The Hayden Charade
Monday 22 May 2006
In his testimony before the Senate Intelligence Committee on Thursday, General Michael Hayden promised to promote
autonomy and objectivity in the CIA if confirmed as its new director. Hayden assured the senators he would provide
"hard-edged assessments" and be tolerant of dissenting views on intelligence matters. "When it comes to speaking truth
to power," Hayden declared, "I will lead CIA analysts by example. I will … always give our nation's leaders the best
The evidence, however, suggests precisely the opposite. As head of the National Security Agency, this 4-star general
walked in lockstep with his commander in chief, George W. Bush. Hayden helped designed the illegal program of spying on
our telephone calls and emails and then repeatedly defended it when interrogated by the senators at his hearing, citing
"legal" opinions of Bush's hired guns in the Justice Department.
Rather than providing the White House with a neutral assessment of Iran's nuclear capabilities, we can expect Hayden to
give Bush the "intelligence" the president seeks to justify his war on Iran. Things did not run as smoothly as Bush
would have wished under the last two CIA directors. He had to dispatch Dick Cheney to the CIA several times to furnish
the "intelligence" he needed to rationalize his war on Iraq.
Senator Carl Levin (D-Mich.) asked Hayden if he was "comfortable" with under secretary of defense for policy Douglas
intelligence-analysis cell, which hyped a link between Iraq and Al Qaeda. Hayden said he wasn't comfortable with it and
protested that he wasn't aware of a lot of the activity going on leading up to the Iraq war.
But when questioned about Colin Powell's use of false WMD information to support his infamous appearance before the
United Nations in the run-up the war, Hayden made a telling admission.
In response to Levin's question about the legal standard for declassifying information in the public interest, Hayden
said, "We used that in Powell's speech. George [Tenet] had to call me for three tapes." Hayden was right in the middle
of the preparation for Powell's disingenuous presentation.
Hayden, who will be the third director of the CIA in two years, will salute and march to Bush's agenda. The nation's
chief spook will shape the "intelligence" to fit Bush's policy of regime change in Iran.
Hayden vowed to "reaffirm CIA's proud culture of risk-taking and excellence." Not one of the senators, from either
party, interrogated Hayden about the CIA's checkered past.
There was no mention of the CIA's 1953 coup that ousted Iran's democratically-elected president Mohammed Mosadeq and
replaced him with the US-friendly tyrant, the Shah Reza Pahlavi. The 1979 Iranian revolution lead to the overthrow of
the Shah's regime and the rise of Islamic fascism under the leadership of the Ayatollah Khomeini, providing a model of
theocracy for much of the Muslim world.
Absent was any reference in the hearing to the CIA's support for Osama bin Laden in his fight against the Soviet Union
in Afghanistan. The defeat of the USSR there, and the rise of the Mujahedin, enabled the Taliban to come to power. Then,
Bin Laden used his CIA training to orchestrate the 9/11 attacks.
Today we are reaping what the CIA sowed in Iran and Afghanistan.
None of the senators asked Hayden about the CIA's torture manuals, which have been utilized by myriad Latin American
dictators to repress their people.
Much of the CIA's risk-taking is nothing to be proud of. There is no indication that Hayden will bring new integrity to
Hayden's defense of the NSA's warrantless surveillance program was incredible. When questioned about the Fourth
Amendment's standard for searches and seizures, Hayden assured the senators that he had consulted with his relatives who
are in law school for legal advice.
The Fourth Amendment says the people shall be secure from unreasonable searches and seizures, and that no warrant shall
issue but upon probable cause. For more than a century, the Supreme Court has held that in order to be reasonable, a
search or seizure must be supported by a search warrant based on probable cause and issued by a judge. Only when certain
narrowly-defined exceptions apply can the government dispense with a warrant.
Hayden and his law student relatives have reversed that presumption. He told the senators that only reasonableness, not
a warrant, is necessary to intercept our private communications. Hayden said the NSA uses a probable cause standard. But
the Supreme Court has consistently declared that a judge must determine whether probable cause exists.
When confronted with USA Today's report that the NSA is collecting data on tens of millions of Americans, monitoring
the calls we make and receive, Hayden refused to confirm or deny it.
Two of the long-distance companies named in that article, Verizon Communications and BellSouth, both facing lawsuits
for invasion of privacy, have denied giving the government these records. AT has refused comment.
Interestingly, Bush issued an executive order on May 5 that allows Director of Intelligence John Negroponte - Michael
Hayden's boss - to authorize a company to conceal activities related to "national security." Thus, we cannot trust the
denials by Verizon and BellSouth.
Like Bush's warrantless eavesdropping on calls where one party is abroad, the NSA's massive data collection is illegal.
Both of these programs violate the Foreign Intelligence Surveillance Act, or FISA, which clearly requires a warrant
issued by a FISA court judge.
It is illegal for the NSA to collect phone numbers from phone companies unless the FISA court authorizes it.
Telephone records that show what numbers have called a specific telephone are captured by a "trap and trace" device. A
"pen register" shows what number a specific telephone has called.
The law on pen registers and trap and trace devices requires that a court order be obtained either under FISA or Title
III, the criminal wiretap law.
In order to intercept communications, the NSA would have to demonstrate to the court that the person whose calls are
being targeted is an agent of a foreign power or that the information is relevant to an ongoing terrorism investigation.
The Patriot Act allows the FBI to use a national security letter - a kind of administrative subpoena - to obtain these
records. But Congress specifically withheld this subpoena power from the NSA, which must convince the FISA court that
the information is relevant.
There is no evidence that NSA has obtained court orders before obtaining the phone records of millions of Americans.
There is evidence, however, that the FBI is using national security letters to go after journalists critical of the
administration. Brian Ross from ABC News told Amy Goodman on Democracy Now! that the government's methods are changing
the way he operates. It makes his work "very, very difficult," he said. "And, you know, you sort of have to start
thinking, I guess, like some sort of Mafia capo," Ross noted. "You make your phone calls with bags of quarters at pay
phones, if you can find them anymore. It's chilling to say the least." So much for a free press.
Last year, the FBI issued a total of 9,254 national security letters, targeting 3,500 citizens and legal residents.
In October 2002, while serving as NSA director, Hayden misled Congress about the extent of the NSA's warrantless
domestic surveillance. Senator Ron Wyden (D-Ore.) told Hayden at the hearing, "I now have a difficult time with your
Earlier this year, Hayden made more misleading statements in an appearance before the National Press Club. He said,
"The intrusion into privacy is also limited: only international calls." In fact, the NSA is collecting data on millions
of purely domestic calls.
Hayden ducked several questions, deferring his answers to the closed session that followed the public hearing on
Thursday. Senators who hear his secret testimony are forbidden to publicize it. Hayden refused to publicly answer seven
questions posed by Senator Dianne Feinstein (D-Calif.) about whether the NSA has sought FISA warrants for pen register
and trap and trace devices; whether terror suspects in secret CIA prisons are likely to remain incommunicado until the
war on terror ends; whether there is periodic review of what useful intelligence can be gathered by interrogations of
terrorists held for years with no contact with Al Qaeda; whether "water boarding," recently classified as torture by the
UN, is acceptable; whether the CIA will obey laws and treaties in light of the Detainee Treatment Act; whether Hayden
agreed with the CIA inspector general's conclusion that certain interrogation techniques constitute cruel, inhuman or
degrading treatment prohibited by the Convention Against Torture; whether Hayden agreed with estimates that Iran is some
years away from nuclear weapons capability; and whether the CIA has received new guidance from the Justice Department
about acceptable interrogation techniques since the passage of the Detainee Treatment Act.
Although Hayden pledged objectivity in his opening statement, he let slip his real intention under questioning by
Levin. Hayden said the war on terror "is fundamentally a war of ideas. And we have to skew our intelligence to support
the other elements of national power as well." Hayden admitted he will skew the intelligence to fit Bush's agenda.
During the hearing, Wyden nailed it. He asked Hayden, "Where is the independent check, General, the independent check
that can be verified on these programs that the newspapers are reporting on?"
James Madison wrote in 1822: "A popular Government without popular information or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be
their own Governors must arm themselves with the power which knowledge gives."
General Michael Hayden as CIA director will see to it that we continue to be kept in the dark about how our liberties
are swiftly vanishing. The future of our democracy is at stake.
Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive
vice president of the National Lawyers Guild, and the US representative to the executive committee of the American
Association of Jurists.