Former CIA Director Hayden on Interrogation, Common Article 3

by Deborah Pearlstein

I had the pleasure of attending a terrific conference at Duke this past weekend, hosted by the Center on Law, Ethics and National Security. My panel addressed perennial questions about whether the courts should defer to the executive on questions of national security (on which more than you want here), but there were terrific sessions on, among other things, lessons learned from joint international military operations, with officers from US, Canadian, UK, and Australian armed forces; about IHL/human rights law issues in targeting, detention, and cyber (the last with Dick Jackson, Laurie Blank, and TJAG of the Navy Adm. Houck); and about the many ways in which corporations are confronting national security issues. I’m told video of the panels will be available soon.

Perhaps the most remarkable session, though, was the dinner talk given by General Michael Hayden, who held, among other positions, the job of CIA director during the George W. Bush administration. The talk was delivered to a dinner hall of at least 100 people (I suspect more), including a range of academics, many serving and retired members of the U.S. military (and some of our allies), members of the Durham community, etc.

Hayden was deeply skeptical of Obama (for some combination of what Hayden saw as hypocrisy and naiveté), aggressive in his defense of Bush-era detention and interrogation programs, and strikingly candid in describing his role and the depth of his support for the CIA’s involvement in these endeavors. It seems worthwhile briefly summarizing his remarks in sense and sensibility here.

To some extent, the speech’s greatest rhetorical flourishes were phrases we’ve heard before. As Hayden described, he set his course according to the CIA’s “vision statement” that “ye’ shall know the truth, and the truth shall set you free.” Our counterterrorism efforts require the engagement of “rough men,” the ones who make it possible for us (as Orwell, and then Churchill, and later, Jack Nicholson, put it) to “sleep safely at night because [they] stand ready to visit violence on those who would harm us,” and who (this is Hayden now) “go where others cannot go, and do what others cannot accomplish.” This conflict is especially novel in its needs for such “rough men” because our enemy this time doesn’t follow the Geneva Conventions, and because we can’t, as Hayden put it, “define who the enemy is.” Thus, what we need are men willing to get “chalk on their cleats” in walking at the edge of the boundaries set by the law on detention, interrogation, etc.

It was difficult to take notes without editorializing. I had thought, for example, that many of our past enemies had also failed to abide by the Geneva Conventions. (The Vietcong comes to mind.) I’m likewise not sure how it is one wages a war without knowing, with at least some specificity, who the enemy is. The football metaphor was at least familiar from Hayden’s previous public statements. But I hadn’t fully understood that in Hayden’s version of the game, the object seems to be all unrelated to, say, scoring a touchdown, but is rather more about getting chalk on one’s cleats as a matter of first principles.

Confronted as CIA Director with the courts’ increasingly vigorous engagement on these questions, Hayden was scathing in his criticism of Justice Stevens and his opinion for the Court in Hamdan. That case of course held, among other things, that Common Article 3 applied in the armed conflict with Al Qaeda, at least as it played out (as CA3 puts it) “in the territory of” Afghanistan. In response to this and other judicial decisions, Hayden recounted encouraging his subordinates to buck up: “We’ve been kicking their asses in FATA [describing the volatile tribal region in the northwest of Pakistan], we’re going to kick their asses here too” in the habeas cases the courts allowed to proceed.

As for the use of interrogation techniques the U.S. authorized (techniques CA3 would seem to prohibit), from slapping prisoners to waterboarding, Hayden expressed the view that he believes those actions lawful, and indeed that it would have been “selfish” for him not to support such measures being taken. For then he would have been putting his own personal concerns (namely, it seemed, a fear that one might later be held legally liable for such actions) above those of the nation. “Democracies cannot wage war over the long term on the basis of strict legalisms,” he said.

Finally, as part of his recurring criticisms of Obama and his staff, Hayden strikingly chose to describe some of the exchanges he had with then President-elect Obama when Hayden went to Chicago to brief Obama on various matters in December 2008. He even recounted some of the questions the President-elect put to Hayden in these briefings.

I would’ve thought the content of such meetings confidential. Or perhaps not.

http://opiniojuris.org/2012/04/18/former-cia-director-hayden-on-interrogation-common-article-3/

5 Responses

  1. I am sorry that I missed it, Deborah.  Thanks for the re-cap.  It sounds very interesting indeed, and unsurprising.

    As for the football metaphor, assuming we mean the American version, it seems problematic given that, in football (as opposed to tennis or soccer), a player’s touching the sideline or end line means that he is “out-of-bounds.”  Player’s with chalk on their cleats have therefore gone beyond the proper field of play (unless the chalk is from a yard line or end zone line, in which case the chalk is irrelevant and not worthy of note).

    In soccer and tennis (and other sports), the BALL must be completely beyond the line before it is “out,” and it does not matter where the player is in relation to the ball.  So in these sports, the chalk on a player’s cleats is irrelevant and unworthy of note, because it does not indicate whether the play is “in-” or “out-” of bounds. 

    So, the implications of the metaphor are…

  2. I do believe that there are people – or at least I hope there are people – who would listen to these meanderings of Hayden and walk out.  I would be grateful if you would let opiniiojuris.org know whether in that room while you were there – any of the people sitting there stood up and politely or whatever simply walked out.  Or how about a little “boo”?  I suspect that – out of a misguided sense of decorum and the “it’s not done” thing - that no one in that space did that.  Why?  Because it is so delicious to hear the “inside story”.  To have tropes of macho-ness like “rough men” be bandied about to turn our heads and make ladies swoon.  Ah the yearning to be close to those who have had power.  Such an elixir.  A kind of crack for the intelligentsia.

    Let someone say it again – this is not manliness, this is not macho-ness – these are not warriors those who torture.  They are cowards, the vilest sort of cowards who preen behind patriotic appeals to mask their lack of spine.  They rail against the courts because those American lawyers who bring those cases against them force a spine – commonly known as the rule of  law – on these types.  Duke may like giving honor to dishonorable men, but I for one am glad I was not there.

    I went to one of these back in 2005 and spent the whole time questioning and challenging the ambient – groupthink – and did not get satisfying answers.  I doubt there was any serious debate but hope I was wrong.  If the space was between Bush era types and Obama era types – that was a narrow space for discourse on these things.

    As to Hayden saying what candidate Obama asked as questions, well the campaign is on and everything will continue to be thrown at Obama because he showed up all the “rough men” by getting OBL without fanfare or puerile bluster.  That sticks in the craw of all these tough talkers.  You can’t just talk the talk (memo to Romney) but you have to walk the walk (memo to Obama).  Prosecute Hayden and the rest of them and put them in with some real rough men.

    Best,
    Ben

  3. Response…
    Outrageous!  Obama has failed to comply with his constitutionally-based duty to faithfully execute the law (and prosecute those who are reasonably accused of having authorized or abetted international crimes) and this (and Cheney’s prior rants) are what we get (and what Obama gets from Hayden). Recall that 29 U.S. federal and state court cases, 7 U.S. Dep’t of State Country Reports, 2 European Court of H.R. and 1 Inter-American Court of H.R. decisions had already recognized that waterboarding and related inducements of suffocation by water are “torture” (which under “strict” customary and treaty-based international law is absolutely unlawful universally and in all social contexts).
    Marjorie Cohn’s book at NYU Press, The United States and Torture, has just come out also in paperback.  My book at Cambridge University Press, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (2007) is still available in hardcover and paperback.

  4. Response…
    Concerning the illegality of waterboarding and several other Bush-Cheney interrogation tacics, see also http://ssrn.com/absract=1331159
    Ben is working on state prosecutions.

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