Should Gen. Hayden Be Confirmed or Court-Martialed?

"Court-martialed," says one highly-respected former DIRNSA (which, for the uninitiated, stands for "Director, National Security Agency"). The comment came amid a private burst of indignation at the news that Gen. Mike Hayden had bowed to administration pressure to skirt the law and violate what until then was the NSA's "First Commandment" - Thou Shalt Not Eavesdrop on US Citizens.

Another highly respected former DIRNSA, Adm. Bobby Ray Inman, on May 8, expressed serious reservations over the administration's flouting of the Foreign Intelligence Surveillance Act (FISA) of 1978 by ordering warrantless eavesdropping on Americans. During a New York Public Library panel discussion including New York Times reporter James Risen, who originally broke the eavesdropping story, Inman said, "In my view, this activity was not authorized by a [congressional] resolution.... There clearly was a line in the FISA statutes which says you couldn't do this." Inman also pointed out the "extra sentence put in the bill that said, 'You can't do anything that is not authorized by this bill.'"

Adm. Inman added, "My problem is not going through the Congress to revise the statute," if FISA needed to be amended to deal with issues not anticipated in 1978. He spoke proudly of the earlier ethos at the NSA, where "it was deeply ingrained that you operate within the law and you get the law changed if you need to." As for now, Inman insisted, "What you want is to get away from this idea that they can continue doing it." He placed the blame squarely on Vice President Dick Cheney, whose attitude, he said, has not changed from when he was chief of staff for President Gerald Ford. Inman gave this account of Cheney's input:

"We don't need law. The president has authorized these in the past and can authorize them now."

Inman added that this is "why no activity moved forward to pursue changing the law, to do it in the courts." Whether the president changes course and decides to work with Congress will depend on "whether the president walks away from the vice president on this issue."

But the George W. Bush administration did take soundings in Congress. And this has been known since December 19, 2005, when attorney Alberto Gonzales, in an unguarded moment, responded to a question as to why - if FISA was inadequate - the administration did not seek new legislation to enable it to conduct such a program legally. Why the "backdoor approach?" he was asked. Gonzales's response was a masterpiece of casuistry, but it escaped wide notice:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past - certain members of Congress - as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

You do not need a law degree to ask the obvious question: If you believe you already had congressional authorization, why approach Congress for authorization? Earlier, at the December 19 press conference, Gonzales had adduced a twin argument that the eavesdropping program was legal: (1) Congress's post-9/11 authorization to use force; and (2) the president's "inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity." (During his confirmation hearing before the Senate on May 18, Gen. Hayden referred only to the commander-in-chief-Constitution Article II-argument, and it appears that the administration has now recognized that even though the Article II argument is quite a stretch, the force-authorization approach stretches beyond the breaking point.)

On December 19, Gonzales was asked a second time: "If FISA didn't work, why didn't you seek a new statute that allowed something like this legally." Gonzales read from the same notes, but then added the disingenuous argument that going to Congress would have risked revealing the program and killing it - which has become a favorite administration line. Inman addressed that argument directly on May 8 saying, "I don't happen to think it's valid." And there are few, if any, top intelligence officials with as much experience in this area as Inman has.

Add to this that in the immediate post-9/11 atmosphere in which the draconian Patriot Act sailed through Congress, it seems clear that the skids would have been greased for any sensible proposal to amend the already flexible FISA. Indeed, panelist James Risen quipped, "In October 2001 you could have set up guillotines on the public streets of America." It is hard to escape the conclusion that the program (since dubbed "The Terrorist Surveillance Program") was of such scope and intrusiveness into our civil rights that it had not a prayer for passage.

I am sorry to have to be the one to tell you all this. The New York Times has been reporting all week on the Hayden nomination, and had a sensible editorial on the subject on May 19. But what about previous NSA director Inman's contribution to the discussion? Did James Risen forget to file a story? Or did his editors deem it short of the threshold of All The News That's Fit to Print? Or did a Risen story get put in the "Hold Until After November" file? Was no one on the Senate Intelligence Committee aware of Inman's remarks even though they were available ten days before Hayden's nomination hearing Thursday? What about the Washington Post, whose ads say, "If you don't get it, you don't get it." Well, you would not have gotten it there either.

How did I learn all this? From a story on Steve Clemons's blog, The Washington Note, which included a link to a transcript of the May 8 New York Public Library event: "Listening In: Eavesdropping and the National Security Agency." Amy Goodman also mentioned it on Democracy Now on May 17.

So What About Hayden?

On CNN's Lou Dobbs Tonight on May 17, Adm. Inman gave Gen. Hayden a relatively favorable review, despite Hayden's willingness to obey what Inman implicitly said were illegal orders, and Hayden's willingness to take the lead in defending the eavesdropping program. It is likely that Inman's overly charitable approach can be attributed to professional courtesy. Inman himself certainly would not have behaved as Hayden did. A thorough professional, Inman would not have put on the back burner his oath to defend the Constitution of the United States and the universal obligation not to obey an illegal order.

And there is more. The Cheney-esque ethos of contempt for Congress still rules, facilitated by party partisans in Congress. House Intelligence Committee Chair Pete Hoekstra, for example, speaks of "vigorous oversight" of the NSA, but evidence is lacking. Late last year, for example, the current head of the NSA, Army Lt. Gen. Keith Alexander, deliberately misled House Intelligence Committee member Rush Holt (D-NJ) on the eavesdropping program. On December 6, Rep. Holt called on Alexander and NSA lawyers to discuss protecting Americans' privacy. They all assured Holt that only with a court warrant would the NSA eavesdrop on Americans.

Later that month, when the disclosures in the New York Times made it clear that Gen. Alexander had deliberately misled a member of his committee of jurisdiction, Hoekstra merely suggested that Holt write a letter to Alexander to complain. The inescapable message to Alexander? Fear not: Hoekstra the fox is watching the hen house. Alexander was accorded the privilege of briefing the Senate Intelligence Committee on NSA operations the day before the hearing on Gen. Mike Hayden's nomination to be the next director of the CIA. There is no sign that any of those Senators were gauche enough to ask Alexander why the general had lied to one of their House counterparts. And there is every sign that Roberts's committee will give its approval to the president having another yes-man as director of the CIA.

It is interesting, if not surprising, that Senate Intelligence Committee chairman, party loyalist Pat Roberts, decided to call no previous NSA director to testify at the Hayden nomination hearing. Adm. Inman would have been the most experienced and able witness (especially in view of his intimate knowledge of the history of FISA). Roberts would have been well aware that for Inman it is one thing to praise Hayden to Lou Dobbs, and quite another to state under oath that Hayden had not already disqualified himself for the job. It is altogether understandable that Roberts would be reluctant to subject a basically honest officer like Inman to withering cross-examination by the likes of Sen. Russ Feingold.

Call my thinking "quaint" or "obsolete," but I can find no excuse for an officer who lets nearness to absolute power, together with hired-gun lawyers, corrupt and blur his oath to defend the Constitution and responsibility not to obey illegal orders. When I was an Army officer, both were drummed into us; and if we reneged on those promises, we were liable to being drummed out. So I would agree with the first former NSA director quoted above. Hayden should be court-martialed, not confirmed. And Alexander, too.

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Ray McGovern served nine CIA directors and seven presidents as a CIA analyst from the administrations of John F. Kennedy to George H. W. Bush. He is co-founder of Veteran Intelligence Professionals for Sanity (VIPS).