The Senate and the General

The New York Times
The Senate and the General

Watching the confirmation hearing yesterday for Gen. Michael Hayden as director of the Central Intelligence Agency, it was hard to see past the sorry sight of a four-star general taking what should be a civilian job. But the hearing produced important — and disquieting — news about President Bush's decision to spy on Americans without a warrant.

It seems certain that General Hayden will be confirmed. Senator Pat Roberts, the Intelligence Committee chairman, made it clear that this would be yet another rubber-stamp session when he arranged to have the full committee briefed on domestic spying just one day earlier. If he had been genuinely concerned about checks and balances, rather than simply trying to smooth the way for the confirmation, he would have insisted on a full briefing four and a half years ago, when he learned of the surveillance program.

General Hayden, who we still think should not be given this job, did say some reassuring things. He was, for instance, properly critical of the way Defense Secretary Donald Rumsfeld created his own intelligence agency before the war in Iraq. That office dedicated itself to producing unequivocal claims about Iraqi weapons.

General Hayden also said that intelligence analysis should acknowledge dissent and be candidly ambiguous when justified — and that politicians have to accept that ambiguity.

But the National Security Agency's domestic surveillance, which General Hayden ran while he led the agency, loomed over the proceedings. General Hayden could not explain coherently why he testified in 2002 that he had no authority to listen to Americans' phone calls without a warrant, when the president had already given him that authority.

General Hayden's appearance also made it clear that the one warrantless spying operation Mr. Bush has acknowledged — listening to calls between the United States and other countries — is not the only one. And he testified that he did not, as Mr. Bush has said, design the N.S.A. operation, which violates the 28-year-old legal requirement for a warrant for any domestic wiretapping.

The hearing drove home again that the spying is being conducted outside the constitutional system of checks and balances.

General Hayden said N.S.A. lawyers decided whether individual surveillance jobs were justified, with periodic reviews by the Justice Department. That is no comfort. Attorney General Alberto Gonzales enthusiastically subscribes to Mr. Bush's imperial vision of the presidency, as well as the president's disregard for the balance of powers. Mr. Gonzales's department recently quashed an investigation by its ethics office into the conduct of the Justice Department officials who approved the spying program.

Mr. Roberts repeated Mr. Bush's claim that the issue here is whether the United States spies on Al Qaeda or not. It's hard to believe that even the senator doesn't know how absurd that is. No one objects to collecting intelligence on Al Qaeda. The issue is whether it will be done legally, and whether Congress will step up to this challenge of its duties and powers. General Hayden's hearing did not provide much hope on either front.