The nomination of Gen. Michael V. Hayden to take over the CIA would trigger a fresh battle over the secret warrantless surveillance program he oversaw on behalf of President Bush, a debate that could help shape the contours of the fall midterm congressional elections, officials in both parties said yesterday.
Barring a change of heart, aides expect Bush to name Hayden tomorrow as his choice to succeed CIA director Porter J. Goss, who resigned under pressure Friday. Hayden, a former director of the National Security Agency and now deputy director of national intelligence, has become the most forceful defender of Bush's eavesdropping program since its disclosure in December.
Rather than steer away from a Hayden nomination because of the controversy, the White House seems ready for a new fight over it, convinced that it has public support and that Democrats opposing Hayden's confirmation would risk looking weak on terrorism. Democrats yesterday began formulating a strategy built around grilling Hayden during hearings and then determining whether any refusal to answer questions provides enough justification to oppose his confirmation.
Rarin’ for a fight?
"By nominating him, they are looking for a confrontation and forcing the Congress to take sides, so I am troubled by this," said Rep. Jane Harman (Calif.), ranking Democrat on the House intelligence committee, who has a close relationship with Hayden and considers him "very professional and dedicated."
A senior White House official said Bush did not choose Hayden to pick a fight but would welcome one if it came. "We felt that we're in a position on offense," said the official, who spoke on the condition of anonymity because the nomination has not been announced. "We have no concerns about a public debate over the terrorist surveillance program."
Not only Democrats expect to use a Hayden nomination to revisit the legality of the surveillance, however. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who has held four hearings on the matter, said he may try to hold up Hayden's confirmation if the administration does not provide more information about the eavesdropping. He said he would try to persuade fellow senators to use the confirmation as "leverage."
"I was briefed by General Hayden and I got virtually no meaningful information," Specter said in an interview. "Now with Hayden up . . . this gives us an opportunity to ask these questions and insist on some answers if the Senate is of a mind to deny confirmation."
Although Hayden has enjoyed a strong reputation among lawmakers from both parties and never encountered confirmation trouble in the past, his selection also would raise questions about the rising military influence over U.S. intelligence and about his ability to be independent from Bush and Defense Secretary Donald H. Rumsfeld.
Critical juncture for intelligence world
If he is confirmed, Hayden would face the challenge of rebuilding an agency that has gone through a tumultuous period, first by failing to prevent the terrorist attacks of Sept. 11, 2001, then by misjudging Iraq's weapons program and most recently by enduring the break-the-china management of Goss, who drove many veterans out of Langley.
Hayden's appointment would come at a critical time for U.S. intelligence as the White House is ratcheting up pressure on Iran to abandon any aspirations for nuclear weapons. A presidential commission last year derided the intelligence community's understanding of Iran. And because of the flawed Iraq assessments, Bush has acknowledged that he faces a serious credibility problem in convincing the American public and the world that his intelligence on Iran is reliable.
Goss stepped down after Director of National Intelligence John D. Negroponte told him in April to leave by May. White House spokeswoman Dana M. Perino yesterday said it was "categorically untrue" that Goss lost Bush's confidence almost from the start of his 18-month tenure, but neither Goss nor the White House offered a public explanation for his resignation.
‘Just one of those mysteries’
As he left his home in Washington yesterday, Goss told CNN his departure is "just one of those mysteries" and declined to elaborate. He then flew to Ohio, where he delivered a commencement address at Tiffin University. "If this were a graduating class of CIA case officers, my advice would be short and to the point: Admit nothing, deny everything and make counteraccusations," Goss, a former CIA officer, told the audience. "Clearly, that doesn't translate well beyond the world of the clandestine service, so I have some other thoughts I'd like to offer."
Goss was overshadowed soon after arriving at Langley when Congress created Negroponte's office to supervise the intelligence community and the CIA director lost his role as primary briefer to the president. As Negroponte's deputy, Bush aides believe, Hayden will be more comfortable in a subordinate position, and he has developed a good relationship with Bush and Vice President Cheney.
Champion of wiretapping program
Bush was especially impressed with Hayden's unrelenting public defense of the surveillance program, which began under his direction at the NSA after Sept. 11. Under the program, the NSA monitors telephone calls and e-mail between the United States and overseas when one participant is suspected of links to terrorists. The administration asserted that it did not need court approval because of the president's inherent war powers, but critics on the left and right said the program violated the law.
In speeches, briefings and congressional hearings, Hayden said that the program was necessary for more "agility" in combating an elusive, underground enemy and that obtaining warrants would be impractical, even though the law permits intelligence tapping for 72 hours before getting court approval.
The White House came to see the program as a political boon because polls showed many voters are not concerned about the civil liberties issues and believe it would only target violent extremists. "When you push even the harshest critic, even they say, 'Yeah, we should be listening to al-Qaeda,' " a senior administration official said yesterday. "So from that perspective, that's a winning [issue] and we're on the side of the public."
Abundance of tough questions
Critics, though, took issue with Hayden's role. Sen. Russell Feingold (D-Wis.), a member of the Senate intelligence committee, said he would be "concerned" about a Hayden nomination. "General Hayden directed and subsequently defended the president's illegal wiretapping program," Feingold said in a statement. He added that he expects "any nominee for this position to be committed to the rule of law and respectful of Congress's oversight responsibility."
A senior Senate Democratic leadership aide said Hayden would probably draw "a tough fight" and serious grilling. "It depends on how forthcoming he is answering the questions," the aide said. "Republicans have some concerns as well. There are legitimate questions about how pervasive this program is and whether it's more comprehensive than General Hayden has acknowledged."
Senators would probably also examine what Hayden's appointment would do to the balance of military vs. civilian influence in the intelligence community. Rumsfeld has asserted more control over intelligence operations, much to the resentment of the CIA. "It seems to me the Pentagon grows even stronger now," a former intelligence official said. "Every time there's a change, it moves in that direction."
But Hayden is far from close to Rumsfeld. When Congress was working on legislation to restructure intelligence agencies in 2004, Hayden testified that the NSA should be under the new director of national intelligence rather than the defense secretary. Rumsfeld was unhappy and let him know it.
Still, some critics said the Goss resignation pointed to broader problems with the restructured intelligence apparatus. "This kind of chaos in U.S. intelligence over the past two years is utterly irresponsible," said Robert L. Hutchings, who was chairman of the National Intelligence Council from 2003 to 2005. "A 'reform' that was supposed to improve coordination and coherence among our intelligence agencies has had the opposite effect."
Staff writers Walter Pincus and Michael A. Fletcher contributed to this report.