A Silver Lining in Bush's New CIA Pick?

The decision taken by President Bush to replace Porter Goss as director of the Central Intelligence Agency (CIA) was long overdue. Goss was one of the worst possible choices to hold such a critical position, in such a critical period of our nation's history. The many failures of the CIA in the years and months leading up to the terrorist attacks on the United States that occurred on Sept. 11, 2001, were illustrated in vivid Technicolor on that day.

And yet, in responding to these failures, the president not only gutted the CIA by creating an additional layer of bureaucratic morass known as the national intelligence director, thereby diluting the influence and authority of the CIA director, but then appointed a partisan political figure, Porter Goss, to the helm of this scuttled ship. Mr. Goss' tenure will go down in history as one of the worst ever (followed closely by that of George Tenet). That Goss needed replacing goes without saying. But the choice to replace him, Lt. Gen. Michael Hayden, is mindboggling.

I'm not one of those who line up against the appointment of Gen. Hayden because he is a military officer. I have too much respect for the military and those who wear the uniform of the United States of America to ever collectively impugn their integrity by suggesting that the fact that a person -- an intelligence professional, no less -- is on active duty somehow makes him or her less fit to head the CIA.

Too many men and women of honor, serving on active duty, have held positions within the CIA for the idea that one's status vis-a-vis the armed forces somehow limits their ability to perform within the CIA. In fact, had Gen. Hayden been nominated for the position of CIA director prior to Sept. 11, 2001, I would have been a big supporter. After all, as an officer of active duty, he had sworn to uphold and defend the Constitution of the United States against all enemies, foreign and domestic, an oath I find very attractive when dealing with issues of intelligence that often blur the line between national security and individual civil liberties. In such situations, the only protection we the people have from abuses of power and authority is the Constitution and those sworn to protect it.

In the immediate aftermath of 9/11, Gen. Hayden had gone on the record regarding how assiduous the National Security Agency (NSA) was when it came to protecting the Fourth Amendment rights of Americans. This was at the time that he served as director at the NSA, America's largest spy agency, which, among its primary institutional duties, intercepts and monitors communications relevant to America's security, (i.e., "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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized").

The abuses of power and authority that had occurred from the 1950s through the mid-1970s by the intelligence and law enforcement services of the United States, including the NSA, were the subject of investigations conducted by congressional committees headed by Sen. Frank Church and Rep. Otis Pike, the consequences of which were sweeping reforms that limited the ability of the NSA and other agencies to violate the Fourth Amendment protections afforded American citizens. The end result of these investigations was the Foreign Intelligence Surveillance Act, or FISA, which created a framework, complete with a special court, to approve and monitor any activities undertaken by U.S. intelligence agencies that might construe a violation of an American citizen's Fourth Amendment rights.

Gen. Hayden, in an interview given to the media in 2003, claimed that the NSA was very careful in how it did its job, especially when it came to protecting the rights of Americans. "After Church and Pike, on this question, the ball and strike count on the agency is no balls and two strikes," Hayden said. "We don't take any pitches that are close to the strike zone. We are very, very careful. We can't go back to the American people with, "'Oh, well, we're sorry for this one, too.' We don't get close to the Fourth Amendment."

Of course, it turns out that Gen. Hayden is a liar. At the same time he was providing his glossy picture of NSA operations to CNN reporter David Ensore, Hayden knew that he had been, since early 2002, been conducting communication intercept operations under a presidential order that circumvented the FISA system he so falsely applauded, and that the Fourth Amendment rights of all Americans were under the direct assault of an intelligence agency so large and so secret it was, and is, virtually impossible for Congress to conduct even a modicum of oversight.

We now know that Hayden's attack on the Constitution goes far beyond the "limited program" described by President Bush when news of the program first leaked out in late 2005. The warrantless wiretap effort created by Gen. Hayden represents the most massive information collection effort ever targeted against American citizens, operating with a scope and depth that literally leaves almost no American unaffected.

What are we Americans to do? Congress has all but abrogated its constitutional oversight responsibilities mandated by the Constitution. The Senate Select Intelligence Committee has ceased to function in any capacity as an oversight body, with Sen. Pat Roberts, R-Kan., and Sen. John D. Rockefeller, D-W.V., doing nothing to protect their constituents from the abuse of power taking place at the White House. The same can be said of Reps. Pete Hoekstra, R-Mich., and Jane Harmon. D-Calif., the chairman and ranking Democrat, respectively, on the House Intelligence Committee. The best Congress can muster is a weak threat by Sen. Arlen Specter, R-Penn., to withhold funding for the NSA unless the Bush administration is more forthcoming in responding to requests by Congress for information about the warrantless wiretap program. Russ Feingold, D-Wis., acknowledges that what President Bush has done is unconstitutional, and therefore illegal, but calls for "censure" of the president when impeachment is in order.

The complicity of the Republican majority in Congress (Specter aside) is understandable (yet unacceptable) given the partisan divisions that exist. However, the silence of the Democrats is deafening, only underscoring the reality that, at a time when a nation screams for voices of responsibility in the face of imperial overreach at home and abroad by a president long out of control, the best mainstream Democrats can offer is a promise to be "more hawkish" on issues of national security than their Republican counterparts. If the Republican Party won't seek to heal itself by reigning in the abuses of power conducted by the Bush administration, then it clearly demonstrates that it, as an institution, places partisan politics above constitutionally mandated checks and balances between the executive and legislative branches of government. And if the Democrats who are in power aren't willing to step into the void, then perhaps it's time a new generation of Democrats was elected in their stead.

This is why the candidacies of political insurgent "newcomers" like Marcy Winograd, a progressive Democrat challenging Jane Harman in California's 36th District are so important. As a conservative Republican, Marcy and I do not see eye to eye on a number of domestic issues. But on the larger picture of constitutional protections afforded American citizens, I appreciate her perspectives in challenging those for not holding the system accountable.

Unfortunately Jane Harman has been passive in the face of abuse of power. She is the senior Democrat on the House Intelligence Committee and yet has acted more like a "good partisan Republican" than a defender of individual civil liberties, not to mention national security (Harman voted in favor of the War in Iraq, as well as the Patriot Act).

If America is going to be in a position to heal the wounds brought on by the abuses of the Bush administration, then it will be up to Congress to lead the way. The Republican Party has shown itself incapable of respecting the separate but equal distinctions the Constitution draws between the executive and legislative branches of government, allowing for the unacceptable concentration of power in the hands of a president and administration that operate increasingly in imperial fashion. The only hope to break this "imperial presidency" is to create friction within Congress, and in all likelihood it will happen only if a Democratic majority in the House of Representatives is elected this November. But if the Democrats achieve a majority with people who are too often in lockstep with the Republicans, then it will all be for naught.

In a way, it could be a good thing that President Bush has nominated Gen. Hayden as the next director of the CIA. While Congress may fumble when it comes to confronting Hayden and the Bush administration on the issue of warrantess wiretaps and Fourth Amendment rights, the American media should have a field day.


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