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From the Bush/Cheney White House perspective, Hayden had performed quite well working with the supine mainstream media to defend the Bush/Cheney illegal eavesdropping programs. For services performed, Hayden was nominated on May 8, 2006, reportedly at Cheney's urging, to replace CIA Director Porter Goss, who had retired abruptly on May 5 after just seven controversial months as director.
So the nomination of Hayden to lead the CIA was very much on the minds of Inman, Risen and others who gathered for a public discussion at the New York Public Library that same afternoon, May 8, 2006. Participants were brought up short when Inman took strong issue with Hayden's flouting of FISA:
"There clearly was a line in the FISA statutes which says you couldn't do this," said Inman, who went on to call specific attention to an "extra sentence put in the bill that said, 'You can't do anything that is not authorized by this bill.'"
Inman spoke proudly of the earlier ethos at NSA, where "it was deeply ingrained that you operate within the law and you get the law changed if you need to." Risen quipped about how easy it would have been to amend the FISA statute after the 9/11 attacks when the American people were demanding revenge: "In October 2001, you could have set up guillotines on the public streets of America."
Attorney General Gonzales, however, knew that there were still institutional obstacles to the NSA figuratively decapitating the Fourth Amendment. At a press conference on Dec. 19, 2005, three days after the Risen/Lichtblau disclosures in the New York Times, Gonzales was asked why the administration did not seek new legislation to enable it to conduct the eavesdropping program legally. He responded:
"We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."
This was not the only hint at the time that the surveillance program was so huge in scope and so intrusive that even a servile Congress, typically reluctant to turn down any project labeled "anti-terrorist," would not have blessed it. Really, could even a door-mat Congress be expected to approve "Collect Everything?"
Inman's Short-Lived Criticism
By happenstance, I found myself with a front-row seat watching honor among thieves play out, i.e., how the Washington Establishment generals and admirals cover for one another. Inman's remarks at the New York Public Library had been written up by Steve Clemons in his blog, The Washington Note.
Worse still for Hayden, Democracynow's Amy Goodman showed video clips of Inman's undisguised criticism of Gen. Hayden on the morning of May 17, less than a week before the Senate Intelligence Committee took up Hayden's nomination to be CIA director. Something needed to be done ... and quickly.
Specifically, Inman needed to be called to atone for his unspeakable sin of candor -- the more so since he enjoyed quasi-sainthood on both sides of the aisle in Congress. So there I sat on May 17 in the anteroom of the CNN/New York studio of Lou Dobbs, who wanted to talk to me about my mini-debate two weeks earlier with then-Defense Secretary Donald Rumsfeld on Iraq.
Into the waiting room rushed a breathless Bobby Ray Inman. I am then told that he has just been given part of my time, since he needed to discuss the nomination of Michael Hayden to head the CIA. I had read Steve Clemons's blog and was well aware of Inman's remarks on May 8. As he rushed to don a borrowed tie, I had just enough time to give him an atta-boy for his honesty at the library and to express the hope he would stay on message with Lou Dobbs. Naive me!
Watching the monitor, I saw Inman give his highest recommendation for Gen. Hayden as supremely qualified to head the CIA. That, I thought to myself, is how the system works. Hayden's nomination sailed through the Senate Intelligence Committee on May 23 by a vote of 12 to 3 and the full Senate on May 26 by 78 to 15.
A whiff of conscience showed through during Hayden's nomination hearing to become CIA Director, though, when he flubbed the answer to what was supposed to be a soft, fat pitch from Bush administration loyalist, Sen. Kit Bond, R-Missouri, then vice-chair of the Senate intelligence overlook committee:
"Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the Justice Department lawyers, and White House officials all told you was legal, and that you were ordered to carry it out by the President of the United States?"
Instead of the simple "Yes" that had been scripted, Hayden paused and spoke rather poignantly -- and revealingly: "I had to make this personal decision in early October 2001, and it was a personal decision ... I could not not do this."
Why should it have been such an enormous personal decision whether or not to obey a White House order? No one asked Hayden, but it requires no particular acuity to figure it out.