Listening in on Hayden

In language that might baffle even NSA analysts, the nominee for CIA chief signaled agency reform -- but also backed Bush's power grab.

Walter Shapiro
May 19, 2006 4:44PM (UTC)

It was that rare high-stakes Senate confirmation hearing where both the witness and his congressional questioners devoutly wished that they were somewhere else.

The reluctance of the nominee, would-be CIA director Gen. Michael Hayden, was understandable, even though his confirmation to replace the inept Porter Goss seems preordained. Hayden worships at the shrine of unchecked presidential power and appears to consider Congress a mostly irrelevant, but sometimes annoying, political encumbrance. During Thursday's all-day hearing, Hayden tellingly referred to Congress as "the second branch of government" -- an odd put-down since the co-equal powers of the legislative branch are delineated in Article One of the Constitution.


Most members of the Senate Intelligence Committee displayed an ill-concealed impatience with the public ritual of a televised hearing, preferring to quiz Hayden in a promised end-of-the-day secret session where they might learn all the fun cloak-and-dagger stuff.

Hayden adroitly played on these fantasies of a tell-all closed-door hearing by deferring all troublesome questions until that magic moment when they all could lock the door and throw away the key. California Democrat Dianne Feinstein asked Hayden whether he agreed with Goss that "waterboarding" (a sadistic interrogation technique that brings prisoners to the brink of drowning) was a legally permissible CIA practice. "Ma'am," the always courteous general replied, "let me defer that to closed session, and I would be happy to discuss it in some detail." Exactly why national security requires Hayden to hide his attitudes about "waterboarding" from al-Qaida and the American people was never explained.

In theory, the Hayden hearing should have been the stuff of high Washington drama -- a remake of "Advise and Consent" for the age of terrorism. Here was Hayden, the former director of the National Security Agency, who had presided over the NSA's almost certainly illegal warrantless eavesdropping program. Goss had just resigned under murky circumstances, while Dusty Foggo, the No. 3 person at the CIA, had also stepped down just as he was being linked to an old-fashioned congressional bribery-and-prostitution scandal. Then there was the minor matter of the manipulation of CIA intelligence before the Iraq war coupled with ominous speculation about the threat from Iran's nuclear program.


Instead, matters were so fogged with senatorial euphemism and Hayden's evasiveness that by early afternoon most of the seats in the cavernous main Senate hearing room were empty and the press contingent had dwindled to roughly a dozen. But despite the lack of high-decibel exchanges or major revelations about the NSA eavesdropping program, the hearing had its moments.

For all of Hayden's narrow competence in dealing with spycraft and the bureaucratic structures that surround it, the general spent the day fighting a losing battle with the English language. He kept stumbling over his metaphors, such as this made-for-Bartlett's assertion: "Once you institutionalize thinking outside the box, it turns to dust in your hand." Hayden also tried to justify one of his many misleading public remarks about the extent of the NSA's eavesdropping program by explaining, "I pointedly and consciously downshifted the language I was using." With Hayden as a linguistic guide, public officials never need lie nor dissemble again. They merely have to "downshift" their language.

But what remains most troubling about Hayden, as both an Air Force general and the next CIA director, is his misunderstanding of the Constitution when it comes to executive power. Hayden seems to believe that if a president authorizes anything, it is automatically legal -- a doctrine that back in the 1950s and 1960s led the CIA to plot assassinations and engineer coups.


During gentle questioning by loyal Republican Orrin Hatch, Hayden equated the 1978 congressional legislation that set up special courts to provide warrants in national-security wiretapping cases with George W. Bush's 2001 secret executive order that stated that such legal niceties were irrelevant in the war on terror. As Hayden put it, "The way I describe it, Senator, is I had two lawful programs in front of me." But Bush's disdain for warrants and judges depends on a dangerously expansive and legally dubious view of the president's war-making powers under the Constitution.

Hayden appears to labor under similar confusion about the meaning of the First Amendment. Attacking press leaks about the CIA's activities in his opening statement, the general thundered, "True accountability is not served by inaccurate, harmful and illegal public disclosures." But then, as Hayden made clear, the press does not need to perform its watchdog function, since as CIA director, he would dedicate himself to "re-establishing the agency's 'social contract' with the American people."


But for all these troubling assertions by Hayden, there were also encouraging signs during the lengthy hearing that the general grasps some of the institutional problems that have bedeviled the CIA. Hayden spoke persuasively about the bureaucratic difficulty in focusing the agency on long-term threats in an era of 24-hour news cycles. Hayden referred to his version of the "CNN effect," which he defined as a situation "where our customers" -- that is, the White House -- "seem to want us to have the same kind of pace that you get on Headline News." That insight alone suggests a sharp break with the Goss era during which the CIA director acted as if the agency's primary mission was working on the president's daily intelligence brief.

Conclusions about the strengths and weaknesses that Hayden would bring to the CIA director's job have to be tentative for those of us unenlightened citizens who have to judge the general solely by his public comments. For who knows how many of his statements during Thursday's open hearing were, er ... downshifted from the truth? Things, of course, are different when someone like Hayden testifies in a secret session. At least, that is the fantasy that Congress nurtures as it clings to the outmoded notion that the CIA is subject to legislative oversight.

Walter Shapiro

Walter Shapiro, a Fellow at the Brennan Center for Justice at NYU School of Law, is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked as Salon's Washington bureau chief, as well as for The Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale University. He can be reached by email at and followed on Twitter @MrWalterShapiro.

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