Or How I Learned to Stop Worrying

The United States Senate voted 78-15 to confirm General Michael Hayden as the new CIA Director. 25 Democrats joined 52 Republicans and 1 Independent in voting to confirm General Hayden. In doing so, the Democrats gave Karl Rove and the Bush Administration the headline they were hoping for when they nominated General Hayden.

The Washington Post website obligingly served up the following as its top news story:

Senate vote gives broad bipartisan endorsement to the architect of NSA’s domestic spying program.

The cowering Democratic response to the Hayden nomination has just needlessly inoculated the Republicans from the charge of violating Americans’ civil liberties by conducting warrantless domestic spying. This is a defeat for the American people and may result in defeat at the polls in November for the Democrats.

The Democrats now have 6 months in which they must grow a backbone. However, if today’s vote is any indication they are steadily digging themselves into the same safe yet futile hole that John Kerry climbed into during the 2004 Presidential elections. Republicans in the Congress and the White House must be doing cartwheels watching the latest act of Democratic Hara-kiri.

When President Bush nominated General Michael Hayden for the position of Director of Central Intelligence he threw down a gauntlet to the Democrats. He dared the Democrats to do battle on this nomination. He dared the Democrats to vote against Hayden and he dared the Democrats to hold up the nomination. He dared the Democrats to leave vacant the CIA Director’s position while the United States is engaged in wars in Afghanistan and in Iraq. Predictably, the Democrats on the Senate Intelligence Committee saw the gauntlet, turned tail, and fled.

With the notable exception of Senators Feingold, Wyden and Bayh, the remaining Democrats on the Committee voted to send Hayden’s nomination to the floor. By voting for the nomination the 4 Democratic Senators have fallen into the political trap set for them by the Administration. The Administration has put the Democrats in a vise. If Democrats vote against the nomination, the Administration can claim that the Democrats are obstructionist and weak on national security. If the Democrats vote for the nomination, the Administration is inoculated against charges that it overstepped its authority by conducting warrant-less surveillance. A vote for Hayden is in effect an acceptance of the Administration’s position on the NSA spying. Either way the Democrats vote they will be beat upon relentlessly in the run up to the November elections.

Democrats have rightly decided that blocking Hayden’s nomination will damage them politically going into the November elections. However, voting for the architect of the NSA spying program is an even worse option. A vote for Hayden, in addition to giving the Administration a green light on the NSA spying, will also alienate the Democratic base - and the base is crucial in the November elections where turnout will likely determine the outcome of many races. A vote for Hayden will damage the Democrats just like John Kerry’s Iraq votes damaged him in the 2004 Presidential elections. Here the Administration has figured out that they can have their cake and eat it too - they get the nominee through and they damage the Democrats politically.

I propose a third option for the Democrats. When the nomination comes up for a vote on the Senate floor, the Democrats should neither try to block it nor vote against the nomination. Instead the Democrats should abstain. Abstaining on the nomination vote blunts the Administration’s logic and outflanks them politically. The Democrats cannot be seen as obstructionists when they do not hold up the nomination. The Democrats cannot be seen as weak on national security when they do not vote against the nominee. The Bush Administration will also fail in their gambit to inoculate themselves from charges that the NSA spying is illegal. The Democrats can say that they stood on principle and could not vote for a nominee who has a questionable record on protecting American civil liberties, and on the other hand, the Democrats can say that they could not vote against the President’s nominee for the crucial position of Director of Central Intelligence in a time of war. 

When the Bush Administration picked General Hayden, no doubt they believed they had a horse on which they could win multiple political points ahead of the elections. They counted on the Democrats to cower at the prospect of a nomination fight. They counted on the Democrats to lose the game. Instead of capitulating on the playing field laid out by Karl Rove and his friends the Democrats need instead to move the playing field. It’s a simple strategy yet it holds the promise of success. 

On October 17, 2002 General Michael Hayden, then director of the National Security Agency, spoke in prepared remarks in front of a joint hearing of the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. General Hayden was speaking about NSA’s knowledge of the events leading up to the attacks of September 11, 2001. General Hayden concluded his remarks by telling the Committees what he hoped would result from the public debate on the NSA’s future role:

Let me close by telling you what I hope to get out of the national dialogue that these committees are fostering. I am not really helped by being reminded that I need more Arabic linguists or by someone second-guessing an obscure intercept sitting in our files that may make more sense today than it did two years ago. What I really need you to do is to talk to your constituents and find out where the American people want that line between security and liberty to be.

In the context of NSA’s mission, where do we draw the line between the government’s need for CT information about people in the United States and the privacy interests of people located in the United States? Practically speaking, this line-drawing affects the focus of NSA’s activities (foreign versus domestic), the standard under which surveillances are conducted (probable cause versus reasonable suspicion, for example), the type of data NSA is permitted to collect and how, and the rules under which NSA retains and disseminates information about U.S. persons.

These are serious issues that the country addressed, and resolved to its satisfaction, once before in the mid-1970’s. In light of the events of September 11th, it is appropriate that we, as a country, readdress them. We need to get it right. We have to find the right balance between protecting our security and protecting our liberty. If we fail in this effort by drawing the line in the wrong place, that is, overly favoring liberty or security, then the terrorists win and liberty loses in either case. [Emphasis added by me.]

General Hayden’s concluding remarks to the Committees give us a window into the thought process of the man who has been nominated to be the next Director of Central Intelligence. General Hayden was challenging Congress and the American people to move the line between liberty and security toward more security. He suggested that favoring liberty over security, as was the case before September 11, 2001, will mean that "the terrorists win". He suggested that the line needs to be moved so that the standards for doing surveillance ("probable cause versus reasonable suspicion" ) can be lowered toward "reasonable suspicion". He arrogantly told Congress that he is not "helped by being reminded" of NSA’s shortcomings or by being second-guessed on NSA’s failures. The most important thing for him was that Americans give up some liberty for security in order that he, Michael Hayden, can guarantee the American people liberty by intruding on their privacy.

As General Hayden spoke to Congress on that day, we now know, the NSA was already engaged in tapping Americans’ phone conversations and collecting the phone records of millions of American citizens without required court orders. The line between liberty and security had already been moved by General Hayden and a like-minded White House without the consent or the knowledge of the American people. General Hayden had moved the privacy threshold from "probable cause" to "reasonable suspicion" without an amendment to the Constitution. In his mind, it would appear, General Hayden had convinced himself that the Constitution had been amended. In his now infamous exchange with a reporter at the National Press Club recently he made the outrageous claim that the 4th Amendment of the Constitution did not specify a "probable cause" threshold:

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the —

GEN. HAYDEN: That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

QUESTION: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

In light of the General’s previous remarks to Congress, the exchange at the National Press Club does not appear to be a slip of the tongue by the General. It appears that the General in pushing the bounds of civil liberties has convinced himself that the Constitution does not offer citizens the protections it quite clearly does.

General Hayden not only believed the line between liberty and security needed to move toward security he acted upon it with gusto. Under General Hayden the NSA embarked upon a massive investment in technology to enhance NSA’s eavesdropping prowess. In his remarks to Congress he stated:

Another part of our strategy for nearly three years has been a shift to a greater reliance on American industry. We have been moving along this path steadily and we have the metrics to show it. As you know, in project GROUNDBREAKER we have already outsourced a significant portion of our information technology so that we can concentrate on mission. We have partnered with academia for our systems engineering. I have met personally with prominent corporate executive officers. (One senior executive confided that the data management needs we outlined to him were larger than any he had previously seen). Three weeks ago we awarded a contract for nearly $300 million to a private firm to develop TRAILBLAZER, our effort to revolutionize how we produce SIGINT in a digital age. And last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets. In terms of "buy vs. make" (the term Congress has used), we spent about a third of our SIGINT development money this year making things ourselves. Next year the number will be 17%. [Emphasis added by me.]

The $300 million for TRAILBLAZER was awarded to SAIC to develop a platform for doing massive data collection and analysis in real-time or near real time. NSA also awarded contracts to mine the massive amounts of data collected by TRAILBLAZER. In launching and managing TRAILBLAZER General Hayden presided over the largest waste of taxpayer dollars in the history of the National Security Agency. Since its inception in 1999, the program’s budget has ballooned to $1.2 billion. For the huge investment in taxpayer dollars, instead of the sophisticated surveillance platform promised by the contractors,  "only a few isolated analytical and technical tools have been produced" in the program’s six and a half years of existence.

In April of 2005, General Hayden testified before Congress about the delays and cost overruns of the TRAILBLAZER program:

In April, Hayden testified to the Senate Intelligence Committee that Trailblazer was racking up extra costs and dropping behind schedule.

"The costs were greater than anticipated to the tune of, I would say, hundreds of millions," Hayden said. "The slippages were actually more dramatic than the costs. As we slipped, the costs were pushed to the right."

General Hayden also learned what happens when you give big corporations blank checks written on the backs of the American taxpayer:

Hayden, in his testimony in April, acknowledged that NSA initially had mishandled the Trailblazer contract.

"We learned within Trailblazer that when we asked industry for something they had or something close to what they already had, they were remarkable in providing us a response, an outcome," Hayden told the committee. "When we asked them for something that no one had yet invented, they weren’t any better at inventing it than we were in doing it ourselves." [Emphasis added by me.]

General Hayden had bet the farm on TRAILBLAZER and he mismanaged the project at great expense to the American taxpayer.  But in spite of his utter failure in managing the most important project during his tenure as the head of the NSA, General Hayden has many backers and apologists in Washington:

But General Hayden’s fans remain loyal. Mr. [Bob] Graham, who was chairman of the Senate Intelligence Committee when the problems with Trailblazer became evident, said he preferred to attribute the difficulties to worthy ambitions.

"There were failures, but in my judgment they were not failures of competence or management," he said. "When you’re Christopher Columbus, you’re not going to get to your destination on the first try."

Apparently in Washington, you only need to think big not deliver big. I would think after the Iraq debacle the American people have had just enough of grand ideas backed up by incompetent execution.

The TRAILBLAZER program is likely the platform on which the domestic wiretaps and the phone records program are based. It now appears quite clear that the phone records database and the domestic wiretaps are in fact two aspects of the same program. The TRAILBLAZER program, flawed as it is, is likely being used to create and analyze a database of phone records. Based on hits from the analysis of the phone records, the NSA is likely tapping the phone calls of those that it has a "reasonable suspicion" might be connected to terrorism. I think it is now clear why the NSA did not seek to get warrants for the domestic wiretaps and why they unilaterally lowered the standard for wiretaps to "reasonable suspicion" from "probable cause". The phone numbers that the NSA wants to tap are likely gathered using link analysis techniques applied on their database of phone records. Without having listened in on the actual calls all the NSA is able to establish is that person A may have communicated with person B through a series of intermediaries. The NSA would find it very difficult to get warrants using "probable cause" for taps on the phone numbers of the intermediaries. For all the NSA or the court knows the call to the "intermediary" may have been an innocent call to a pizza place. The explanation provided by General Hayden that the current FISA warrants are slow is probably not correct. The more likely explanation is that the NSA is on a fishing expedition based on  "reasonable suspicion" and no court would grant a warrant under these circumstances. Having run into the law of the land, the NSA and the Administration simply chose to ignore the law.

In their zeal to root out terrorists in our midst, General Hayden and this Administration have chosen to ignore laws that protect our civil liberties. They have chosen expediency at the expense of prudence. They have chosen ambitious programs that have wasted tax payer dollars on ideas that have barely left the drawing board. When faced with a choice between programs that were designed with the civil liberties of Americans in mind on the one hand and programs that promised maximum intrusion upon privacy on the other, General Hayden chose the latter. After September 11, 2001 General Hayden and the NSA killed a program called ThinThread, designed with privacy protections, in favor of the more expensive and more ambitious TRAILBLAZER program.

General Hayden has consistently demonstrated, in testimony before Congress and in his actions as head of the NSA, that he is quite willing to disregard or ignore Amerians’ privacy rights in his pursuit of "security".  As Congress considers the nomination of General Hayden today, they should be mindful of the General’s distaste for civil liberties and his demonstrated failure as a manager. General Hayden may be a very competent intelligence officer, but he has shown himself to be a poor manager and protector of civil liberties. General Hayden’s intelligence expertise can be harnessed by the intelligence community but he should not be in charge of one of the premier intelligence services of the United States Government. He promises to continue to disregard civil liberties if he is placed in a decision-making role at such a high level. He needs to be guided and checked by strong leaders who understand where the line should be properly drawn between civil liberties and security. As such, he is not fit to lead an agency but is qualified to be a senior member of such an agency. General Hayden has it backwards when he says, that if we draw the line  "overly favoring liberty or security, then the terrorists win and liberty loses in either case." On the contrary, the terrorists win every time our civil liberties are eroded. General Hayden would do well to remember the oft-quoted Benjamin Franklin’s admonition that "those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety. "

There is a remarkable opinion piece today in The Washington Post entitled "The Right Call on Phone Records". It is remarkable because the author, former Deputy Homeland Security Advisor and Deputy Assistant to the President Richard Falkenrath, has apparently taken leave of his senses.

The op-ed begins with this bizarre paragraph:

On Thursday, USA Today reported that three U.S. telecommunications companies have been voluntarily providing the National Security Agency with anonymized domestic telephone records — that is, records stripped of individually identifiable data, such as names and place of residence. If true, the architect of this program deserves our thanks and probably a medal. That architect was presumably Gen. Michael Hayden, former director of the NSA and President Bush’s nominee to become director of the Central Intelligence Agency. [Emphasis added by me]

When I read this, my initial thought was that the author was joking. But as I read through the rest of the fantasy piece I realized that Mr. Falkenrath was quite serious. I hope the remaining people at the top level of Homeland Security do not believe that a phone number is "anonymized" as Mr. Falkenrath appears to believe. If our senior leaders are this ignorant then we are in very serious trouble.  Here’s a little exercise for you, Mr. Falkenrath. Given the phone number 202-456-1414, how long will it take the NSA to find out whom this number belongs to? Ok, don’t hurt yourself. I will tell you. It will take them less then 23 seconds. Try it for yourself. Go to AnyWho and do a reverse lookup on 202-456-1414. Within seconds you will find that this phone number belongs to:

White House Switchboard Main Number

WASHINGTON, DC 20001

Very few career government officials possess the expertise, initiative and creativity needed to devise a system to penetrate such networks, using only existing statutory and presidential authorities, employing only existing technical and personnel resources, and violating the privacy of no American. Yet, if the USA Today story is correct, this appears to be exactly what Hayden did.

Some legislators and observers have questioned the legality of the alleged NSA domestic telephone records collection program. If the facts of the program are as reported in USA Today, there is every reason to believe that the program is perfectly legal.

There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA’s alleged receipt and retention of such information is perfectly legal.

Mr. Falkenrath must be patting himself on the back for his clever logical inversion here. It is a very nice argument to put the Government’s actions in the passive voice. To imply that the phone companies somehow left the phone records on the NSA’s doorstep and one fine morning General Hayden discovered these records as he went out for the morning paper is too clever an argument to sustain itself. Mr. Falkenrath ignores the fact the Government demanded these records from the phone companies without the required court orders. It went as far as to try to bully and blackmail Qwest into turning over the phone records. That kind of behavior hardly suggests that the NSA was a passive actor in this fiasco. Perhaps Mr. Falkenrath needs a reminder of the laws that were broken when the NSA demanded these records without a court order. You can read my layman’s analysis here or Professor Kerr’s analysis here and here.

Mr. Falkenrath concludes by putting in a plug for General Hayden for the CIA Director post. He also praises the can-do gung-ho attitude of General Hayden in contrast to the timidity of the rest of the bureaucracy:

Bureaucrats excel at finding reasons not to do something. They are most often guilty of sins of omission, not commission. A timid, ordinary executive might have concluded that it was too risky to ask U.S. telecommunications companies to provide anonymized call records voluntarily to an agency such as the NSA, dealing with foreign intelligence. If the USA Today story is correct, it appears that Mike Hayden is no timid, ordinary executive. Indeed, it appears that he is exactly the sort of man that we should have at the helm of the CIA while we are at war.

Mr. Falkenrath apparently does not understand that there is a difference between initiative and law breaking. The Constitution and the laws are there for a purpose. Choosing to ignore the laws does not make a good executive or a good nominee for the position of Director of Central Intelligence.

Mr. Falkenrath’s deeply flawed opinion piece should cause all citizens alarm. This opinion piece is a window into the thinking of some our top officials in Government entrusted with protecting us. The level of ignorance and incompetence demonstrated by Mr. Falkenrath may unfortunately be commonplace amongst the political appointees within this Administration. For exposing this level of incompetence, we all owe Mr. Falkenrath an enormous debt of gratitude.

The story goes like this: Negroponte is unhappy with Goss. Negroponte goes to Bush for help in getting rid of Goss. Bush approves. Goss is fired. Hayden is looked upon as a likely replacement. Bush will announce on Monday that Hayden is the new CIA Director.

That is the story that the major news outlets are peddling based on some high octane spin coming from the White House. Karl Rove must be losing what hair he has left burning the midnight oil.

I have one major problem with this story line. The problem is that Porter Goss dropped everything on Friday and ran to the White House with virtually no notice to quit. That is simply not done when you are the Director of the Central Intelligence Agency in the middle of an intelligence driven War on Terror. His hasty exit has left the CIA in turmoil. If he was pushed out as a result of a power struggle the Administration would have had a successor at the ready to smooth the transition. Not having a successor ready is either monumentally irresponsible or an indication of a scandal that is big enough that all other considerations seemed not to matter to Goss and the President.

Adding fuel to the fire, asked about his resignation Porter Goss was decidedly unhelpful:

Porter Goss said Saturday that his surprise resignation as CIA director is "just one of those mysteries," offering no other explanation for his sudden departure after almost two years on the job.

It looks like Porter Goss is not on board with the program. Look for Goss to sing like a canary in the near future.

We are also to believe that John Negroponte was involved in a power struggle with Goss.  To buy into this spin, we would have to believe that Mr. Negroponte takes his job seriously. Unfortunately, Mr. Negroponte is so engaged in his job as the Director of National Intelligence that he spends three hours of his busy workday relaxing at a ritzy private club:

On many a workday lunchtime, the nominal boss of U.S. intelligence, John D. Negroponte, can be found at a private club in downtown Washington, getting a massage, taking a swim, and having lunch, followed by a good cigar and a perusal of the daily papers in the club’s library.

“He spends three hours there [every] Monday through Friday,” gripes a senior counterterrorism official, noting that the former ambassador has a security detail sitting outside all that time in chase cars. Others say they’ve seen the Director of National Intelligence at the University Club, a 100-year-old mansion-like redoubt of dark oak panels and high ceilings a few blocks from the White House, only “several” times a week.

…

But there seems to be a new, relaxed John Negroponte. And some close observers think they know why.

He’s figured out the job. Which is to say, he really doesn’t have much control over the 16 U.S. intelligence agencies.

It does not appear that Negroponte was struggling with much of anything let alone struggling with the Director of the CIA.

If there was a power struggle, it might have been between the Defense Department and the CIA. The Defense Department appears to be usurping most of the intelligence budget and activities from the CIA. Mr. Negroponte is a hapless bystander in this power struggle as the following exchange with Senator Diane Feinstein illustrates:

“We appointed you to be the person to (run) all intelligence,” Sen. Dianne Feinstein, D-Calif., lectured Negroponte at a Feb. 28 hearing of the Senate Select Intelligence Committee. (CQ Transcripts: Senate Select Intelligence Committee hearing, Feb. 28, 2006)

Feinstein asked Negroponte about “recent media reports [that] have spotlighted a number of activities that appear to be related to intelligence collection or covert action, but that well may be outside of the official intelligence community’s channels.

“For example,” Feinstein continued, “military databases of suspicious activity reports . . . by the (domestic military) counterintelligence field activity, or CIFA; and, secondly, a Pentagon program to secretly pay Iraqi newspapers to run pro-American articles.

“Were these activities subject to your approval and oversight?”

Negroponte’s answer was short-circuited by an unidentified voice, according to the CQ transcript, quite possibly his deputy, former Air Force general and NSA chief Michael Hayden.

“Ma’am, I don’t believe that either of those activities would fall into Mr. Negroponte’s area. They are Department of Defense programs, I believe.”

“Now, let me raise this problem then,” Feinstein continued.

“Now, I know how tough it is. But if you didn’t know and you didn’t give a go-ahead [to domestic military spying], it indicates to me that, for 85 percent of the budget, which is defense-related, that you’re not going to have the controls that you should have,” Feinstein said.

“You want to comment?”

Negroponte, who not long ago in Baghdad was dismissing senior military officers with the wave of his hand, had to be feeling an acute wave of heartburn.

The Director of National Intelligence was forced to concede that the U.S. intelligence activities Feinstein was asking him about had “not risen to the level of my office.” In any event, they came “under the direction of the undersecretary of defense for intelligence” — a pipsqueak, relatively speaking.

Negroponte said he “understood” that the Pentagon was doing an internal review of spying programs because of a congressional uproar.

“But will you get the results of that review?” Feinstein asked.

“Yes,” promised Negroponte, dismissed like a schoolboy, “I will get those results.”

Enter General Michael Hayden. He apparently is the forerunner to be the new CIA Director. If he is nominated it will be a victory for Dick Cheney and will further diminish the power of the CIA vis-à-vis the Defense Department. Michael Hayden after all is Dick Cheney’s go to guy for warrant-less eavesdropping. The former Director of the National Security Agency was the implementer and chief public defender of the Administration’s warrant-less domestic spying program. General "Bill of Rights" Hayden of course famously excised the "probable cause" clause from the Fourth Amendment:

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the —

GEN. HAYDEN: That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

QUESTION: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

He is just the guy we need to head our spy agency.

Michael Hayden, the Defense Department and Dick Cheney (even perhaps Negroponte) may be jockeying to take advantage of the power struggle caused by Goss’s departure but it is not plausible to conclude that they were the primary cause of his departure. The New York Daily News asserts today that its "all about the Duke Cunningham scandal" (better known as Hookergate). The Wall Street journal also reports that Goss’s number 3, Kyle "Dusty" Foggo, may be under federal criminal investigation for his involvement in Hookergate. Josh Marshall widens the net by looking at possible misdeeds at the DHS related to Hookergate contracting. No one however has yet connected Porter Goss directly to the scandal. The involvement of Foggo with Hookergate does not explain the abruptness of the Goss exit. Something else must have spooked Goss. Whatever caused his sudden flight probably involves him directly, not tangentially.

There is way too much smoke here for there not to be fire. There is much original reporting to do here. I trust that our worthy investigative reporters will leave no stone unturned to unearth the roots of this scandal. The Nixon Watergate scandal started with a third rate burglary. The reality challenged G. Gordon Liddy has always claimed that the real story involved hookers. Mr. Liddy may finally get his wish in that the new Watergate scandal is starting with hookers. Where it leads is anyone’s guess. However, it does promise to be a hot summer in Washington.