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Shayana Kadidal Headshot

The Hayden Nomination: Should Officials Who Break the Law Be Promoted?

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General Michael Hayden's CIA nomination poses a serious question for the U.S. Senate: Should government officials who break the law be promoted or punished?

As former director of the National Security Agency (NSA), Hayden developed President Bush's illegal program of warrantless domestic spying. He was the Program's "principal architect," according to The New York Times. At the NSA, Hayden failed to follow federal law and the Constitution. He demonstrated a stunning lack of judgment in administering a program he must have known was illegal -- and ineffective -- under pressure from the Executive Branch. This record makes him unfit to lead the CIA. By rejecting his nomination, the Senate can protect the rule of law and show zero tolerance for government officials who break the law.

We make this case in detail in a letter the Center submitted to the Senate Intelligence Committee yesterday, drawing on public information about illegal domestic spying from news accounts and several court cases. The entire letter is available here at the Center for Constitutional Rights website, but I wanted to share a few highlights below:

CCR Hayden Image.jpg

1. Hayden had to have known that the NSA Domestic Spying Program was illegal under FISA

As a career intelligence professional and former director of the NSA, Hayden understood every detail of federal law on surveillance, including the Foreign Intelligence Surveillance Act (FISA), which was passed in direct response to the post-Watergate Church Committee's "revelations that warrantless electronic surveillance in the name of national security ha[d] been seriously abused." Most of these abuses involved warrantless wiretapping, directed by the President without any judicial oversight to stop him from singling out his political opponents. To ensure these abuses would not be repeated by presidents after Nixon, Congress expressly provided that FISA and the domestic wiretap act (usually called "Title III") are "the exclusive means by which electronic surveillance ... may be conducted." To underscore the point, Congress made it a felony to conduct electronic surveillance without statutory authorization.

There's just no question that Hayden must have known that intercepting electronic communications and collecting calling records without seeking court approval was illegal. The legal analysis is not a close call.

2. Hayden also should have known that the warrantless wiretapping of communications involving American citizens is unconstitutional under the Fourth Amendment

General Hayden was also intimately acquainted with the constitutional limits on wiretapping when he repeatedly violated them as head of the NSA.

There's been a lot of comment in the Blogosphere about whether Hayden understands the Fourth Amendment. Let's start with what it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I added the italics to show that the Fourth Amendment really has two halves. The first half says that the people have a right to be free from unreasonable searches. Pretty straightforward. The second half (in italics) says that before a court can give executive law enforcement officers a warrant (permission to carry out a search), the officers have to show the court enough evidence to demonstrate "probable cause" -- meaning, good reason to suspect that criminal activity has taken place.

Now, one could read those two sections separately, so that the requirement to show "probable cause" only applies if the cops want a warrant and the partial immunity from liability it conveys. On this reading, however, the cops have another option: they can choose to carry out searches without going to a judge beforehand, and if challenged after the fact can defend their decision to search as being "reasonable" based on what they knew before the search. There are some very smart law professors out there -- Akhil Amar today, the late Telford Taylor years ago -- who think the world might work better if courts read the Amendment this way. (Although both Amar and Taylor are thought of as liberals, this is a classic example of a textual "strict constructionist" reading.)

But the Supreme Court has for over a century collapsed the two halves of the Fourth Amendment into one, by holding that, with very limited exceptions, all warrantless searches are unreasonable. And most people who think about these issues for a living believe that the Supreme Court's interpretation makes sense. (Among other things, if we tested the reasonableness of searches only after they were over, it would be very hard to reliably separate what the cops knew before the search from what they learned during the search.)

Now, let's get back to General Hayden. In January, Hayden insisted "if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth." However, when reporters asked him if wiretaps always required "probable cause," he said "No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says."

People have taken this to mean he's a dummy (like his boss). He's not; he's actually being sneaky-smart. That is what the Amendment "says" -- if you ignore the inconvenient fact that the Supreme Court has read it differently for a hundred years or so.

Whether this "reasonableness" standard was the original rationale for the NSA Program (torture memo coauthor John Yoo apparently wrote a wiretapping memo around the same time) or an after-the-fact justification, Hayden implemented a program in which NSA shift supervisors employ their own standards of "reasonableness" to make decisions about who to target for surveillance.

Even if the NSA's domestic spying activities were actually approved by Congress, the NSA Program would still fail to comply with the Fourth Amendment as the Supreme Court has always read it. Interception of calls involving Americans on American soil requires a court order and a demonstration of probable cause.

3. Hayden should have understood that the President was violating the separation of powers when he authorized the Program

Congress was well within its constitutional authority when it passed FISA almost thirty years ago. The Executive Branch's attempt to bypass this congressionally-approved statute and thereby avoid ever going to judges before instituting wiretaps undermines the separation of powers -- the most fundamental organizing principle of our representative democracy.

As the highest-ranking intelligence officer in the armed forces, General Hayden should have been well aware of the illegality of the NSA's domestic surveillance activities. Several other governmental officials had already suspected as much and spoken out accordingly.

David S. Kris, a former top official in the Justice Department, wrote in an e-mail that the DOJ's defenses of the Program "had a slightly after-the-fact quality or feeling to them." (See last page of link for the quote.) In January, the Times reported that another top DOJ official, James B. Comey, doubted the legality of the program and its lack of oversight, refusing to approve central aspects of it when he acted as Attorney General during John Ashcroft's 2004 stint in the hospital. Bush's aides Andrew Card and Alberto Gonzalez were forced to seek Ashcroft's certification during an emergency bedside visit, where some officials say that Ashcroft echoed similar discomfort about key aspects of the program; "[i]t is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it." A number of senior government officials reported that in the earlier days of the domestic spying program, several NSA officials -- obviously lower in ranking than General Hayden -- sought to have no part in the activities, "apparently fearful of participating in an illegal operation." Yet despite these concerns from senior officials and subordinates surrounding General Hayden, he did not exercise similar judgment or restraint.

Instead, it appears that General Hayden's CIA nomination is a reward for his failure to uphold the law in the face of Executive pressure. This is especially troubling for someone named to head the CIA -- a spy agency that operates out of view of the press, the courts, and the voting public most of the time. If we are going to tolerate the existence of such arms of government, we must ensure that the people who run them be absolutely beyond reproach ethically. Given the many indications that the NSA's electronic surveillance program and massive domestic call database gravely intruded into the separate functions of Congress and the judiciary, the Center believes he should not be confirmed.

Thanks for reading. If you've gotten this far, you might want to check out the full letter we sent or tell your Senators to oppose the nomination.

May 18, 2006

UPDATE: A few notes on today's hearings: (1) Hayden's written statement said that in terms of "'speaking truth to power,' he would lead by example." Insert your own joke there.
(2) When pressed on whether he thought the Authorization to Use Military Force justified this program at the time they started it in 2001, he said they hadn't really relied on that, but that "we were comfortable with the Article II arguments"--meaning, the argument that the President has an inherent power to carry out surveillance to defend the United States and nothing Congress or the Courts say can stand in the way of that inherent power. So the FISA statute could not eliminate this "Article II" wiretapping power; only a constitutional amendment can. This is an argument that could justify ANYTHING the President does in violation of federal statutes--torture, detention of citizens, you name it. It is a principle without limitation. If he bought the AUMF argument, I'd think he was a dolt. But this scares me.
(3) He quoted Reagan on arms control: "trust but verify." Of course, "verify" is the role of the courts in the warrant process regulating all domestic wiretapping.
(4) He once again defended his bifurcated interpretation of the Fourth Amendment, although he claimed it came from talks with his relatives in law school--not the legal luminaries I mentioned above!--Shane