Confirmation hearings begin today for Gen. Michael Hayden, nominated by President Bush to succeed Porter Goss as director of Central Intelligence. The hearings promise to be contentious. Hayden’s military background is, in some liberal minds, sufficient reason for leeriness; and questions will surely be asked about the National Security Agency’s collection of domestic phone records, a program Hayden inaugurated when he was head of the NSA. But that program is both constitutional and necessary, and speaks to Hayden’s credit. He should be quickly confirmed, and allowed to continue Goss’s efforts to bring under control a CIA that sees undermining the president as its mission.
When USA Today reported that the NSA collects a large amount of domestic telecommunication records for data-mining purposes, a storm broke out in the press. But the story wasn’t the last bit scandalous. The NSA is operating within the law, and its activities are sensible, given the threat we face.
In 1979, the Supreme Court held that, while people have an expectation that the content of their telephone conversations is private, simple phone-usage information–e.g., the subscribers and numbers of the phones making and receiving calls, and the calls’ time and duration–is not private. Service providers maintain records of such information, which form the basis for billing, for service inquiries by users, and for various marketing activities. Because there is no expectation of privacy in the handling of these records, they are not protected by the Fourth Amendment. For decades, the government has also gathered such records to conduct criminal investigations. This process has involved collecting records of vastly more customers than have been known to be involved in criminal conduct, but has not been held unconstitutional.
The point of an investigation, particularly in national-security cases, is to discover who is a threat, not to confirm threats already known. The NSA program nicely balances privacy with security. The government has apparently obtained usage records from which all personal information, such as the names of users, has been deleted. These records are scanned by computers–which raises no privacy concerns, since no human “search” takes place. If the computer logs a call by a suspected al-Qaeda member, a “hit” is registered, and the number that has been called can be traced. Far from violating the Fourth Amendment, the system protects privacy in its input process by omitting personal information from the databank, and protects privacy thereafter because only the “hits” are subjected to investigative scrutiny. That Hayden is responsible for creating this program should be viewed as one more qualification for his new post at Langley.
Assuming Hayden is confirmed, he will have three major problems to fix at the CIA. First, the CIA’s analytical track record is poor. Frequently, it “under-connected the dots” and failed to assess accurately threats to U.S. national security. This is what happened in the first Gulf War, when the CIA’s pre-war intelligence underestimated Saddam’s WMD programs, and again in the years leading to 9/11. At other times, CIA analysts “over-connected the dots”–overestimating, beginning in the late 1990s, the extent of Saddam’s WMD stockpiles.
Second, the agency is inept at its core mission of waging covert operations against America’s enemies. Its capabilities had been eroded during repeated political witch hunts, beginning with the Church committee hearings of the 1970s and continuing into the Clinton administration, when several senior CIA operatives were reprimanded for recruiting alleged human-rights violators. These external pressures, combined with the unwillingness or inability of a long line of CIA directors to reward initiative and punish failure, have fostered a risk-averse and dysfunctional bureaucratic culture within the agency’s covert-action directorate.
Third, while much of the permanent bureaucracy in Washington tends to lean to the left and resent policy innovations by conservative Republican administrations, this problem is particularly acute at the CIA. Indeed, much of the agency has been in a state of semi-open rebellion against the Bush administration. Numerous CIA officials engaged in efforts to torpedo key administration policies by leaking information to the media.
Porter Goss fought this CIA–and the CIA won. The media criticized him at every turn, portraying his CIA opponents (and their frequent sources) as selfless and non-political professionals. He never had strong support from the White House or John Negroponte, the director of national intelligence. Goss’s precipitous departure, coupled with the lack of standard White House courtesies, has created an impression that the cause of reform at the CIA has been abandoned. This impression is reinforced by the announcement that the deputy to General Hayden after he is confirmed will be one Stephen Kappes: a former head of the CIA’s Operations Directorate who resigned in protest early in Porter Goss’s tenure.
If the Senate really wants some good to come of Hayden’s confirmation hearings, it should use them to highlight the role that the likes of Kappes have played in sabotaging the administration’s foreign-policy agenda. The message must be that, although Goss is gone, the clean-up at the CIA is not–and that Hayden is going there to finish it.