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Sen. Jay Rockefeller is a sorry example of the fox co-opted by the hens. There is precious little the administration and intelligence community did not get away with under his feckless tutelage of the Senate intelligence overlook committee. For a discussion of how politicians like Rockefeller and other intelligence "overseers" work hand-in-hand with the folks they are supposed to be overseeing, see:
"Jay Rockefeller Awarded Intelligence Public Service Medal: For Telecom and Torture Immunity?"
The timid Rockefeller famously sent a hand-written note to Cheney expressing some misgivings about warrantless eavesdropping, but then misplaced the copy he had squirreled away in his safe. Cheney ridiculed him recently on TV, revealing that Rockefeller recently asked him if he could please make him another copy and send it to him.
In Dec. 2005, when the NSA program of warrantless eavesdropping hit the press, Hayden agreed to play point man with the smoke and mirrors. Small wonder that the White House later deemed him the perfect man to head the CIA.
Examination of Conscience (Short Form)
A whiff of conscience showed through during Hayden's nomination hearing, though, when he flubbed the answer to what was supposed to be a soft, fat pitch from administration loyalist, Sen. Kit Bond, R-Missouri, now vice-chair of the Senate intelligence overlook committee:
"Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the Justice Department lawyers, and White House officials all told you was legal, and that you were ordered to carry it out by the president of the United States?"
Instead of the simple "Yes" that had been scripted, Hayden paused and spoke rather poignantly—and revealingly:
"I had to make this personal decision in early October 2001, and it was a personal decision...I could not not do this."
Why should it have been such an enormous personal decision whether or not to obey a White House order? No one asked Hayden, but it requires no particular acuity to figure it out.
This was a military officer who, like the rest of us, swore to defend the Constitution of the United States against all enemies, foreign and domestic; a military man well aware that one must never 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. Did the new, post-9/11 "paradigm" – created by then-White House counsel Alberto Gonzales and Cheney's lawyer David Addington – trump the Constitution? Was not illegal electronic surveillance a key part of the second article of impeachment against President Richard Nixon, approved by a 28 to 10 bipartisan House Judiciary Committee vote less than two weeks before Nixon resigned?
No American, save perhaps Admiral Inman and Gen. Odom, knew the FISA law better than Hayden. Nonetheless, in his testimony the general conceded that he did not even require a written legal opinion from NSA lawyers as to whether the new, post-9/11 comprehensive surveillance program, to be implemented without court warrants and without adequate consultation in Congress, could pass the smell test.
Hayden said he sought an oral opinion from then-NSA general counsel Robert L. Deitz, whom Hayden has now brought over to CIA as a "trusted aide." In the fall of 2007, Hayden launched Deitz on an investigation of the CIA's own statutory Inspector General, who had made the mistake of being too diligent in investigating abuses like torture. Enough said.
Hayden Comfortable With Torture
As the Senate Armed Services Committee has now confirmed, President Bush, by executive order of Feb. 7, 2002, gave carte blanche to torture. That was four years before Hayden was confirmed as CIA director. But when asked to be chief apologist for abusive interrogation techniques, Hayden again saluted. And after nearly two years as chief of CIA, Hayden confirmed (on Feb. 5, 2008) that, in 2002-03, "9/11 mastermind" Khalid Sheikh Mohammed and two other "high-value" detainees had been water boarded.
Water boarding, an extreme form of interrogation going back at least as far as the Spanish Inquisition, has been condemned as torture by just about everyone—except the legal experts of the Bush administration, including Attorney General Michael Mukasey, who is still having trouble making up his mind on this issue—for reasons that should be abundantly clear.