Outcry as Bush Nominates Illegal Spying Advocate for CIA

The Progress Report. Posted May 8, 2006.

On Friday, Porter Goss unexpectedly resigned as head of the CIA, leaving behind an "utterly irresponsible" 18-month tenure at the agency and unanswered questions about his hurried departure. Today, the White House nominated deputy director of national intelligence Lt. Gen. Michael Hayden as Goss's successor. "Bottom line, I believe he's the wrong person, the wrong place, at the wrong time. We should not have a military person leading a civilian agency at this time," said House Intelligence Committee Chairman Peter Hoekstra (R-MI) yesterday on Fox News Sunday, voicing the bipartisan concerns of lawmakers.

Hayden has demonstrated a fundamental misunderstanding of the Constitution and has misled Congress under oath. His close ties to Vice Presidency Cheney, Director of National Intelligence John Negroponte, and the Department of Defense have led many members of Congress to conclude he is wrong man to gain the trust of the intelligence community and clean up the CIA after the "chaos" left by Goss.


'Under the sway' of Rumsfeld

Over the weekend, a bipartisan group of lawmakers spoke out opposing the nomination of a military officer to a civilian agency. If Hayden is confirmed, "military officers would run all the major spy agencies, from the ultra-secret National Security Agency to the Defense Intelligence Agency." One former intelligence official said, "It seems to me the Pentagon grows even stronger now.... Every time there's a change, it moves in that direction." "I think...putting a general in charge is going to send the wrong signal through the agency here in Washington, but also to our agents in the field around the world," said Hoekstra yesterday, who also added that there will "be the perception in the CIA" that Hayden would be under the sway of Defense Secretary Donald Rumsfeld.

One of Goss's largest challenges at the CIA was gaining the trust of career officers, who resented that he brought in a group of his unqualified aides -- called "the Gosslings" by CIA insiders -- and appointed them to top positions. Even if Hayden retires from the military, he is unlikely to be trusted as the committed independent advocate that the CIA needs. "Now, just resigning commission and moving on, putting on a striped suit, a pinstriped suit versus an air force uniform, I don't think makes much difference," said Sen. Saxby Chambliss (R-GA). Senate Intelligence Committee Pat Roberts (R-KS), who in 2005 called Hayden "outstanding," yesterday refused to offer his endorsement of the administration's nominee: "I'm not in a position to say that I am for General Hayden and will vote for him."

Hayden unfamiliar with the Fourth Amendment

Hayden has demonstrated an "astounding lack of knowledge" about his job as an intelligence official, fundamentally misunderstanding constitutional protections. In a speech on Jan. 23, Hayden boasted that he was knowledgeable on the Fourth Amendment: "[B]elieve me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth."

But in a question at that same speech, Knight-Ridder reporter Jonathan Landay noted that Hayden "repeatedly referred to the Fourth Amendment's search standard of 'reasonableness' without mentioning that it also demands 'probable cause'"; Hayden continued to deny that the amendment contained any such clause. When Landay asked Hayden if the amendment contains the phrase "probable cause," Hayden bluntly replied, "No." (Read the full text of the Fourth Amendment here.)

Lying to Congress

In January, Karl Rove promised to make the midterm elections focus on wiretapping. Hayden -- as one of the administration's "most forceful" defenders of President Bush's warrantless domestic eavesdropping and director of the National Security Agency (NSA) when the program was implemented in 2002 -- will likely bring that issue to the forefront. "We have no concerns about a public debate over the terrorist surveillance program," said a senior White House official. Hayden misled Congress and the public about the administration's domestic spying. In his Oct. 17, 2002 testimony, Hayden told a congressional committee that any surveillance of persons in the United States was done consistent with the Foreign Intelligence Surveillance Act, which required a court-approved warrant for wiretapping. As American Progress Senior Fellow Morton Halperin pointed out, "At the time of his statements, Hayden was fully aware of the presidential order to conduct warrantless domestic spying issued the previous year," making Hayden's misleading statements to Congress illegal.

An Agency in Turmoil

Goss's chaotic departure encapsulated his chaotic tenure. "A 'reform' that was supposed to improve coordination and coherence among our intelligence agencies has had the opposite effect," said Robert L. Hutchings, former National Intelligence Council chairman, about Goss's term. While the Bush administration has tried to spin Goss's resignation as a lost turf battle with Negroponte, there has been little indication that Goss ever fought hard against the administration for his turf.

In reality, Goss's tenure was noted for "bleeding talent" away from the struggling agency: "At least a dozen senior officials -- several of whom were promoted under Goss -- have resigned, retired early or requested reassignment. The directorate's second-in-command walked out of Langley last month and then told senators in a closed-door hearing that he had lost confidence in Goss's leadership." Now the agency has been drawn into a federal criminal investigation over Kyle "Dusty" Foggo, the CIA's third-ranking official, handpicked by Goss.

The CIA Inspector General has opened an investigation into Foggo's contacts with defense contractors accused of bribing lawmakers. Foggo has admitted that he attended poker games -- where prostitutes may have been present -- set up by Brent Wilkes, who is implicated in the bribery of former Rep. Randy "Duke" Cunningham. Additionally, Frank Bassett, a CIA agent identified as "Nine Fingers," was also at the poker parties and was a former Goss aide. "Supposedly the [Cunningham] scandal was the last straw [in deciding that Goss should resign].... This administration may be on the verge of a major scandal," said a congressional source involved in oversight of U.S. spy agencies.

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