I've been watching and listening to General Michael Hayden, the former National Security Agency chief now nominated by President Bush to lead the Central Intelligence Agency. You can find reports about the content of his comments here, here and here. Let's focus here on the lack of rational substance.
Hayden, in responding to questions is not being very Hayden admitted in the substance of his testimony that the NSA has acted beyond the law.forthcoming about the nature of the call tracking program, even though President Bush has called for greater oversight by Congress. Even the simplest questions about internal review processes, which would have no value to "the enemy" and all sorts of value in calming people's fears, were deflected for the closed session.
What came through most clearly was that Hayden believes that if a form of surveillance is possible, it is "reasonable" to use it.
On a number of occasions during his testimony, he provided comparisons between techniques, always emphasizing the government's need for access before the public's right to privacy or the Constitutional requirement that the government show probable cause when obtaining a warrant. He never tread close to the fact that it is simply illegal for the NSA to conduct domestic intelligence, citing the "extraordinary authority" of the President to justify the whole program.
Contrary to Hayden's assertion that the NSA's own review process was sufficient, the Supreme Court has held that "prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights." The NSA, or any other police or military agency, cannot police itself in regards individual civil liberties.
Utah Senator Orrin Hatch asked Hayden if he would welcome revisions to the FISA Court law, which Hayden said hadn't kept up with the times. Hayden replied affirmatively. However, welcoming a change to the law and preemptively ignoring the law because of the times are contradictory ideas. Hayden admitted in the substance of his testimony that the NSA has acted beyond the law.
One notable argument made by Hayden, in response to a question from Hatch, was that, had the NSA surveillance program been in place before 9/11, two of the hijackers, Khalid Almihdhar and Nawaf Alhazmi, would have been arrested before the attack. That doesn't jive with reality, because the government both knew the men were in the country and had terrorist connections, and they may have been involved in some way with FBI assets. Unfortunately, these hijackers were already in the FBI's net without the NSA program, but action wasn't taken even though they had been known to be involved with al Qaeda since 1993.
Hatch went on to congratulate Hayden for a job well done, asking how long it had been since a "major terrorist attack" in the United States. Hayden replied "About four-and-a-half years," as though this "success" justified widespread monitoring of Americans' lives. No one in the room pointed out that, prior to 9/11 the nation had been "safe" for eight-and-a-half years, since the first World Trade Center bombing in 1993. It's too early to declare victory or even partial success.
Somehow, all the credit for success is allotted to the NSA's surveillance efforts while it absolves itself of responsibility for any abuses or mistakes.
General Hayden may not like that intelligence has become a "political football," but when someone makes these kinds of improbably arguments it is a value in a democracy for someone to speak up. The only place it has ever been a crime to debate or simply question government actions is in a totalitarian state, which I don't believe General Hayden wants any more than me or you. Unfortunately, his sense of duty has blinded him to the rights the NSA fights to protect.