Hayden and the Closed Session Tango

During his hearings yesterday there were several times that DCI nominee Michael Hayden chose not to answer the question posed - and instead deferred to respond in Closed Session. Certainly we have to respect that certain things simply can't be discussed in public, but it is fascinating to note exactly which things isn't it? I mean if a Senate asked a question where the answer was clearly "No" - then basically the answer is "No", right? But if not - if the answer is possibly "Yes" or involves some more detailed explaination, then you get - Closed Session.

I admit this is a somewhat imperfection rule of thumb, but for the purposes of snark - I'm sticking with it.

So how many times and to which questions did Micheal Hayden respond this way during the public section of his hearing??

LEVIN: Is that the whole program?

HAYDEN: Senator, I'm not at liberty to talk about that in open session

LEVIN: I'm not asking you what the program is, I'm just simply saying, is what the president described publicly the whole program.

HAYDEN: Senator, all I'm at liberty to say in this session is what I was talking about, and I literally, explicitly said this at the press club, I am talking about the program the president discussed in mid-December.

LEVIN: And you're not able to tell us whether what the president described is the whole program?

HAYDEN: No, sir, not in open session. I am delighted to go into great detail in closed session.

Why can't he tell us whether the President is a bald-faced liar? Probably the fact that al Qaeda aren't the only targets - and the President is a bald-faced liar, but that just my opinion.
Translation: "There's much more to the Terrorist Surveillance Program than what the President has described so far."

Feinstein: Do you believe the Fourth Amendment contains a probable cause standard?

HAYDEN: It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.

The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?

And I can elaborate a little bit more in closed session, but for example -- for example, if we have a technology that protects American privacy up to point X in the conduct of our normal foreign intelligence mission, it is reasonable, and therefore we are compelled, to use that technology.

Well, seeing as they aren't using those warrant things so much anymore -- why have probable cause when reasonableness will do? Exactly how the Fourth Amendment became a national security issue - I'm not entirely certain. Translation: "No."

FEINSTEIN: Has the administration sought -- or NSA sought Title 1 warrants from the FISA Court for the collection of telephone content? And has it sought pen register trap-and-trace device approval from the court for the collection of telephone records or transmittal information? HAYDEN: Ma'am, let me give you that answer in closed session. Just a slight discomfort. But I'll be happy to give it to you as soon as we get to closed session.

Translation: "Nope! We don need no stinkin' warrants!"

FEINSTEIN: Did individuals in the White House push for a broader and further-reaching surveillance program, including purely domestic calls without warrant... HAYDEN: No, ma'am...

FEINSTEIN: ... as was reported in last Sunday's New York Times?

HAYDEN: Yes, I understand. And I will give you just a touch more granularity in the closed session. But in open session, these were all discussions. Our views were -- NSA views -- were highly regarded, and there was never an argument over that issue.

Translation: "The issue was discussed with the administration - but NSA felt differently. The NSA lost. So did the American people."

FEINSTEIN: Is there a periodic review of what useful and actionable intelligence can be gathered through interrogations and debriefings of terrorists that have been held with no contact with Al Qaida or other groups for years? HAYDEN: Again, a more detailed in response in closed session. Let me just hold it for closed, ma'am. And I think..

The reality is some of these people will simply never be either released or tried - if they've been tortured their testimony is useless and prosecution impossible, and if they're high value targets they're far too dangerous to be released - particularly after they've been tortured. Translation: "Probably, but what does it matter?"

FEINSTEIN: On March 17th, 2005, Director Porter Goss stated to the Senate Armed Service Committee that waterboarding fell into, quote, "an area of what I will call professional interrogation techniques," end quote.

Do you agree with that assessment? Do you agree with Mr. Goss's statement that waterboarding may be acceptable?

If not, what steps have been taken or do you plan to take to correct the impression that may have been left with agency employees by Mr. Goss' remarks?

HAYDEN: Yes, ma'am. Again, let me defer that to closed session, and I would be happy to discuss it in some detail.

Feinstein just asked him a public relations question "how do you plan to correct the impression"- and he deffered to closed session? Translation: "Whether I correct the "impression" or not - it's Thumbs Up for Waterboarding!"

FEINSTEIN: Has the agency received new guidance from the Department of Justice concerning acceptable interrogation techniques since the passage of the Detainee Treatment Act? HAYDEN: Let me answer that in closed session, ma'am. But, again, I will be delighted to answer it for you.

This question was essentially asking have you updated your guidelines to eliminate torture since Congress Passed A Law requiring that you updated your guidelines to eliminate torture. Translation: "Not Bloody likely."

FEINSTEIN: The New York Times reported on November 9th, 2005, that in 2004, the CIA inspector general concluded that certain interrogation practices approved after the September 11th attacks did constitute cruel, inhuman, and degrading treatment as prohibited by the Convention Against Torture.

Do you agree with the I.G.'s conclusion? And what corrective measures, in any, have been instituted in response to the I.G.'s findings?

HAYDEN: Ma'am, again: More detailing in closed session. I would have to learn more about the I.G.'s findings.

He doesn't know what the CIA inspector general concluded based on a publically known law, but it's still a security issue just to comment on it? Translation: "Fuck the Convention Against Torture. It's just some quaint International Law, my good friend Abu told me so..."

FEINSTEIN: Ambassador Negroponte and other intelligence officials have estimated that Iran is some years away from a nuclear weapons capability. How confident are you of these estimates? HAYDEN: Again, I would be happy to give additional detail in closed session. But I do want to say more about this with an open. Iran is a difficult problem. We call it a hard target. But I think it unfair to compare what it is we believe we know about Iran with what it is we prove to know or not know about Iraq.

Translation: "Iran is gonna Get Nuked, whether they have their own nukes in the next ten years or not."

HATCH: Now, if we had this program, let's say a year before 9/11, what effect would it have been on 9/11, do you believe? HAYDEN: I've said publicly -- and I can demonstrate in closed session, how the physics and the math would work, Senator -- that had this been in place prior to the attacks, the two hijackers who were in San Diego, Khalid Almihdhar and Nawaf Alhazmi, almost certainly would have been identified as who they were, what they were and, most importantly, where they were.

What do you mean "would have been identified?" They were living with an FBI Informant. We knew who they were - you just didn't do anything about it. Translation: "I'm an Ass."

WARNER: What is it, when you hit that deck, are you going to do that was not being done, in your judgment, either according to law or otherwise?

(After some hemming and hawing)

HAYDEN: Frankly, I just want to look forward. I'll assess the situation and move on.
WARNER: And we want to rest assured, when we do fill that vacancy, whatever omissions -- omissions or otherwise -- were taking place to justify this, are corrected. And you'll assure us that that will be done.

HAYDEN: Yes, sir.

WARNER: Perhaps in closed session, you can...

HAYDEN: OK.

Translation: "Non-sequitor. Anybody got a Diet Tab?"

WARNER: What can you tell us, in open, will be some of your initial step to strengthen that collection of intelligence as it relates to Iran?

HAYDEN: Yes, sir, and you chose the right word. It's strengthening, rather than some sharp departure. The ambassador has appointed a mission manager for Iran, Leslie Ireland. Leslie has that task as her full-time job.

And what she's doing is not just inventorying what we're doing as a community but actually redirecting our emphasis as a community.

And in closed session, I'll give you a few more details

Translation: "Not bloody much."

WARNER: Now, if I understand it, earlier in this testimony you said that you fully intend -- that is the agency -- to comply with the basic standard of not involving in any cruel or inhuman or degrading -- fine -- treatment. I understand that. But there's a whole manual out here guiding the men and women in uniform. Should there not be a companion manual guiding the civilians who will be performing much of this task?

HAYDEN: Senator, speaking in generalities now and perhaps more detail in a closed session, absolutely.

Translation: "Ah...yeah, but that doesn't mean that they can't perform cruel or degrading treatment on them by simply redefined it into something that isn't physically possible without killing the subject!"

HAGEL: But we're going to need some guidance from you. Here's an opportunity, General Hayden, to lay some of that out, if you care to give us some of your thoughts on how do we rewrite a law that does what you need to do and protects the interest of our country as well.

HAYDEN: Yes, sir. Let me not get into specifics. If we need to, we can share some ideas in closed session.

Translation: "Let's not give the evil-doers our playbook on national television, even if we're just debating the possibilities - not actually re-writing it."

FEINGOLD: But that's not my question. And that wasn't Senator Bond's question. It's whether it's ever happened that any Americans have been targeted who weren't associated with Al Qaida. As a matter of fact, has it happened, despite the cautions...

HAYDEN: Sir, I'll give you a detail in closed session, all right?

Clearly, I think logic would dictate that if you're using a probable cause standard as opposed to absolute certitude, sometimes you may not be right.

Oh SHIT! Translation: "Oh SHIT!"

BAYH: Let me ask you this question then, General. Isn't that also the same standard that would apply under FISA? HAYDEN: Yes, sir.

BAYH: So why not use FISA then?

HAYDEN: I can get into...

BAYH: Don't you have to meet the same burden of proof no matter what?

HAYDEN: Yes, sir. I can get into more detail in closed session and point out some additional difficulties.

Because FISA requires the probable cause standard and the International Surveillance program is using the "reasonableness" standard which means sometimes you "get it wrong" and you wouldn't want fix that problem wouldn't you? Translation: "Because, I'm a total ass."

[Update: Feel free to offer your own translations, mine are by no means ment to be conclusive.]

Vyan