With the nomination of Gen. Michael V. Hayden to direct the Central Intelligence Agency before the Senate, the question that lingers in the air is whether he should be penalized for the trespasses of the president who chose him. Unless the members of the Senate Intelligence Committee uncover new derogatory information about him or his conduct as director of the National Security Agency, then the general's nomination should be approved as expected next week.
But that doesn't mean the senators should simply accept the warrantless wiretapping programs undertaken by the NSA at the president's order. What the NSA has done for the past five years may well violate not only the Fourth Amendment but a host of lesser laws, too. Moreover, the Bush administration's claim that the president has the inherent right to ignore the Bill of Rights and flout the law demands an aggressive response from Congress. The Senate and House should undertake a full investigation of those programs at a future date -- when one or both houses of Congress are under different leadership.
Yet while the president certainly deserves to be investigated (or worse) for his regime's apparent misconduct, the Hayden nomination is not the most appropriate forum for that reckoning. The nomination process is meant to determine whether the general is qualified to serve as CIA director, whether he has been truthful in his previous testimony before the Senate and how he intends to rebuild the agency.
Last April, Hayden came before the intelligence committee to be confirmed as deputy director of national intelligence under Director John Negroponte. At the time he testified that the NSA, which he then ran, had pursued its mission "absolutely in compliance with all U.S. law and the Constitution." During his confirmation testimony he elaborated on that answer. Government lawyers had assured him, he said, that his agency's expanded wiretapping program after 9/11 met legal and constitutional standards.
In the same breath, he alluded to "Article II" of the Constitution, which is shorthand for the president's war-making power. In other words, Hayden is shielding the NSA program -- and himself -- behind the same arguments used in the infamous Justice Department "torture memo." If the president says to do it, it isn't illegal, to paraphrase Richard Nixon's version of the same bad idea. What Hayden said is that he believed that the president was giving him a lawful order, and that the lawyers he relied upon told him so.
Was Hayden responsible for determining whether the Bush administration was violating the Constitution and the law? In the first instance, that was the responsibility of the attorneys general, both of whom failed in carrying it out; in the second instance, that responsibility belongs to Congress and the courts, which have done much less so far than they should.
Did Hayden invent the legal theories that supposedly invest Bush with dictatorial powers in wartime? That dubious honor belongs to lawyers in the White House and the Justice Department. Should the Senate reject Hayden to make a point of the alleged illegality of the NSA program? That would be premature, when the senators have scarcely begun to investigate the program. Even worse than premature and unfair, it would be stupid.
While a number of senators in both parties are understandably angry over the warrantless wiretaps, they aren't inclined to make Hayden take the blame for what the president ordered him to do. They realize that any impulse to punish him for Bush's sins -- or his role in concealing them -- must be weighed against the opportunity to rebuild the CIA with someone as qualified as Hayden. It is imperative to repair the immense damage done by former Director Porter Goss and his entourage over the past two years. There probably won't be another chance.
Almost as soon as the White House announced Hayden's appointment came signs that the experienced analysts and operatives purged by Goss' partisan goons might return to serve under a new director. These are the people who were pushed out on political grounds because they were deemed insufficiently loyal to Bush and insufficiently enthusiastic about war in Iraq. Apparently those officers believe Hayden will foster or at least permit dissent from the official White House line. Freedom to disagree is the prerequisite for sound analysis, of course, yet that is exactly what Goss and his aides tried to suppress with their authoritarian commands and directives.
Another promising sign is that Hayden's deputy director for intelligence will probably come from the State Department's Bureau of Intelligence and Research -- a stronghold of dissent from the lies and distortions pushed to justify the invasion of Iraq. Along with the return of officials and analysts purged by Goss, such a choice may indicate that Hayden's CIA will resist rather than acquiesce in the bad intelligence and stupid ideas promoted by Vice President Dick Cheney and Defense Secretary Donald Rumsfeld.
In other words, despite his military uniform, Hayden is likely to be more independent of the Pentagon and the White House than Goss was. It will help that, unlike Goss, he actually knows what he's doing.
Unlike so many of the hacks placed in charge of important government agencies during the past six years, Hayden possesses powerful qualifications for the job. He is also wise enough to treat the Senate with respect. He isn't trying to push his way through with bluster and bullying.
By the admittedly dismal standards of the Bush administration, then, Hayden is an unusually good appointment. To reject him will only encourage Bush to send up more awful nominees -- and that would be counterproductive, since, despite his pathetically low approval ratings, Bush is almost certain to remain president for nearly three more years.
Besides, Hayden is smart enough to understand the political environment in which he must operate now. He knows that Congress is likely to demand both better results and more transparency from the nation's intelligence agencies than they did in the first few years after 9/11. Although it would be nice if we could depend on the CIA director to safeguard our civil liberties, that certainly wouldn't be prudent. That trust is vested in the president, Congress and the courts -- and when they betray their oath to uphold the Constitution, it is they who should be held accountable.