This piece was reprinted by OpEdNews with permission or license. It may not be reproduced in any form without permission or license from the source.
This is a military officer who, like the rest of us, swore to support and defend the Constitution of the United States against all enemies, foreign and domestic; a military man well aware that one must not obey an unlawful order; and an NSA director totally familiar with the FISA restrictions. That, it seems clear, is why Hayden found it a difficult personal decision.
Knowing the Law
No American, save perhaps Admiral Inman and Gen. Odom, knew the FISA law better than Hayden. Nonetheless, in his testimony, Hayden conceded that he did not even require a written legal opinion from NSA lawyers as to whether the new, post-9/11 comprehensive surveillance program -- to be implemented without court warrants, without "probable cause," and without adequate consultation in Congress -- could pass the smell test.
Hayden said he sought an oral opinion from then-NSA general counsel Robert L. Deitz, whom Hayden later brought over to CIA as a "trusted aide" to CIA Director Hayden! (In the fall of 2007, Hayden launched Deitz on an investigation of the CIA's own statutory Inspector General who had made the mistake of being too diligent in investigating abuses like torture).
Interestingly, Hayden did not pass the smell test for Sen. Barack Obama, D-Illinois, who on May 25 took a principled stand against his nomination and voted against it the following day. In his brief but typically eloquent one-minute speech on the Senate floor, Sen. Obama was harshly critical of both Hayden and President George W. Bush. Obama insisted that "President Bush is not above the law; no president is above the law." His words did not ring as hollow then as they do now in retrospect.
To his credit, I suppose, President-elect Obama did get rid of Hayden -- for cause, as I tried to explain in "What's CIA Director Hayden Hidin'" on Jan. 15, 2009. I ended that article with the following word of "good riddance." (It was hardly prophetic -- rather a very safe bet):
"The sooner Hayden is gone (likely to join the Fawning Corporate Media channels as an expert commentator, and to warm some seats on defense-industry corporate boards) the better. His credentials would appear good for that kind of work."