Washington’s double legal standards

Former CIA Director Mike Hayden, shortly after the FBI raided the home of former President Donald J. Trump, responded to a tweet by Michael Beschloss in a way that, apart from disregarding any presumption of innocence, seemingly endorsed the idea that Trump was a spy who, for allegedly having taken classified documents, should be executed by the government, as the Rosenbergs were in 1953 for having passed US nuclear secrets to the Soviet Union. “Sounds about right,” Hayden wrote over of photograph of the Rosenbergs on Twitter.

Full disclosure There is a bit of history between Hayden and me. I opposed his nomination to be CIA director, by saying at the time, “Bottom line: I do believe he’s the wrong person, the wrong place at the wrong time.”

Hayden’s comment reflects what many fear: that there is a real double standard for certain Americans versus protected bureaucrats, politicians, and those favored by a mainstream media that has been accused of behaving like an arm of the Democratic Party (here, here and here). When President Joe Biden stood in Philadelphia before a blood-red wall flanked by U.S. Marines whom the Commander-in-Chief used as political props, he did not condemn Hayden’s suggestion to execute the former president; instead, he attacked everyday Americans with whose politics he disagrees.

When local Democrat official Robert Telles was arrested in the alleged murder of a Las Vegas reporter who investigated him for having an inappropriate relationship with a subordinate, you would have been hard pressed to know he was a Democrat. The media simply left that fact out of the story or buried in later paragraphs. Similarly, there was not much coverage of the Democrat political operative who hired a hit man to kill a political opponent. Similarly, when a North Dakota teen was run over and killed, the mainstream media ignored the suspect’s claiming that he did it after a political disagreement with the teen, whom he labeled a “Republican extremist.”

President Biden, where is your condemnation of this Democrat political violence? How about the FBI agents who raided the home of former president Trump and reportedly rummaged through the former first lady’s clothes closets and took Trump’s passports? Was this not politically excessive, President Biden?

When Hillary Clinton’s emails were found to contain classified information, some marked at the highest levels of classification, the FBI did not raid her home in Chappaqua, New York. They did not overturn her office or closets when classified emails turned up that she had not sent back to the government or when she wiped the data on her personal server with BleachBit, which meant the government would never know the full extent of the documents Clinton kept. Why was she treated differently by the FBI?

Our bureaucrats, it seems, have no boundaries when it comes to a former president of the United States. What a precedent to set. Let us compare that to how they treat themselves.

As a former House Intelligence Committee chair and U.S. ambassador, I have long dealt with our intelligence and law enforcement communities and can cite chapter and verse how these bureaucrats have protected themselves. Consider the case of former Director of National Intelligence James Clapper, who lied to the Senate when he declared that the intelligence community had no mass surveillance program collecting data on Americans. Not only did he lie in his public testimony before the committee, he also refused to acknowledge his lie and instead tried to explain it away. Because Clapper is a protected bureaucrat, he faced no consequences, and even joined CNN as a paid national security contributor, regularly attacking former President Trump. CNN does not note that he perjured himself before Congress — with evidence — when they put him on the air.

The case that is perhaps most illustrative of the double standard was the 2005 destruction by CIA of 92 video tapes, comprising hundreds of hours of material, on the agency’s enhanced interrogation program.

For those who do not remember the enhanced interrogation program, it was a CIA program that attempted to gain valuable information, intelligence from captured al-Qaeda members about the plans, intentions, and capabilities of the organization.

The enhanced interrogation program was extremely controversial when it, along with the existence of secret prisons, was leaked to the media, but Jose Rodriguez, the director of operations for the CIA at the time, staunchly defended it. The CIA claims that it provided valuable insights into al-Qaeda, including information that eventually led to the successful raid that resulted in the assassination of Osama Bin Laden. Others have concluded the program was tantamount to torture, including Democrats on the Senate Intelligence Committee, who conducted a review, and the European Court on Human Rights.

As one the members of the “Gang of Eight” top congressional leaders briefed on the most sensitive intelligence, we were briefed on the “enhanced techniques” in 2004. It was difficult to imagine how they would be used or what the impact would be on a prisoner. We were told that we would be briefed on what techniques would be used on what individuals before they would be used again. We were never presented with the challenge of a review during my tenure.

As awareness of the program became public, Congress tried to get a better understanding of how it worked and how effective it was and just how far it had gone. Viewing those tapes would have been extremely helpful in making oversight determinations, but Rodriguez had ordered them destroyed.

How does that happen? When Congresswoman Jane Harman, the ranking Democrat on the House Intelligence Committee at the time, first learned of the tapes in2003, she warned the CIA in writing not to destroy them. White House Counsel Harriet Miers also urged the CIA not to destroy the tapes. Additionally, in May of 2005, Senator Jay Rockefeller requested documents about interrogation on behalf of the Senate Judiciary Committee. In addition, lawyers for 9/11 defendant Zacarias Moussaoui requested the videos for the defense of their client, and Federal Judge Leonie Brinkema requested information on the interrogation program for court proceedings involving another detainee.

Despite congressional pressure, directives from White House lawyers, and federal legal proceedings, Rodriguez made the call to destroy the tapes in a secret cable written by Gina Haspel, who would go on to become CIA director under President Trump.

No one was ever charged for destroying the tapes. As far as I know, no homes or offices were ever raided to uncover evidence. But because these unaccountable bureaucrats took this action, the American people, Congress, and the courts will never know what really happened during this controversial period of American history.

What of Michael Hayden’s role in all of this? After The New York Times advised the Bush White House that it would be running a story on the destruction of the tapes, Hayden wrote to the CIA staff that congressional leaders had been briefed on the existence of the tapes and their planned destruction. Wrong. I had not been briefed on the existence or destruction of the tapes when I became chairman in 2004 and Jane Harman had earlier objected to the tape destruction in 2003.

Hayden also stated that the tapes were destroyed, “only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquires.” Again, all evidence points to the contrary, and Hayden is wrong to make these clearly false assertions.

Hayden’s efforts appear to be just another in a long line of efforts to cover up the actions of unaccountable bureaucrats, who not surprisingly, were never held legally accountable.

My candid advice to Biden, Hayden, Clapper, and many other media commentators, is to consider your own records — and be careful what you advocate.

Hillary Clinton by Gage Skidmore is licensed under CC BY-SA 2.0