In the wake of reports that Air Force Gen. Michael V. Hayden would be nominated to replace outgoing CIA director Porter Goss, numerous news outlets cited as a source of likely controversy Hayden's role in developing and overseeing the Bush administration's warrantless domestic surveillance program. But none of these outlets mentioned Hayden's misleading testimony before Congress in 2002, in which he said that the National Security Agency complies with the requirements of the Foreign Intelligence Surveillance Act (FISA) in conducting surveillance on citizens or legal residents of the United States. Nor did they mention his shifting and contradictory defenses of the domestic surveillance program or his failure to answer questions regarding whether the program has been used to spy on U.S. residents with no ties to terrorism.
In the wake of reports that President Bush would tap Air Force Gen. Michael V. Hayden to replace outgoing CIA director Porter Goss, numerous news outlets have cited as a source of likely controversy Hayden's role in developing and overseeing the Bush administration's warrantless domestic surveillance program. USA Today reported that he had "vigorously defended" the program after its existence was made public and the Los Angeles Times identified him as the administration's "chief defender" on the matter. Other outlets touted Hayden as a straight-shooter. For instance, the Associated Press described his "ability to dispense with generals' jargon" and "speak to ordinary Americans," while Fox News Pentagon correspondent Bret Baier noted his "upfront style."
But none of these outlets mentioned Hayden's misleading testimony before Congress in 2002, in which he asserted that any citizen or legal resident of the United States targeted for surveillance by the National Security Agency (NSA) would be subject to the protection of the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain warrants to conduct surveillance of "U.S. persons." Nor did they mention his shifting and contradictory defenses of the domestic surveillance program or his failure to answer questions regarding whether the program has been used to spy on U.S. residents with no ties to terrorism.
Soon after the May 5 announcement of Goss's resignation, reports surfaced that Bush would likely nominate Hayden to head the CIA. Hayden previously acted as the director of the NSA from 1999 until 2005, when he moved to his current position as the top deputy to John D. Negroponte, the director of national intelligence. On May 8, Bush publicly announced Hayden's nomination as director of the CIA.
As many news outlets have noted, Hayden played an integral role in the development and subsequent defense of the Bush administration's warrantless domestic surveillance program. Shortly after the September 11, 2001, terrorist attacks, Bush authorized the NSA to eavesdrop on the international communications of U.S. residents without a warrant. As NSA director, Hayden designed and oversaw the secret operation, which was ultimately made public in a December 16, 2005, New York Times article.
Following the program's disclosure, members of Congress and legal scholars argued that it violated FISA and questioned its effectiveness and scope. Hayden quickly emerged as the administration's point man, aggressively defending its necessity and legality.
On October 17, 2002, then-NSA director Hayden testified before a joint congressional committee investigating the September 11 attacks that any NSA surveillance of persons within the United States was conducted in accordance with FISA. Hayden said that a "person inside the United States becomes a U.S. person under the definition provided by the FISA Act" and therefore "would have protections as what the law defines as a U.S. person." When asked by then-Rep. Goss (R-FL) whether we could "apply all our technologies and all our capabilities" against a suspected terrorist located in the United States, Hayden replied that he "would have no authorities" to do so.
But as the weblog Think Progress noted, the NSA's domestic eavesdropping program was active in October 2002. Therefore, at the same time he told Congress that the NSA was complying with FISA in conducting surveillance on people in the United States legally, Hayden was "pursuing U.S. persons at the direction of the President outside of the FISA statute." Center for American Progress senior vice president Morton Halperin later argued that Hayden's full awareness "of the presidential order to conduct warrantless domestic spying issued the previous year" during his 2002 testimony could represent a violation of the law.
In a January 23 press conference at that National Press Club, Hayden provided an extensive defense of the warrantless eavesdropping program, during which he stated that the domestic surveillance conducted by the NSA employed a lower standard of proof than required under FISA. In explaining the benefits of the program, Hayden stated that its evidentiary standard is "a bit softer than it is for a FISA warrant":
HAYDEN: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.
Later in the press conference, Hayden confirmed a reporter's characterization of the program as having "lowered the standard."
In a January 26 Washington Post article, however, Department of Justice (DOJ) spokeswoman Tasia Scolinos asserted that the standard used by the NSA was no different from that required under FISA. In contrast with Hayden's earlier claim that the standard had been lowered, she explained that the operative standard for NSA surveillance is "reasonable basis," which she said was "essentially the same" standard as FISA's requirement for "probable cause."
In an interview on the February 5 edition of Fox Broadcasting Co.'s Fox News Sunday, Hayden was asked by host Chris Wallace to clarify the differences between FISA's "probable cause" standard and that used by the NSA. He answered that the NSA standard "is in that probable-cause range." But while Hayden's response fell in line with the DOJ's defense of the program, it was inconsistent with his January 23 statement, as Media Matters for America noted.
A May 8 article by Washington Post staff writer Dafna Linzer noted that Hayden had been asked by The New Yorker in 1999 whether the NSA "could target Americans." He responded, "I am not interested in doing anything that threatens the American people, and threatens the future of this agency. I can't emphasize enough to you how careful we are." But Linzer failed to note Hayden's more recent and less categorical responses to similar questions.
On several occasions since the public disclosure of the NSA program, Hayden has been asked directly whether it has been used to eavesdrop on the Bush's administration's political opponents or, more generally, on U.S. residents with no ties to terrorism. In each case, he has dodged the question.
For instance, during his January 23 press conference, a reporter asked Hayden if the NSA program was targeting Bush's political enemies. Hayden offered generalities in response, emphasizing that "this isn't a drift net," but rather "targeted," "focused," and "about Al Qaeda." As the weblog MyDD noted, Hayden's answer provoked the reporter to follow up," No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration?" Hayden proceeded to call on a different reporter.
In January 6 appearances on both Fox News Sunday and ABC's This Week, Hayden evaded similar questions. When asked by Wallace to "assure Americans that there is no spying on political opponents or political critics of the Bush administration," Hayden answered that the program "is focused on Al Qaeda," and added, "We don't have the time or the lawful authority to do anything except that."
On This Week, host George Stephanopoulos asked Hayden whether the NSA surveillance captures the communications of "Americans that have nothing to do with Al Qaeda." Hayden responded, "We really don't have the time or the resources, the linguists, to linger, to go after things that aren't going to protect the homeland."
But as Think Progress pointed out, "Both of Hayden's responses were missing an important word -- 'No.'"