc process where not everything was walked back to the WH and where they weren’t even always walked back to Panetta. I could be misremembering, but that’s what’s knocking in the back of my head.

    BTW – I think after the 9th cir decision, it’s worth noting how Hayden is framing his argument. I’ve noticed how he is always the one out there, trotting out whatever new approach they’ve come up with or promoting the argument of several they’ve floated that they decided was “most bestest.” I remember when they realized that the memos would be getting out and that they pretty clearly had reservations on a jury deciding torture – he began to much more aggressively settle on an push the “exigent circumstances” affirmative defense type of argument and promoted some convoluted argument about how you could have a ticking time bomb without a ticker or a time constraint or a bomb.

    Anyway, in addition to the Reynolds arguments for states secrets, the 9th Cir made huge leaps from the Totten springboard to expand state secrets for illegal and unconstitutional behavior. The Totten case was about and agreement between Totten and gov for Totten to spy for gov and his estate I think (I’d have to go back and look at the case) brought a case alleging gov hadn’t lived up to what it agreed to do for Totten. The court there dismissed the case and the Ninth has very simplistically said that the basis was bc it was a “covert contract” and so the case law is that no one can have access to the courts if they are victims of a covert contract.

    Totten had been used much more narrowly – until now – than Reynolds. But the Ninth went waga waga on Totten and pretty much opened all kinds of doors. So it doesn’t escape notice that Hayden is now coming out and saying that CIA agents involved in illegal and unconstitutional torture and assassination and childnapping etc. (as opposed to spying) are being touted as guys who “believe that they have a contract with their government”

    He’s partly out there floating/pushing the protection racket meme that CIA wants to pump up. A lot like all when these guys were out selling the argument that we had “good faith reliance” torturers. (BTW – note that while Congress and American citizens were being sold that bill of goods – Yoo and Bybee who had direct and specific knowledge that the opinions given were not reliance opinions and they sat mum while DOJ and CIA publically misrepresented the memos to Congress, something they have not been called to account for).

    So expect more pressure on Totten. And with that, yes, Hayden is saying that the President can operate outside the law.

  13. BearCountry says:

    Somehow, taking away all of our freedom in various areas of life, such as speech, habeus corpus, no torture of prisoners, facing our accusers, etc, puts the lie to “they hate us for our freedoms.” The congress wimped out long ago and the scotus is composed primarily of executive power supporting corporatists, so we now have an unchecked ruler (who, by the way, is no socialist) that is really the answer to the wingnut prayers.

  14. Jeff Kaye says:

    Who has JSOC’s back? The answer is not difficult. They’re chain of command goes directly to the JSC, SecDef and President. No one else really has any control over them, and they are used, as Seymour Hersh noted recently, as an “executive assassination wing” of the Executive Branch.

    The CIA helped set up Special Forces, and there is both interplay and intrigue between them. The CIA has been around long enough, and been caught in scandals often enough to have a shred of observation upon them. JSOC has never been so exposed in the public’s eyes, despite their operation of Copper Green, assassination squads, war atrocities, etc. They are protected and feared.

    Reminds me of the days of the SS and the Gestapo. Who was the agency really in charge of them? And how did they interact? When you throw a bunch of police and paramilitary, extrajudicial agencies in one pot, you get a lethal stew. And the chances they will accelerate police state actions upon the “homeland” population are high.

    Thanks so, so much for covering this, EW. It’s a brave and principled stance.

    • Mary says:

      3 Dems, including one deceased, are going to be on the hook (and especially one of them pretty strongly anti-war) But Jerry Lewis allowed to skate and US atty fired and nothing done about that.

  15. tjbs says:

    Torture/ Murder/ Treason

    obama had a choice after the election and chose the dark side.

    He’s where the buck stops and chose not to expose the secret Torture, Murder and Treason stuff.

    There is no tapering off of this immoral, illegal, unconstitutional slippery slope.

    The stand tall guy was elected to clean up the trash and right the country. Would he face assassination ? Probably, but so did King and Kennedy. Will history judge him as a weasel? Probably.

    eric holder got the rendition thing going during Clinton’s term so he can just pretend that the renditioned guys are having cake and ice cream to soften them up.

    Sounds like the whole country is psychopathic with-out the necessary drugs to save our sorry asses.

    The 108 dead detainees and Pat Tillman tell me the argument about accountable assassinations has been put to bed already.