Hayden Confirmed As CIA Chief In Bi-Partisan Vote; Administration Asks For Dismissal of NSA Suits

Seemingly intent only in getting away from the District as quickly as possible for the Memorial Day recess, the Senate confirmed (78-15) Air Force General Michael Hayden as CIA chief on Friday.

Hayden becomes the first military officer to head the agency in 25 years and first active duty officer since 1953. Senate Judiciary Chair Arlen Specter (R-PA) was the only Republican to vote against the nomination; Sen. Dole (R-NC) abstained.

Hayden achieved minor notority in January when he misstated the Fourth Amendment in an MSNBC interview. Apparently the Senate does not care that the chief of the CIA insists that the Fourth Amendment has no "probable cause" clause. Moreover, by overwhelmingly endorsing Hayden's nomination, the Senate has given tacit approval to the NSA programs initiated under his leadership.

In fact, late on Friday, the Bush Administration "asked federal judges in New York and Michigan to dismiss a pair of lawsuits filed over the National Security Agency's domestic eavesdropping program, saying litigation would jeopardize state secrets."

The Vote
Senators voting "No": Bayh (D-IN), Cantwell (D-WA), Clinton (D-NY), Dayton (D-MN), Dodd (D-CT), Dorgan (D-ND), Durbin (D-IL), Feingold (D-WI), Harkin (D-IA), Kennedy (D-MA), Kerry (D-MA), Menendez (D-NJ), Obama (D-IL), Specter (R-PA) and Wyden (D-OR).

Senators not voting: Boxer (D-CA), Conrad (D-ND), Dole (R-NC), Inouye (D-HI), Rockefeller (D-WV) and Salazar (D-CO).

Talking Points Memo quotes Sen. Pat Roberts (R-KS) -- suggesting that the nation -- or at least its politicians -- is still in "fear" mode: "I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties ... but you have no civil liberties if you are dead."

NOTE: Hayden was head of NSA before 9-11-2001 -- and the 9.11 Commission scathingly reported on the inadequacies of the entire US intelligence community.

The Senate - and President - are capable of acting rapidly when they want to. Former Director Porter Goss resigned on 5 May and President Bush nominated Hayden on 8 May. The nomination was moved out of committee on the 23rd and passed before the Memorial Day recess on the 25th.

Response
General Hayden served as the director of the National Security Agency (NSA) from March 1999 to April 2005. The NSA has been at the center of controvery surrounding warrantless wiretaps and allegations of mining domestic telephone logs.

Hayden became a deputy to National Intelligence Director John Negroponte after the reoganization of 16 intelligence agencies. It's unclear if this is a promotion or a demotion, if one is looking at power and influence.

Mack White points us to a YouTube interview conducted by Knight Ridder's Jonathan Landay (for MSNBC) with General Hayden in January. In the interview, Hayden repeatedly misstates the Fourth Amendment civil rights protections:

Landay: "... the Fourth Amendment of the United States Constitution specifies that you must have probable cause to be able to ... search ... [without violating] an American's right against unreasonable searches and seizures ..."

Gen. Hayden, interrupting: "No, actually ... the Fourth Amendment actually ... ah ... protects all of us against unreasonable search and seizure ... The Amendment says unreasonable search and seizure.

Landay: "The legal standing is probable cause."

General Hayden: "Just to be very clear, and believe me, if there's any Amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. Alright? And it is a reasonableness standard in the Fourth Amendment. The constitutional standard is 'reasonable'."

But Hayden is wrong. Fourth Amendment (emphasis added):

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.

It was the probable cause clause that generated the most heat when Americans learned about the NSA's warrantless wiretapping program in December 2005. The New York Times had sat on the story for well over a year -- possibly before the 2004 elections -- at the request of the Administration.

Commenting on the Senate action, Westhawk writes:

f ever was there an opportunity for strict civil libertarians and the American political left to create a political firestorm over the National Security Agency's surveillance of suspected Al Qaeda communications in and out of the country, General Hayden's nomination to the CIA by President Bush presented the perfect opportunity to create that storm. Instead, the Senate waved through General Hayden's nomination without delay and with only the most perfunctory of objections, almost entirely from Democratic senators intending to run for the presidency in 2008.

This Senate action causes some bloggers to warn of an impending police state.

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