The battle over the Hayden nomination.

The battle over the Hayden nomination.

The battle over the Hayden nomination.

Military analysis.
May 8 2006 6:29 PM

General Knowledge

The battle over the Hayden nomination.

Gen. Michael Hayden. Click image to expand.
Gen. Michael Hayden

What's the story behind Gen. Michael Hayden's nomination as director of the Central Intelligence Agency? And why are key legislators, including Republicans, really lining up to oppose him?

The critics' public rationales are at best incomplete and, in any event, a bit of a ruse. One of the two main complaints, voiced on the Sunday talk shows by members of both parties, is that a military officer should not be in charge of the CIA. (Sen. Dianne Feinstein even claimed, "Federal law stipulates a civilian should run the agency.") The other issue is that Hayden was director of the National Security Agency when it launched President Bush's illegal domestic-surveillance program and, therefore, can't be trusted to balance national security with civil liberties.

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Both matters account in part for the leeriness toward Hayden. But the real reason involves an overlapping slew of turf wars among three factions: the CIA's professional intelligence officers, Donald Rumsfeld's Pentagon, and—especially—John Negroponte's nascent Office of the National Intelligence Director.

Let us first dispose of one myth before it takes hold: There is nothing unprecedented about naming a military officer to run the CIA (six CIA directors in the agency's history have been generals or admirals), nor is there anything improper. The relevant federal statute, 15 U.S.C. Section 403c, states that of the following three positions—CIA director, deputy director, and deputy director for community management—"not more than one" [emphasis added] may be held by a commissioned officer, whether active-duty or retired. In other words, it is legal for one of them to be an officer. In fact, the section expresses "the sense of Congress" that "it is desirable that one of the individuals … be a commissioned officer … or have, by training or experience, an appreciation of military intelligence activities and requirements."

As a cautionary measure, the law further states that a military officer who holds one of these positions "shall not be subject to supervision or control by the Secretary of Defense or by any officer or employee of the Department of Defense."

It is also worth noting, in any case, that Gen. Hayden is unlikely to serve as a Rumsfeld tool. While he ran the National Security Agency, which falls under the Defense Department's formal jurisdiction, he resisted repeated attempts by Rumsfeld to curb his independence. As one Pentagon official told me today, "He is no Rumsfeld kitten."

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Rep. Peter Hoekstra, the Republican chairman of the House Intelligence Committee, certainly knows the law—and Hayden's background—on this matter. Yet he said, "We need to be able to get the unvarnished intelligence, and we need to be able to get it from a civilian"; and, "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."

His real concern, I suspect, is not so much that "a general," but rather that this particular general, is being put in charge—and that the move strengthens not so much Rumsfeld but, rather, Negroponte.

Hayden is not just the former director of the NSA. More to the point, he is the current deputy director to Negroponte. Porter Goss met with Negroponte right before his "resignation" as CIA chief was announced on Friday. By all accounts, it was Negroponte, not President Bush, who told him he had to leave. There were, no doubt, many reasons for Goss' removal: his inability to bring the agency under control, his alienation of career officers (and not just those who opposed Bush's policies), his filling top slots with amateurish, possibly corrupt, cronies.

Whatever tipped the balance against Goss, one incontestable effect of replacing him with Hayden will be the strengthening of Negroponte and the further centralization of the intelligence community inside the White House.

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Last month, Hoekstra said that Negroponte's office was "not adding any value" to the intelligence community, that it simply piled on another layer of bureaucracy. In March, Hoekstra's committee asked Congress to freeze part of Negroponte's budget until he explained his plans to expand his staff.

"We have to strengthen the CIA," Hoekstra said on Sunday. Appointing someone like Hayden, he added, "is exactly the wrong thing to be talking about at this critical moment."

It is hard to say whether the further empowerment of Negroponte's office is a good thing or a bad thing. Too little is known, really, about just what Negroponte does, just how he plans to reform the intelligence community, and just where he stands on what has long been the central internecine dispute within that community—how to divvy up authority on covert operations between the CIA and the Pentagon's Special Operations forces. Rumsfeld has been pushing for a broad expansion of Special Ops' intelligence duties. Goss was trying to stiffen the CIA's clandestine branch, but his sloppy management—and the subsequent departure of several operations chiefs—made matters worse.

A bit of news that may encourage the CIA's defenders (and, once word gets around, maybe Hoekstra himself): reports this afternoon that Steven Kappes will be coming back to the agency as Hayden's deputy. Kappes had been the deputy director of clandestine operations until he resigned at the start of Goss' reign. His return may prompt others to follow—in which case Hayden's appointment may be seen, in retrospect, as rebalancing the intelligence agencies' divisions of power.

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This leaves one further issue that may be genuinely troublesome: Hayden's execution of President Bush's secret domestic-surveillance program. On the one hand, during his tenure as NSA director, from 1999 to 2005, Hayden was insistent, in public and in private, on the NSA's role as interceptor of foreign signals intelligence and on its need to stay away from phone calls, e-mails, and so forth within the United States. In a National Press Club speech in January, shortly after revelations of Bush's secret program, Hayden argued that he had done nothing improper:

The lawfulness of the actual authority was reviewed by lawyers at the Department of Justice and the White House and was approved by the Attorney General. … Frankly, there's a certain sense of sufficiency here—authorized by the president, duly ordered.

A decent case could be made that Hayden was following orders that he was assured were lawful.

On the other hand, during the question-and-answer period of that speech, Jonathan Landay of Knight-Ridder pointed out that the Fourth Amendment requires that a warrant—whether to search Americans' homes or intercept their communications—must be preceded by a finding of "probable cause," which the NSA intercepts under question did not involve.

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Here is the subsequent exchange:

Hayden: No actually, the Fourth Amendment actually protects all of us against "unreasonable search and seizure."

Landay: But the measure is "probable cause," I believe.

Hayden: The amendment says "unreasonable search and seizure."

Landay: But does it not say—

Hayden: No. The amendment says—

Landay: The court standard, the legal standard—

Hayden: —unreasonable search and seizure.

This is startling. Elsewhere in the speech, Hayden said, "If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth." And he doesn't know that it requires "probable cause" as the criterion for "reasonable" search? (To read the amendment for yourself, click here.)

Hayden may have dug his own hole with this one, and it is equally amazing that the Bush White House—already beset with Republican lawmakers seeking to distance themselves from an increasingly unpopular president—didn't conduct due diligence on this point before nominating Hayden.*

The critics in Congress failed in their attempt, earlier this year, to rally opposition to the surveillance program. But Hayden's nomination—especially in the face of impending midterm elections—opens the door once more. Arlen Specter, chairman of the Senate judiciary committee, said of Hayden's confirmation hearings, "We could use them for leverage to find out" more about the NSA's entire program. Hoekstra predicted that this controversy could stretch the hearings out to "three or four months."

Meanwhile, others who oppose Hayden's nomination—for whatever reasons—can be counted on to use the interregnum to make as much mischief as possible. Even Pat Roberts, the usually pliant Republican chairman of the Senate Select Committee on Intelligence, said Sunday, "I'm not in a position to say that I am for Gen. Hayden and will vote for him." When even Roberts sits on the fence with his finger in the air, waiting to see which way the wind blows, the White House should know it's in trouble.

*Update, May 9, 2006: Several lawyers have persuaded me that I was excessively dismissive of Gen. Hayden's take on the Fourth Amendment. Knight-Ridder's Jonathan Landay and I are right that the amendment requires "probable cause" as the basis for a warrant. However, a stack of case law allows certain warrantless searches and seizures, as long as they're not deemed "unreasonable."