Opposing the Nomination of General Michael Hayden

[Guest U.S. Senator Russ Feingold]

I voted against the nomination of General Michael Hayden to be Director of the CIA because I am not convinced that the nominee respects the rule of law and Congress’s oversight responsibilities. General Hayden is highly experienced and talented. But, as Director of the NSA, General Hayden directed an illegal program that put Americans on American soil under surveillance without the legally required approval of a judge. Having finally been briefed about this program last week, I am more convinced than ever that it is illegal. Our country needs a CIA Director who is committed to fighting terrorism aggressively without breaking the law or infringing on the rights of Americans. General Hayden’s role in implementing and publicly defending the warrantless surveillance program does not give me confidence that he is capable of fulfilling this important responsibility.

 

General Hayden failed in his testimony to express any reservations about this Administration’s lack of respect for the rule of law. Rather than committing to follow legally binding restrictions on the authorities of the CIA, such as those prohibiting the CIA from engaging in domestic security, he spoke about presidential authority and consultations with government lawyers. Given that Administration lawyers continue to assert presidential authority to override the law, General Hayden’s answers were less than reassuring.

 

General Hayden’s conduct and testimony also raise serious questions about his willingness to respect congressional oversight. He was complicit in the Administration’s failure to inform the full congressional intelligence committees about the warrantless surveillance program, even though this notification is required by law. In his testimony, he repeatedly failed to explain or criticize the Administration’s failure to inform the full committees about the program. And he declined to commit to notifying the full committees about all intelligence activities, as is required by law.

 

Finally, I remain concerned about previous misleading testimony by General Hayden regarding warrantless surveillance and his explanation for that testimony. In 2002, he told a joint congressional committee that, under FISA, persons inside the United States "would have protections as what the law defines as a U.S. person and I would have no authorities to pursue it." In fact, the President had already authorized the NSA to bypass those legal protections. General Hayden’s explanation for this statement, that he was speaking in open session at the time and had earlier given a fuller briefing to the committee in closed session, does not justify a public misleading statement.

 

The stakes are high. Al Qaeda and its affiliates seek to destroy us. We must fight back and we must join this fight together, as a nation. But when Administration officials ignore the law and ignore the other branches of government, it distracts us from fighting our enemies. I am disappointed that the President decided to make such a controversial nomination at this time. While I defer to Presidents in considering nominations to positions in the executive branch, I cannot vote for a nominee whose conduct raises such troubling questions about his adherence to the rule of law.