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Does White House have the CIA's back?

By Michael V. Hayden, Special to CNN
  • Ex-CIA head Michael Hayden says Obama rightly carried on some Bush anti-terror policies
  • He says release of interrogation memos raised doubt about support CIA can expect
  • If U.S. officials are ordered to take risks, they must be able to rely on future support, he says
  • Hayden: Support must last longer than the life of one administration

Editor's note: Gen. Michael V. Hayden was appointed by President George W. Bush as CIA director in 2006 and served until February 2009. He also was director of the National Security Agency and held senior staff positions at the Pentagon

(CNN) -- Amidst the very public and emotional debates over the locations of mosques and the burning of holy books, last week's anniversary of the 9/11 attacks also saw quiet commentary on the powerful continuities between the 43rd and 44th presidents when it comes to fighting al Qaeda.

Indeed this anniversary period has been marked by a lawsuit filed by the American Civil Liberties Union and the Center for Constitutional Rights (CCR) claiming that President Obama was far too much like President George W. Bush when it came to targeted killings of terrorists.

Although the focus of the suit is the alleged targeting of an American citizen, Anwar al-Awlaki, an op-ed by the leaders of the two plaintiff organizations indicates that their objections are wide-ranging. They object to treating the whole world as a battlefield (as both presidents have done), to lethal actions outside of accepted theaters of conflict, and to the killing of individuals who do not represent an imminent threat.

Legal scholars do not give the suit much chance of success, and the administration mounted a robust, preemptive defense of its actions earlier this year in a speech by Harold Koh, the State Department's top lawyer.

Good. Authorized by the president, approved as legal, briefed to Congress. What could go wrong?

As it turns out, plenty. Because, in one of the major discontinuities between administrations, Obama last year allowed his attorney general to reveal the classified details of one of Bush's anti-terror programs (also authorized by the president, approved as legal, briefed to Congress) and to reopen investigations of CIA officers involved in it -- investigations closed years ago by career prosecutors.

The administration was not compelled by any court to make public the Department of Justice memos detailing and authorizing enhanced interrogation techniques or the CIA inspector general's report on the program. Although the documents were part of an extensive ACLU Freedom of Information Act suit on the interrogation program, the agency successfully fought against other releases both before and after last year's voluntary actions.

Indeed, the year before in the same suit, with the same plaintiffs, in front of the same judge, I had successfully fought the release of the details of water boarding -- a technique the CIA had publicly disclosed, was not using, and whose legality was then in question because of recent legislation.

To be clear, this is not a debate about ending the interrogation program or forswearing any interrogation technique. The CIA had a view about that, but the president's executive order in January 2009 ending the CIA interrogation program gave the agency the only thing it needed or could want -- clear guidance.

Rather, this is about exposing a previously authorized program for apparent political purposes. Release of the interrogation documents in the summer of 2009 was a choice, a political act. CIA Director Leon Panetta opposed it and, in an open letter to the president, so did seven of his predecessors. The president dismissed the letter as the CIA just looking after their own -- and certainly there was some truth in his view.

But there was much more involved. The CIA is asked to do things no one else is asked -- or even allowed -- to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.

That belief was shattered by the Obama administration's actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

Don't get me wrong. CIA officers still will do their duty. But these events are like an infidelity in a marriage. They will heal only over time, and things will never be the same.

Last year, one agency officer asked the leadership whether folks doing currently authorized operations would suffer the same fate as those involved in the interrogation program. Officers were told that there were no guarantees but that it would not happen while this president was in office

Agency officers have seen this movie before. In addition to the ACLU and CCR suit, the U.N. special rapporteur on extrajudicial, summary and arbitrary executions is also questioning the lawfulness of alleged US activities. At what point will others begin to challenge the effectiveness of some operations, their appropriateness, or the integrity and professional competence of those who authorized, approved or conducted them.

Little wonder that, according to a recent report, one senior CIA official, in an emotional session, pressed the leadership -- unsuccessfully -- for more legal guarantees.

The CIA is often accused of being risk-averse. I didn't find that to be true and let us hope that current agency officers are not deterred from essential actions by what the administration has done. But the country shouldn't take that for granted. Everyone asked to embrace risk has a right to know that somebody has their back.

The opinions expressed in this commentary are solely those of Michael V. Hayden.