Editorial: Choice for CIA has baggage

Tuesday, May 9, 2006 | 7:31 a.m.

President Bush is taking a big gamble with his nomination of Michael Hayden to the position of CIA director. The four-star Air Force general was the director of the National Security Agency from 1999 through August of last year. Normally that would be an excellent qualification, but in Hayden's case it is tainted by his enthusiastic involvement in Bush's post-9/11 order to eavesdrop on Americans' international communications without a court order.

The Washington Post reports that it was Hayden who designed and ran the domestic spying program, which has monitored the calls and e-mails of at least 5,000 Americans. The existence of this ongoing program was revealed last December by The New York Times. Bush responded by saying the U.S. Constitution inherently grants him broad authority to protect Americans in times of war, even if it means circumventing established law.

Many members of Congress immediately objected to this declaration, including Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee. It is this committee that has jurisdiction over the domestic spying issue. Specter was quoted widely on Monday, after an appearance on "Fox News Sunday," as saying Hayden's confirmation hearing will provide an opportunity for the Senate to ferret out details of the domestic spying program.

Bush administration officials have testified about the program before, but Specter has been frustrated at how little information they have provided. The senator, and many others in Congress, question how the program could be legal when the 1978 Foreign Intelligence Service Act specifically requires that any such monitoring of Americans be authorized by a special court established for that exact circumstance.

Adm. Stansfield Turner, who was CIA director from 1977 to 1981, raised the same question Monday on CBS' "Early Show." He said he opposes Hayden's nomination because of "the wiretapping that was done under his supervision." Turner added, "I happen to think the wiretapping was illegal and that we need to clarify that for the whole American public."

There are other pitfalls to Hayden's nomination besides the domestic spying. Many members of Congress object to having a military officer head the CIA. And many Republican incumbents, with midterm elections on the horizon, do not want to be perceived as rubber stamps for Bush. The president's approval rating, polls show, is hovering just over 30 percent.

The gamble the weakened president is taking is that the confirmation process could become an almost single-focus debate about domestic spying. If Hayden is no more forthcoming than he has been in the past, he could be rejected, delivering yet another blow to Bush's effectiveness as president.

We believe the CIA, which has been weakened by massive turnover over the past two years, would have been much better served by a nominee not associated with such a divisive issue as legally questionable domestic spying.