President Bush's nomination of Michael V. Hayden to lead the Central Intelligence Agency is gravely problematic. As such, we should
welcome Hayden's nomination, as it might actually jumpstart democracy in the United States.
In December, we learned that the National Security Agency, under the direction of Hayden, was conducting domestic eavesdropping of
calls with suspected terrorists outside the United States. Now we know that the NSA-in a massive dataveillance operation that would
slacken George Orwell's jaw-has also been secretly compiling tens of millions of domestic phone records into a national call
Both programs have been conducted without warrants and are therefore questionable in terms of legality.
There are also constitutional and historical reasons why Hayden should raise some senatorial eyebrows at his confirmation hearings.
First, the constitutional issues. In January at the National Press Club, Hayden gave a speech defending the NSA's warrantless
surveillance of U.S. citizens. In the question-and-answer period following Hayden's speech, Knight Ridder's Jonathan Landay
highlighted the fact that the Fourth Amendment to the Constitution compels the government to issue warrants based on probable cause,
which the NSA did not bother to do.
In an alarming exchange, Hayden offered a serious misunderstanding of the Fourth Amendment, asserting that it did not demand
probable cause but rather that "the Fourth Amendment actually protects all of us against unreasonable search and seizure."
When pressed by the reporter about the probable cause requirement, Hayden said, "If there's any amendment to the Constitution that
employees of the National Security Agency are familiar with, it's the Fourth."
Granted, U.S. case law allows warrantless searches and seizures in some instances, as long as they are not "unreasonable." Yet
Hayden was not making such nuanced, legalistic arguments. Rather, he appeared to be startlingly unaware of the probable cause
White House aide Dan Bartlett recently described Hayden as a "non-conformist and an independent thinker." But that's exactly what we
don't need when it comes to complying with the Fourth Amendment.
Hayden's nomination to head the CIA is also problematic for reasons rooted in U.S. history.
In 1975, a Senate Select Committee to Study Governmental Operations was convened to investigate allegations of illegal intelligence
activities carried out by the CIA, FBI, and other branches of the national intelligence system. Headed by Frank Church, a Democrat
from Idaho, the committee issued a multi-volume report in 1976 chock-full of shocking revelations regarding intelligence activities
One such program run by the CIA was called Operation Chaos. Established in 1967, Operation Chaos was designed "determine the extent
of hostile foreign influence on domestic unrest among students, opponents of the Vietnam war, minorities and the 'New Left',"
according to the Church Committee.
The program, which lasted until 1974, scrutinized and catalogued domestic dealings that were outside the CIA's foreign intelligence
jurisdiction, surreptitiously nudging the agency across the line that prohibited it from carrying out internal security functions.
In conjunction with the FBI, the CIA engaged in warrantless mail interception and other questionable practices. Along the way, the
CIA compiled files on more than 1,000 dissident citizens and groups, and indexed hundreds of thousands of Americans into its
Fast-forward to today when the intelligence community is carrying out similar actions. Given Hayden's history as head of the NSA
from 1999 to 2005, a period in which domestic warrantless surveillance was ramped up, he is an injudicious-and perhaps even
dangerous-choice for the head of the CIA, That is, unless we are willing to cram our history lessons down the collective memory
In 1976, the Church Committee strongly recommended enhancing congressional oversight in order to massage the inherent tension
between secrecy and democracy. Such congressional oversight is once again needed today.
Given the Bush administration's unwillingness to grant security clearance to the Justice Department's Office of Professional
Responsibility so that it can carry out an ethics probe on the NSA's domestic surveillance program, the Hayden nomination is a
not-to-be-missed opportunity for much-needed congressional scrutiny of this massive, shadowy surveillance juggernaut.
We should be thankful President Bush nominated Michael Hayden for the post of CIA chief, gifting Congress with a critical
opportunity to place checks on presidential power.
All too often in our history, we have had to apologize retrospectively for surveillance-related civil-liberties violations against
targeted groups and individuals. The Hayden confirmation hearings afford Congress an opportunity to swerve this country away from
the mistakes of its past and toward a balanced, legal approach to combating terrorism and respecting privacy at the same time.
Nothing less than U.S. democracy-replete with its checks-and-balances system-is at stake.
Jules Boykoff teaches political science at Pacific University. He is the author of "The Suppression of Dissent: How the State and
Mass Media Squelch USAmerican Social Movements." Email to: firstname.lastname@example.org.