His program of illegally spying on U.S. citizens is sufficient justification for opposing the nomination of Michael Hayden to be the Director of the CIA. His failure to prevent Al Qaeda's attack on the U.S. is more than enough to call for his rejection. He became the director of the National Security Agency in 1999, and cannot attempt to use the standard Bush denial of responsibility for 9/11, - their "brief" tenure at the White House by that date. At his up-coming hearings, many will want to hammer him on the illegal wiretapping, which would be perfectly justified. But it would be more effective to emphasize his participation in so much that has gone wrong in the last five years, as well as his own feckless, dishonest performance.
In his presentation at the National Press Club in January of this year; Hayden, who the press likes to describe as a straight talker, was disingenuous and evasive. In that presentation, he frequently referred to suggestions and comments made by the 9/11 Commission, as if they were justifications for his "surveillance" program. But of course that report came out long after Hayden had begun his 'eavesdropping.' In his defense of the program, he incorrectly interpreted the Constitutional standard that must be met in order to search; but Glenn Greenwald (and others) have argued against this 'error' far better than I could.
Hayden also defends the program by insisting that "the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978." Like the rest of the administration, he neglects to mention how often the law has beeen amended since 1978. But it is doubly despicable for him to do ignore this. If FISA was in fact outdated, it was his job, as the director of the NSA since March of 1999, to ensure that it was updated.
In the speech he stated that "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 operatives in the U.S., and we would have identified them as such." He also explained that the agency had already had legal "authorities" for such a program. If in fact the program was legal, who is responsible for it's not being in effect?
His presentation repeated a theme commonly used by the Bush administration, and one that in the end helps define their incompetence :
"There is one other area in our pre-September 11th performance that has
attracted a great deal of public attention. In the hours just prior to the
attacks, NSA did obtain two pieces of information suggesting that individuals
with terrorist connections believed something significant would happen on
September 11th. This information did not specifically indicate an attack would
take place on that day. It did not contain any details on the time, place, or
nature of what might happen. It also contained no suggestion of airplanes being
used as weapons. Because of the processing involved, we were unable to report
the information until September 12th. To put this into some perspective,
throughout the summer of 2001 we had more than 30 warnings that something was
imminent. We dutifully reported these."
So what happened with the "dutifully reported" 30+ warnings? 30+ warnings, and 0 responses? Why is it that no one is to blame that these went unheeded?
According to Wikipedia, the NSA is the largest U.S. government
intelligence agency - even bigger than the CIA. Details as to it's size or budget
are not available to the public, but it's offices in Maryland have
their own exit off the Interstate and have parking for 18,000 cars. It
is the world's largest employer of PhD's in mathematics, as well as the
second largest electricity consumer in the state of Maryland. It's big,
and it had to be responsible for a lot of the "intelligence" that led
us into war in Iraq. At what point must the Director the agency admit they got it wrong?
Michael Scheuer was with the CIA for 22 years. He was the head of the bin Laden Unit from 1996-1999, and has made it clear that the desire of the NSA to defend its 'Turf' meant that the CIA could only get summarized information on intercepted communication between Al Qaeda members. He makes a devastating argument that the CIA would have been much more effective in fighting Al Qaeda if it had had access to original material that the NSA refused to give them. Hayden strikes again.
To most of the country the notion of upholding the Constitution is quite abstract. Bush is hoping that we will fight against Hayden's nomination based on arguments which they'll characterize as, at worst, slight excesses in their successful fight to protect the Homeland: "eavesdropping" or "surveillance."
But with his approval ratings at 31% it would be folly not to emphasize the Bush administration's failings that have brought them to such a level: dishonesty, incompetence, and a refusal to take responsibility for mistakes.
Updated slightly on May 10 for grammatical & stylistical amelioration.