General Hayden in Bush's Pocket

The nimble former head of the National Security Agency soft-shoes his way to the CIA

 The CIA must be out of the news—as source and subject. General Michael Hayden, at his confirmation hearing to become CIA director, before the Senate Intelligence Committee, May 18


The CIA has been directly involved in interrogation of prisoners in Iraq, Afghanistan, and its own secret prisons around the world. The agency's kidnappers, through "extraordinary renditions," send suspects to be questioned in countries known, including in State Department annual reports, for torturing prisoners.

The president's CIA choice: "The press damages national security."
photo: whitehouse.gov (video still)
The president's CIA choice: "The press damages national security."

During his confirmation hearing, General Hayden displayed his deep concern for human rights—embodied in the international covenant against torture, which we have signed—when he was asked about these renditions. The administration repeatedly claims that before it outsources these suspects, it gets assurances from the participating nations that they will not torture the prisoners we send.

How, the general was asked, do we validate those assurances? His answer—which I've not seen in any of the coverage of the hearing—was: "Our judgment is whether the torture is less, rather than more, likely" in those countries. If we get more information to the contrary, he added, "we assume more responsibility." (No one asked how he would define "less torture.")

"Which officials, then, go to those countries to see?"

"I don't know," said the general.

He was asked to respond to reports that the CIA's own secret prisons will be in operation for decades.

"I will give you the full answer," said Hayden, "in closed session."

Throughout the six hours of public questioning, the general expressed his full support for George Bush's expansion of presidential powers against the terrorists under Article II of the Constitution—"the President shall be Commander in Chief of the Army and Navy of the United States"—and thereby he has the inherent constitutional power to authorize the National Security Agency to secretly, without court warrants, eavesdrop on Americans.

(General Hayden was the architect of that policy while head of the NSA and was delegated to try to convince The New York Times not to publish last December's story exposing the spying.)

"What are the limits of these presidential powers under Article II?" Hayden was asked. He said he'd consult his lawyers on that—the same lawyers at the Justice Department and the NSA, he said, who told him it was lawful for George W. Bush to conduct warrantless wiretapping and other surveillance of us, as well as to operate secret prisons and engage in torture.

But surely he could answer a question on whether waterboarding—a method that makes a prisoner believe he's drowning—is "an acceptable CIA interrogation technique." His predecessor, Porter Goss, said it is. But Hayden responded, "Again, let me defer that to closed session."

Well, asked several senators, you've said the NSA program is constitutional, but is there more to its warrantless surveillance—including its massive databases—than the press has already exposed?

The soft-shoe dance continued: "I'm not at liberty to talk about that in open session."

No wonder. As The New York Times noted on the day of the general's hearing, the paper "reported in December that the National Security Agency had gained backdoor access to streams of domestic and international phone and e-mail traffic with the cooperation of telecommunication companies."

Does the general have anything to say about whether he believes national security concerns outweigh private concerns?

"Our job," General Hayden told the committee, "is to keep America safe while keeping it free!" (But that's the "safe and free" slogan of the American Civil Liberties Union. Could it be that the general is a member?)

He was also asked about this president's extensive use of "signing statements," which he attaches to bills when he signs them into law. For a notable example, when signing a law including John McCain's amendment prohibiting cruel, inhuman, and degrading punishment of our prisoners, George W. Bush wrote that whether he would implement that part of the law would depend on the interests of national security.

What does the general think of that? He wouldn't say.

But, on one principle that greatly concerns him, General Hayden was firm and forthright. He told the committee—but was actually sternly addressing the press—that CIA officers and agents "deserve not to have every action analyzed, second-guessed on the front pages of the morning paper."

And as for those press reports on secret prisons, torture, and CIA planes crisscrossing Europe, the general told the committee that "the effect of these leaks globally is very damaging—and that is easily documented."

He provided not a single documented example. Well, doing that, I suppose, might reveal classified "sources and methods." So we just have to trust him as we do the president.

That "damage" by the press was also the reason Hayden's predecessor, Porter Goss, called for a congressional investigation—with subpoenas and grand juries—of both the leakers and the unpatriotic reporters who published what the leakers told them. There are indeed mounting administration investigations of reporters and their sources, and some of those probes are proceeding under the Espionage Act of 1917. (More on that in a later column.)

I thought of the general's testimony when I saw an excerpt from Supreme Court Justice Anthony Kennedy's speech at New York University's commencement on May 11: "America is not just a place. America is an idea—the idea of freedom. Hundreds of millions around the world are watching us to see if freedom works, and they are skeptical. The verdict is out."

Justice Kennedy was not referring to the new CIA director, but I am concerned about freedom working as this administration sets precedents allowing future presidents to disregard the courts and Congress. My concern is not "the idea of freedom" but its actual future here in a global war against terrorism without any discernible end.

Next week: The censorship by Alberto Gonzales and the Justice Department of its own investigators, who were trying to find the lawyer in that department who told the president and General Hayden to go ahead with warrantless surveillance of us.

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