Gen. Hayden Comes Out

A lot of stuff happened on Michael Hayden's watch - or watches. 40-year career military, he retired with four stars. He served as Director of the National Security Agency (DIRNSA) from 1999 to 2005, Deputy Director of National Intelligence (DDNI), 2005 to 2006, and Director of Central Intelligence (DCI), 2006 to 2009.

The last ten years of Hayden's career are, um, interesting, a period that was a particular challenge for the American intelligence community - and for Hayden personally, a time when he became a senior placeholder and the brand label for an emerging subset of spycraft, the Information Domain.

Hayden commanded the Air Intelligence Agency before moving up to NSA. This is one of the three military cryptologic units (each of the major branches have one), and in fact it's my old outfit, the USAF Security Service, dressed up in new clothes and renamed. the basic mission is much the same, but as the electronic battlefield has gotten more sophisticated and elusive, the targeting and analysis strategies have kept pace. Hayden's assignment to AIA was a bellwether of his later tenure as DIRNSA. Although he seems to have miraculously few serious enemies in and around the Beltway, he's known to take no prisoners.

Air Intelligence apparently became something of a test case, both for Hayden and the secret world at large. It's a commonplace that generals fight the last war, and it's just as true of the secret intelligence community. Hayden brought a different mindset to AIA. The enemy was no longer state-sponsored. The environment was target-rich, but suddenly diffuse, amorphous and unfocused. Hayden didn't invent the concept of metadata, but he understood how it could be a useful tool. The problem wasn't too little intercept, it was too much. You needed a way to shape the raw material, to give it context and collateral, and put the dirty bits in boldface.

Otherwise, your 'product,' in the jargon, turned lumpy and indigestible, like a cake that's fallen in the oven, and your consumers would spit it out. You're only as good as your box office. Hayden understood the relationship was market-driven.

Let's cut to the chase. There's a cloud over Hayden's job performance as DIRNSA, and then as DCI. The complaint is that he was, in effect, a Good German - that he turned a blind eye to excesses. Now that Hayden's published a  memoir, PLAYING TO THE EDGE: American Intelligence in the Age of Terror, he gets to tell his side of the story, or at least blow some smoke our way.

Let me 'splain something here, Lucy. Spook memoirs are a mixed bag, a specialized genre like the campaign biography, with peculiar ground rules. There are the outright fabrications, like Kim Philby's MY SILENT WAR, which was ghostwritten by his KGB handlers. On the other hand, some are entirely reticent. Dick Helms' A LOOK OVER MY SHOULDER is so dry you wonder if the guy even has a pulse, until he gets to Nixon and Watergate, and his fury boils over. They usually split the difference, between a poison-pen letter and a sanitized employment application. It helps if you're familiar with the background landscape, and the supporting cast, which of the stories have been told before, from which perspective, and who's gone into Witness Protection. Valerie Plame Wilson and Scooter Libby are going to have two very different recollections of similar events, let's face it, and the possibility of active disinformation is never far from mind. You have to sort it out, and separate the self-serving from the malicious, or purely deceptive.

'Frank' isn't a word that trips immediately off the tongue when you consider Michael Hayden, but the book is revealing in ways he maybe isn't aware of. It surely displays the quality of his mind, and it also betrays an impatience with fools, which is no bad thing. I was put off, though, by a certain rigidity of temperament, or even spirit. Hayden doesn't seem to entertain much self-doubt. He's not a second-guesser. He weighs the arguments, he calls heads or tails, and then the tablets are written in stone.

A case in point is PRISM, the eavesdropping program I've described previously. Hayden refers to it as STELLARWIND, which is how the product was labeled, and although he admits there were some privacy concerns, it was simple necessity to use it. Okay, take his word for it. Then let's talk about Enhanced Interrogation. Opinions vary, but a lot of professional interrogators say torture doesn't get the needed results. Hayden says different. Again, is this philosophical, or metaphysical? Depends whose ox is being gored. If you're the guy on the operating table with water running out your nose, you're in no position to argue. We could also get into the nuts and bolts of the drone program and how targets for elimination are selected.

The larger question here, aside from specific issues, is transparency. Hayden's read on this is spectacularly tone deaf. When he took the helm at NSA, he made an effort to drag them kicking and screaming into the daylight. This was simply good public relations, to position the agency as a visible presence, and sitting with the grown-ups. He'd also inherited a recalcitrant and ungainly command and reporting structure, so Hayden's reorganization went some way toward establishing his own independent power base. What didn't happen, though, was any change in his baseline metabolism. The habit of security, circling the wagons, is ingrained, it becomes second nature.

Hayden falls back on the Honorable Men defense. This is the title of William Colby's memoir of his years as DCI - and comes, in fact, from his testimony in front of the Senate Select Committee. We work in secret, Colby's train of thought goes, and the American public has to trust us to be honorable men, that we know right from wrong. Or, as Mike Hayden puts it, quoting an unexpected source, "To live outside the law, you must be honest."

Stop me if you've heard this. It sounds much the same, set to new music, and sung in the key of Tuned Out.

Why Won't Anyone Talk To Me?

• You have the right to remain silent when questioned.
• Anything you say or do may be used against you in a court of law. 
• You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
• If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
• If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
• Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Well...are ya, punk?

Not Miranda, but Lorre looking like he needs some "coaxing."

Every writer of crime fiction runs into the Miranda Warning sooner or later.  How many TV episodes have ended with, "You have the right to remain silent..."?  There's just no getting away from those famous words arising from a 1966 Supreme Court decision regarding the Fifth and Sixth Amendment rights of one Mr. Miranda.  It was decided that his admissions during police questioning  leading to his conviction for rape and kidnapping were inadmissible, as he did not fully understand his right against self-incrimination, or the right to have an attorney present during questioning.  Out of that decision arose the warning that all U.S. police must give prior to custodial interrogation of a suspect.

A lot of young officers come out of the academy wringing their hands and mumbling the Miranda Warning over and over in their anxiety.  It's a mantra they don't feel comfortable going a day without saying for fear of running afoul of someone's civil rights.

Citizen: "Officer, can you help me find Fluffy, my cat?  I'm so afraid something's happened to her." 
Police Officer: "Of course, ma'am, I'd be happy to, but did you know that you have the right to remain...."

Not everybody needs to be delivered their Miranda rights.  It's okay for the police to talk with citizens, and even interview them without the Miranda litany occurring on every occasion.  It's a fairly simple formula that results in the mandatory warning: Interrogation + custody=Miranda.  And therein lies that grey area the police find themselves in so often.  What exactly is "interrogation" and "custody"?  Are interviews the same as interrogation?  If a person is in the police building, is he/she in custody?  We damn sure know what the Warning is, but the application can get fuzzy.  Maybe it's best just to sing it out from time to time in case someone's thinking of confessing.

Police interviews can be described (by me, at least) as the questioning of potential witnesses, complainants, victims, and even those temporarily detained at the scene of a crime or accident.  The object of such interviews is to determine exactly what has occurred and who may be involved or have witnessed the incident.  I know what you're thinking--if someone's been detained, don't you have to Mirandize them?  The short answer is no.  Not always and not if the officer is yet to determine that a crime, in fact, has been committed, and that the person he is speaking with is a suspect.  Once a person becomes an active suspect the relationship changes; especially if he has been detained.  The officer would be wise to read him his Miranda Warning at that point, if he's going to continue questioning him.  Now it's now longer an interview, with the overarching goal of determining the circumstances and players, but an effort to determine the amount of involvement by the suspect.  In other words, he has become the object of the questioning, and that's interrogation.

But what if this happy individual is a suspect, and you the police officer are interrogating him, but he's not in custody?  Example: You're sitting across from him in his own living room firing questions, while he answers them with a patient, but weary, air.  Does he get the Miranda or no?  Again, the short answer is no.  Even though he's being interrogated, he's not in custody.  He's in his own home, no cuffs or restraints are involved, and you don't have half a dozen uniformed officers surrounding him (hopefully).  That being said, it would probably be wise to do so, because if he does make any admissions, his attorney is going to do his very best to have them thrown out.  The absence of a Miranda Warning will form the centerpiece of this effort, and he will cite his client's trusting nature and ignorance of his right to have an attorney present as reasons to do so.  Attorneys have argued in the past that the mere presence of a police officer creates a custodial environment.  My own children would have agreed; fortunately the courts haven't yet gone that far, but you can see how skittish these things can make the police.

Even the suspect that voluntarily comes into the police department in order to be questioned is not necessarily considered to be in "custody."  So long as he understands that he is free to  leave the situation doesn't rise to the level of "custodial interrogation."  But the officer has to be very careful here.

Do suspects voluntarily confess?  Yes, yes they do.  And it even happens without the torture techniques for which the police are so well known.  There's several reasons for this in my experience.  One is that they just can't contain their guilt.  I know that seems a very antiquated notion these days, guilt, but there are some poor souls genuinely afflicted with conscience.  Fortunately for defense attorneys their number seems to be decreasing.

Another reason is to cut a deal.  I would say that this is the most common reason--self interest and preservation.  They're the practical ones--they know their butt (or some other appendage) is in a wringer and they want to cut their losses.  These kind of arrangements require the blessings of the prosecutor, as the police are not generally allowed these powers without him/her granting them.  The defendant's attorney is, no doubt, going to be part of these negotiations.

Inadvertent.  This category actually falls more into the "admission" category than the genuine confession.  Suspect is much smarter than the police and enjoys letting them know it.  This usually ends with the suspect stopping in mid-sentence with an expression of growing horror on his face as it dawns on him what he has just let slip.  Sorry, after the Miranda Warning, there's no take-backs.

In closing, it's worth mentioning the Miranda Waiver.  Most states issue the police cards with both the Miranda Warning and a Waiver printed on them.  If the suspect wishes to cooperate, the waiver is signed, along with a block acknowledging that they have been read their rights and understand them.  Here in New Jersey we also have a requirement to videotape interrogations that occur within the police department.  As nearly everyone is convinced that confession=torture/coercion, the reason for this is obvious.

Now, is there anything you want to confess?  I'm all ears.