Editor's note: Gen. Michael V. Hayden was appointed by President 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.
WASHINGTON (CNN) -- I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the "first draft" of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.
And this footnote has to do with President Obama's decision in April to release opinions drafted by the Department of Justice that detailed the CIA's interrogation program for high-value al Qaeda detainees.
Specifically, it has to do with the argument made publicly and privately by the administration that its hand was being forced by a pending decision in a Freedom of Information Act case by the American Civil Liberties Union before Judge Alvin Hellerstein in New York.
Indeed, when Obama visited the CIA the Monday after the release of the documents, he specifically cited this argument in his remarks to the work force.
He said that he released "... the Justice Department Office of Legal Council (OLC) memos as a consequence of a court case that was pending and to which it was very difficult for us to mount an effective legal defense. ..."
Many disagreed with that presumption.
Only a few weeks before, CIA lawyers had been hard at work with other government attorneys sorting out which of the many available FOIA exemptions they would use to continue to protect various parts of the OLC documents.
They were confident since, in the very same ACLU FOIA case, the CIA had been in front of Hellerstein the year before on an almost identical issue.
Based on a declaration I signed, the judge had agreed in 2008 to allow us to continue to protect -- on the grounds of national security -- the specifics of waterboarding, a technique that had not actually been used since March 2003 and one the agency had not even authorized for use in years.
Despite all that, the judge agreed that to reveal the details of this technique would tie the hands of a president in a future emergency -- since, after all, laws and policies and presidents could always change.
When I pointed this out to administration officials in March, I was reminded that a report from the International Committee of the Red Cross recently had been leaked and that, since "so much was already out there," it would be impossible not to declassify almost all of the Justice Department memos.
I replied that it wasn't all out there and that there was a difference between speculation (however, informed or ill-informed it might be) and formal confirmation by the U.S. government.
Even today there are activities that are universally "known" but are still not officially confirmed by the U.S. government, and no one takes issue with the wisdom of continuing the policy of official silence.
I could not fathom how the unauthorized disclosure of the ICRC report, which was based substantially on prisoner debriefs, could possibly lead the government to conclude that it had no choice but to declassify and inventory for the world the details of the past interrogation program.
My lawyer friends remind me that nothing is certain in litigation, but a September 30 decision in the same ACLU FOIA case by Hellerstein tells me that my arguments had merit.
In this latter instance, CIA Director Leon Panetta was allowed to contest release of information on the CIA interrogation program.
As he (and his five immediate predecessors) had argued internally in the case of the OLC memos, he claimed that such a release would cause extremely grave damage to human intelligence collection and foreign liaison relationships.
He went on to add, "The release of operational details regarding implementation of the program would tend to reveal more generally the government's approach to questioning terrorist suspects, and thus must remain classified."
Hellerstein took him at his word and, as The Associated Press described it, said he believed he had an obligation to let the CIA director decide what should be released when it pertained to methods used to make uncooperative detainees divulge information.
Citing a "very harsh" post-9/11 world, the judge emphasized that "the need to keep confidential just how the CIA and other government agencies obtained their information is manifest. ..."
He went on to note that when intelligence matters are legitimately involved "... my job is to defer to the extent appropriate -- and that is substantial -- to the decision of the director of the CIA," and pointed out that "there has been a reluctance on the part of the courts to interfere with the discretion conferred by the mandate of the statutes on the CIA." And the judge said all of this even after the government's voluntary release of the detailed OLC interrogation memos five months earlier had put so much information into the public domain.
Make no mistake. The decision to release those memos in April was a political one, not a legal one -- a question of choice rather than necessity.
This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless "the judge was going to make me do it" argument.
As I said, this is all now a footnote, and Hellerstein's September decision was barely remarked in the public discourse.
But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.
The opinions expressed in this commentary are solely those of Michael V. Hayden.
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