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Some Calm In The Eye of the Surveillance Storm?
Published on Friday, May 19, 2006 by CommonDreams.org
Some Calm In The Eye of the Surveillance Storm?
by Jules Boykoff
 

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 database.

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 criterion.

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 and programs.

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 computer databases.

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 hole.

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: boykoff@pacificu.edu.

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