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?

Poppy Bush Not Joining Other DCIs Opposing Investigation of W Bush’s Torture

There are a number of fascinating details in this letter from seven former living CIA Directors opposing DOJ’s torture investigation–starting with the fact that Poppy is one of just two three living CIA heads who didn’t sign (the others are Carter’s Stansfield Turner and close Poppy ally Robert Gates who, as Secretary of Defense, also has to weigh how our torture puts service men and women at risk). (h/t Ambinder)

Michael Hayden
Porter Goss
George Tenet
John Deutch
R. James Woolsey
William Webster
James R. Schlesinger

But that’s not all.

Note that these men are asking the President to intervene in a DOJ investigation.

We respectfully urge you to exercise your authority to reverse Attorney General Holder’s August 24 decision to re-open the criminal investigation of CIA interrogations that took place following the attacks of September 11.

They’re not asking Obama to pardon those CIA officers under investigation, which would be a proper request of the President; they’re asking Obama to spike an investigation the Attorney General has deemed necessary. They are, in short, asking for legal process to be set aside for, ultimately, a political decision.

And they’re making that request by appealing to an investigation conducted under a prior Attorney General–Alberto Gonzales–still (as far as we know) under investigation for politicizing DOJ.

The post-September 11 interrogations for which the Attorney General is opening an inquiry were investigated four years ago by career prosecutors.

They’re further making that request by appealing to a US Attorney–Paul McNulty–also involved in that politicization.

Career prosecutors under the supervision of the US Attorney for the Eastern District of Virginia determined that one prosecution (of a CIA contractor) was warranted.

So they pile up political interference on top of political interference. Now, these former DCIs repeat the term "career prosecutor" four times. And it may well be the case that–unlike some other cases under Alberto Gonzales–there was no interference here.  But they ignore one of the precipitating causes for the investigation being reopened: The Office of Public Responsibility’s finding that there was serious misconduct involved with the referrals in these cases (the DCIs say there were fewer than 20).

It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made — a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation. 

Read more

Which 2003 Document Was Hayden Talking About?

I’d like to return to this post, in which I tried to figure out which 2003 OLC opinion approved–according to Michael Hayden–waterboarding.

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

We may well have found our answer in the IG Report. As I’ve been chronicling, John Yoo helped the Counterterrorism Center develop a "Legal Principles" document in 2003 that included waterboarding among permissible techniques. Scott Muller would claim Yoo’s involvement in the process constituted DOJ agreement with the principles espoused in the document. But in 2004, Jack Goldsmith asserted that the Legal Principles document, "did not and do not represent an opinion or a statement of the views" OLC. 

So it appears likely that Michael Hayden claimed that OLC had written an opinion on waterboarding that OLC claims does not constitute an opinion. If so, then the squabble between OLC and CIA over that document remains active (or at least did, as of earlier this year, when Hayden still headed the CIA).

But there’s another part of the earlier post I’d like to return to: a 2003 "secret memo" from the White House "explicitly endorsing" CIA’s use of torture.

Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

Now that we know of the "Legal Principles" document, I don’t think this is what Hayden referred to, since there was also a 2004 document and Hayden didn’t mention a 2004 OLC endorsement of torture (which is all the more remarkable, given that Daniel Levin did authorize the use of waterboarding in an August 2004 letter).

Read more

More CIA Lies about Torture Briefings

Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:

Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.

The Time article focuses closely on McCain’s objection to this representation:

A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.

Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:

In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.

Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more

Questions and Answers about Beginning of Domestic Spying Program

The other day I noted that the Bush Administration seemed to have been using the 15-day exemption included in FISA to conduct domestic surveillance before the formal start date of the program.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF. 

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1. 

Meaning, the Bush Administration was already using those expanded authorities–but they were doing so by exploiting the 15-day exemption written into FISA!

Since then, I’ve tried to confirm that assertion, but the picture has only gotten muddier. There are two sets of conflicting data surrounding:

  • Program start date
  • OLC memo dates

James Bamford’s Shadow Factory and Eric Lichtblau’s reporting have some answers, but answers that raise a new set of questions. So here are some answers and more questions about the beginning of the domestic spying program.

Program Start Date

The IG Report explains the beginning of what it calls the Presidential Surveillance Program this way:

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP.

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.

So, in the days immediately after 9/11, Hayden used "existing authorities" to gather intelligence information. Then Tenet asked Hayden what more he could do, and he said he needed more authorities. "Shortly thereafter,"  Bush granted authorities covering a range of activities. Read more

FISA’s 15-Day Exemption

Update, 7/16: See this post for a modification of this one.

I’m updating my warrantless wiretapping timeline and noticed something important (I think).

The IG Report released today notes that the 15-day exemption in FISA proves that Congress always intended FISA to restrict the Executive Branch’s authority, even in times of war.

Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 USC 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance.(12)

But now look at the timeline (this is evolving quickly so it may change by the time you look at it).

September 12, 2001: AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

September 18, 2001: Bush signs AUMF.

September 25, 2001: OLC provides memo to David Kris on “a purpose” language for FISA.

October 1, 2001: Hayden briefs HPSCI.

October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.

October 3, 2001: 15-day exception in FISA after declaration of war expires.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.

October 6, 2001: Program begins. [my emphasis]

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, Read more

Hayden Throwing Mudd at Bloggers

Jeff Stein chronicles former CIA columnist Stephen Lee’s woes with the CIA’s pre-publication process.

Stephen Lee, a former CIA operations manager who blogs for The Washington Examiner, suspects the spy agency’s censors are trying to sabotage his new career.

Lee recently launched the critical "Examiner Spy" column for the Examiner newspaper chain, which has a D.C. daily edition.  He also pens a biting cartoon for his own Web site,, under the name Frank Naif."

I believe I am being subjected to a campaign of low-level harrassment," Lee said Wednesday.

Most interesting, though, Stein describes the problems Lee had getting a piece blaming Michael Hayden–rather than the bloggers that Hayden himself blamed–for the withdrawal of Phil Mudd’s nomination to the top DHS intelligence post.

The first was a critical piece on former CIA Director Michael V. Hayden, acidly headlined, "CIA ex-chief Hayden blames bloggers for damage caused by his policies."

Lee says he submitted the piece for clearance on Friday, June 19. The weekend passed. Finally, at mid-morning on Tuesday, June 23, he learned the PRB had "lost" it.

He resubmitted the piece, and around 4 p.m. Tuesday, he got an answer: It was cleared.

 Here’s some of what the CIA tried to "lose."

Ex CIA chief Michael Hayden’s opinion piece in the Washington Post on Friday, 19 June 2009, decried how “today’s atmosphere” of mistrust in Washington caused former senior CIA analyst Phil Mudd to withdraw his nomination as Undersecretary of Homeland Security for Intelligence. 

Predictably, Hayden did not take responsibility for his own role in “today’s atmosphere”—in particular Hayden’s own policies of excessive secrecy and shirking command responsibility for specific programs and policy on his watch. 

Hayden nonetheless excoriated “the blogosphere” and chicken-hearted congressional aides for hyping up Mudd’s association with discredited torture and detention practices. 


I count myself as one of those intelligence officers who has reason for pause about future service inside US intelligence. But it’s not cheeto-eating bloggers or opportunistic congressional staffers that I fear.  


Mudd was a CIA analyst, and probably was aware of the torture and detention programs.  But he was almost certainly not instrumentally involved in managing or participating in actual torture or extra-judicial detentions. Unfortunately, journalists, bloggers, congressional staffers, and ordinary Americans (all belittled as “internal threats” by Hayden in his Post essay) are not able to precisely discern Mudd’s involvement, if any, with that secret black box of terrorist detention and torture. Even though Americans are entitled to have a say in what CIA is doing in the Republic’s name, Hayden and other CIA directors’ disdain for transparency kept Mudd’s record out of view.

Gosh, are you telling me the former top spook is hiding beind attacks on us cheeto-eating Yirgacheffe-sipping bloggers? Read more

John Rizzo’s Nomination and the Bybee Two Memo

On August 23, 2006, Jello Jay Rockefeller wrote to Michael Hayden requesting a number of documents in relation to John Rizzo’s nomination to be CIA’s General Counsel. In addition to a list of all OLC memos and access for the full committee to the 2004 CIA IG report on torture, Rockefeller asked for materials relating to the Bybee Two memo listing all the torture techniques CIA could use. As with the IG report, Jello Jay asked that all committee members be able to read the document (starting on page 15).

[For Bybee Two] the question is not whether it should be delivered [to the Committee], for it is here, but whether all Members of the Committee and their staff assisting them in preparing for the hearing may read it. The Senate has referred the nomination to the full Committee, not to the Chairman and Vice Chairman alone. Each Member must decide how to vote. In doing that, each should be able to ask those questions that he or she deems necessary for an informed vote. The memo was requested from OLC for the CIA by the nominee and he had responsibility for implementing it. Members may therefore wish to question him about it.

And in a section asking for more information about Rizzo’s role in buying off on torture policy (and following a completely redacted paragraph), Jello Jay asked specifically about Rizzo’s role in formulating Bybee Two.

The focus of the requests described above concerns matters relating to and following the August 2002 Second Bybee Memo. There were also important decisions about U.S. legal policies related to counterterrorism, including on such matters as the application of the Geneva Conventions, that preceded the Bybee Memos, and my understanding is that the nominee had a role in that process, both within the CIA and outside of it. It will therefore be important to assess his participation in the formulation of those policies. Accordingly, in addition to documents relating directly to the Second Bybee Memo, please provide documents authored by the nominee, or prepared under his supervision, that set forth the nominee’s contribution to the development of U.S. legal policy after the September 11 attacks.

The request is important for several reasons. First, it asks to what degree Rizzo was involved in the shredding of the Geneva Conventions, particularly repeated exemptions even from the flabby support of the GC applied to other agencies. Read more

The Context of the Torture Index

I wanted to return to the torture index released to ACLU the other day to comment on what the CIA claims to have in terms of records.

First, remember what this index is. The April 21 order required CIA to turn over two things. 

  • Records "relating to the content" of the torture tapes "from the entire period of the tapes that were destroyed"
  • "Documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction"

The second bullet (referred to as Paragraph 4 material) is the stuff discussed in the recent John Durham squabble. The first bullet (referred to as Paragraph 3 material) is the stuff we got the other daya and which I’ll discuss in this post.

The May 7 order summarizes how CIA and ACLU agreed CIA would treat those records that described the content of the torture tapes.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. With respect to the contemporaneous and derivitive records, the parties jointly propose the following: 

  • May 18, 2009: The Government will produce a list of all contemporaneous records and all derivative records. The list will, to the greatest extent permissible on the public record (i.e., the list will not include classified information or information otherwise protected by statute), identify the date, sender, recipient, type, and subject matter for each record;

So the stuff we got the other day is one of three things:

  • Documentation made contemporaneously with interrogations that were videotaped
  • Documentation made contemporaneously to the viewing of the videotapes
  • Derivative records that summarize the contents of the contemporaneous record

Read more

The Bush Administration Did Not Give Legally-Required Prior Notification to Congress

We know, because Michael Hayden confirmed it the other day, that the torture program started as a covert operation (at 1:45).

By law, covert operations must be supported by a Presidential Finding (or Memorandum of Notification, which is reportedly what was used here) and require prior notification to Congress.

Congressional Notification

  •  The Requirement to Notify Congress

Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.

  •  Contents of Notification

In all cases, notification to Congress as provided herein shall include a copy of the Finding or associated MON, if any, as signed by the President, and the statement described in section II.A.3 hereof.

  •  Prior Notification

Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the "Intelligence Committees"), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

  •  Extraordinary Circumstances

If the President determines that it is necessary, in order to meet rare, extraordinary circumstances, to delay notification until after the initiation of a special activity, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall delay notification consistent with section 501(b) at the direction of the President. Read more