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The Spy TrainGen. Hayden's confirmation hearings.

By Emily Bazelon
Posted Thursday, May 18, 2006, at 5:42 PM ET

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The question going into today's confirmation hearing for Gen. Michael Hayden, President Bush's choice to head the CIA, is whether the session will yield a shred or two of new information, or at least new outrage, about domestic eavesdropping and the collection of phone-call records by the National Security Agency, Hayden's home until last year. The revelations in December that the NSA listened in on some domestic communications and this month that it has collected the phone records of tens of millions of Americans have damaged Hayden's "credibility," as Sen. Ron Wyden, D-Ore., puts it. Will Hayden have to answer for this?

Not in open session. Yesterday the Bush administration neatly pre-empted today's public hearing by giving the members of the House and Senate Intelligence Committees a classified briefing on the NSA's eavesdropping program—a first for the majority of them. The administration's decision to cave in and talk to the full committee was a smart one, though the timing was clumsy. Also helpful to the nominee is a closed session scheduled after the open one. This allows Hayden to assure the senators that he can't wait to tell them much, much more—"later"—about whatever they want to know. It's a good dodge.

Which isn't to say that everyone is mollified. Wyden accuses the Bush administration of violating the National Security Act of 1947 by failing to brief the full committee until yesterday. Sen. Olympia Snowe, R-Maine, chimes in when it's her turn. "I happen to believe that Congress was never really consulted in a way that we could perform our oversight role," she says. "If it was good enough to brief the full committee yesterday, why wasn't it good enough five years ago?" Hayden does not answer this question.

Pressed to defend the legality of the NSA's doings, he says that he isn't a lawyer or an expert on constitutional law. Sen. Dianne Feinstein, D-Calif., says she hasn't read any legal opinions by the Department of Justice on some of the NSA's controversial activities and asks if Hayden has any that he could give her. "I have not read a Justice Department opinion as well," Hayden says. He explains that he got a go-ahead from the attorney general and then took the issue "to three guys I trust at the NSA"—guys who are lawyers. "They came back with a real comfort level that this was within the president's authority."

This sounds right, because Hayden is a fan of review, as long as it stays in-house. The inspector general of the NSA did "routine inspections" of the eavesdropping program that monitored some domestic communications. The inspections involved "pulling folders, examining the logic train." He continues, "The folks out there are batting a thousand. No one has said that there's targeting that's not based on probable cause," the constitutional standard for conducting a search in most circumstances. (The sports and train metaphors will repeat themselves later today—fun for everyone.) The point is that Hayden trusts his people, so we should too. Since the eavesdropping and data collection remain shrouded in secrecy, the senators can argue with Hayden only on theoretical grounds.

The senators' other big concern today is fixing the CIA. None of them want to defend the agency in its current battered state, never mind that it's ostensibly been their job to oversee it. Sen. Pat Roberts, R-Kan., complains that in the past, dissenting viewpoints within the CIA—as in, maybe Iraq doesn't have weapons of mass destruction—haven't gotten onto the agency's "assumption train." Roberts isn't sure whether the dissenters belong on the front or the middle of the train, but he doesn't want them to sit in the caboose. This leads to one of Hayden's best moments. When he pushes back against Roberts it sounds real, because he's disagreeing with someone who is so eager to make things easy for him. "If these were known facts you wouldn't be coming to us for them," he tells Roberts, talking about the inherent difficulty of spying. "Everyone has to understand the limits of the art and the limits of the science." This seems a lot safer than the "batting a thousand" line. Hayden says he wants to be a "change agent" who will "transform" the CIA. But he's not promising clairvoyance or an end to screw-ups.

Several senators want Hayden to reassure them that he'll maintain the CIA's independence from the Pentagon and his own from Defense Secretary Donald Rumsfeld. Hayden's military bearing helps him on this front. He sits up straight, talks in staccato bursts, and generally conveys authority. It's all theater, but it's hard to imagine him sitting still for the dismantling of his agency.

Hayden also has a beginner's optimism, He says that when he did his homework about "DOD bumping into CIA," he "got better news than I expected." Much of the friction is due to "inexperience rather than malice." And if the Pentagon wants to shoulder more of the burden of intelligence-gathering in theaters of war like Iraq and Afghanistan, more power to them. "To have DOD step into those responsibilities doesn't seem like a bad thing. There's a happy marriage to be made here." This leaves me with an image of Hayden and Rumsfeld joining hands under a wedding canopy. Hayden would look great in his dress blues. The disgruntled CIA operatives who feel their agency has been shunted to the side could drown their sorrows at the bar.

Hayden gets another crack at defending his record at the NSA just before lunch, when Snowe asks him to tell her how the eavesdropping program got started. Hayden starts going through lines he has already recited at least twice. The Bush administration asked him to step up intelligence collection after Sept. 11. He and his staff looked at "technical feasibility, operational relevance, and what would be lawful."

Then Hayden seems to have a new idea, or at least a new way to express it. He wanted congressional oversight in place from the beginning, he stresses. (He doesn't mention that he apparently decided to limit his congressional audience to a handful of senators and representatives.) "I have a workforce that remembers the 1970s," he says of his NSA staff. Ever since that beleaguered decade, the agency has been operating like a batter with "one ball and two strikes, with the count against it, and we don't take many close pitches." This is the moment that leaves me with no doubt that Hayden will be confirmed. The Senate can never resist a baseball metaphor.

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Emily Bazelon is a Slate senior editor.
Photograph of Gen. Michael Hayden on Slate's home page by Win McNamee/Getty Images.
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