Gen. Michael Hayden’s confirmation hearing to determine whether he will be the next director of the CIA has not yet begun in the Senate. When it finally gets under way on Thursday, May 18, there are several tough questions the members of the Intelligence Committee are sure to ask concerning Hayden’s role in the current NSA spying scandal and his tenure as head of the National Security Agency.
A four-star Air Force general, Hayden would be the first active-duty officer to head a civilian intelligence agency, raising constitutional questions regarding military control of executive governmental functions. Beginning as a product of a scholastic ROTC program, he achieved his present rank while running the National Security Agency, and was its longest-tenured director, serving from 1999 until 2005.
It was Hayden as NSA chief and on his own initiative who first proposed, then implemented the warrantless domestic spying program currently causing a furor among the press and public. According to a January 4, 2006 story in the Washington Post, “Even before the White House formally authorized a secret program to spy on U.S. citizens without obtaining warrants, such eavesdropping was occurring and some of the information was being shared” by NSA with other intelligence agencies.
Electronic surveillance of U.S. citizens without a warrant is illegal and forbidden by the Foreign Intelligence Surveillance Act of 1978, which established a special court to issue warrants to government agencies wishing to perform such surveillance, if probable cause of wrongdoing could be shown.
Proof of the Post’s assertion and the exact time the program went into effect was established only this past month by the release of a letter sent to Hayden by House Minority Leader Nancy Pelosi (D-CA) on October 11, 2001. “I am concerned whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting,” Pelosi wrote Hayden after he had briefed the House Intelligence Committee in closed session on October 1, three weeks after the 9/11 attacks.
Details of the workings of the surveillance program began coming to light only recently. A May 11 USA Today article revealed that Hayden’s NSA used the contracted services of phone giants AT&T, Bell South, and Verizon to compile the immense data base of phone activity which one anonymous government source described as “the largest database ever assembled in the world.”
Among the telecommunications giants, only Qwest refused to participate in the program, citing its questionable legality due to the absence of FISA court approval or oversight.
Besides having been the architect of this administration’s domestic spying program, Hayden is known to have a constricted and less than honest view of the Fourth Amendment, which protects citizens’ privacy and states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…”
At a speech and question-and-answer session at the National Press Club on January 23 of this year, Hayden was asked by one reporter whether the Bush administration and the NSA were specifically targeting the administration’s political enemies. When Hayden dodged the question, the questioner repeated, "No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration?" Hayden gave the reporter a long, thousand-yard stare, and after an uncomfortable silence called on a different questioner.
The final question of the day came from Jonathan Landay of the Knight-Ridder newspaper chain, who observed that Hayden habitually referred to the Fourth Amendment's search standard of reasonableness without mentioning that it also demands probable cause. Hayden seemed to be unaware or willfully ignorant that the amendment included such a provision. At one point he directly said "no" the Fourth Amendment did not include "probable cause."
This caused Landay to reply, "The legal standard is probable cause, General," and he went on to say “You used the terms just a few minutes ago, ‘We reasonably believe.’ And a FISA court, my understanding is, would not give you a warrant if you went before them and say ‘we reasonably believe.’ You have to go to the FISA court, or the attorney general has to go to the FISA court and say, ‘we have probable cause.’
And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of ‘reasonably believe’ in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?”
Hayden replied, “Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
”Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is ‘reasonable.’ And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.”
In short, the Senate Intelligence Committee is being asked to recommend to the full Senate the confirmation as CIA Director of an active-duty four-star general who designed and executed a vast program of warrantless surveillance of American citizens, and who believes that the program violates neither the FISA Act of 1978 nor the Fourth Amendment to the Constitution, because the Attorney-General, Alberto Gonzales, says it doesn’t.
However, this story is still unwinding, and the most important revelations about the NSA’s surveillance program may be yet to come. CongressDaily reports that a former National Security Agency employee, Russell Tice, scheduled to appear before the Senate Armed Services Committee the third week in May, will tell the committee that agency staff generally believe the activities they are performing in connection with the surveillance program are illegal. Tice has been telling people that what has been disclosed so far is “only the tip of the iceberg,” and that Gen. Hayden oversaw and implemented more illegal activity that has yet to be exposed. He hinted that such activity might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens
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