Betts: Hayden Likely to Be Pressed in Confirmation Hearing on Wiretapping Issue

Richard K. Betts, the CFR’s top expert on the intelligence community, says that he sees no reason that the nomination of General Michael V. Hayden to head the Central Intelligence Agency should be blocked by Congress because of his military background. But he says that "there’s a powerful reason to consider opposing the nomination" and that is because of Hayden’s role in the wiretapping of people living in the United States by the National Security Agency, which he headed, without proper warrants.

"I don’t think there’s anything wrong with a general heading the agency. In the early days of the modern intelligence community it was usually expected that a military man would head it," says Betts, who is an adjunct senior fellow for national security studies. "It’s happened often in the past, and I don’t think there’s any problem in this sense. Certainly Hayden isn’t going to be a patsy, for either the military services or the Secretary of Defense, so I think that’s a phony concern."

On the wiretapping issue, Betts, who is the Arnold A. Salzman professor of war and peace studies at Columbia University, says "there’s the issue of the warrant-less eavesdropping, and the bigger question of whether intelligence programs should operate within the law, and whether Hayden was properly diligent in dealing with this issue when he was director of NSA, and the Bush administration wanted to institute warrant-less eavesdropping."

What’s the general reputation in the intelligence community of General Michael V. Hayden, who was named as the new head of the CIA?

I think it’s generally good. He had a much longer tenure than was normal as director of National Security Agency, and that was in part to give more continuity to leadership there, but also, obviously, because he was well regarded by those who put him there in the first place. He has been in the number two position in the organization of the community, and apparently has worked well with and has gotten the approval of John Negroponte [director of National Intelligence], for whom he worked as his deputy, otherwise he wouldn’t have been nominated. So I think all of that reflects a generally good opinion, although -- like in all huge bureaucracies -- you will find people who are critical.

Now the first people out of the box criticizing this appointment were some congressmen in key posts, like Rep. Peter Hoekstra, Republican of Michigan, who is head of the House Intelligence Committee, who said that it’s worrisome that a military officer would head the CIA. Is it so unique for military men to be in the leadership of the CIA?

No, I think there’s a powerful reason to consider opposing the nomination, but it’s not that. I don’t think there’s anything wrong with a general heading the agency. In the early days of the modern intelligence community it was usually expected that a military man would head it. It’s happened often in the past, and I don’t think there’s any problem in this sense. Certainly Hayden isn’t going to be a patsy, for either the military services or the Secretary of Defense, so I think that’s a phony concern.

Now you said there are reasons to be concerned. What would those be?

Well I think there’s the issue of the warrant-less eavesdropping, and the bigger question of whether intelligence programs should operate within the law, and whether Hayden was properly diligent in dealing with this issue when he was director of NSA, and the Bush administration wanted to institute warrant-less eavesdropping. I think it’s important to separate the question of whether warrant-less eavesdropping was a good thing to do, and the question of whether it has to be within the law.

Now he has said on the record that it was within the law, right?

Well this is the administration’s position. I don’t know what the Supreme Court would say if it ever came to that. I’m not a lawyer, but it looks to me like the administration’s position on that is very weak. What the administration should have done was to ask for legal authorization, which I think they could have gotten, through the Patriot Act or otherwise. Simply overriding that concern with the arguments that the inherent constitutional powers of the commander in chief -- or the passage of other legislation authorizing force -- allows the practice is a very weak argument. And an argument can be made that Hayden, in the position he was in, should have made stronger efforts to get the law changed to conform with the needs of intelligence.

So do you expect that the Senate Intelligence Committee, in the confirmation hearings, will press on this issue?

I assume so. Democrats will press on it in part for partisan reasons, because it’s a way to get at this question they’ve been concerned with in the past year anyway. Some Republicans, I think Senator Arlen Specter and others, share the concern, so they’re naturally going to press him on it. What form that will take, it’s hard to know, but they certainly can’t gloss over it and pretend that it hasn’t been an issue.

Let’s move a little to the CIA itself. The common wisdom around Washington seems to be that morale is very low, that Goss was really not a very good leader of the agency, and it really needs new faces. Is that what you’ve heard too?

Yes. But morale problems at the CIA are a cyclical phenomenon. There were a couple other times when things seemed very bad too, in the mid-1970s, for example. So this is not unprecedented. Washington has a short memory, though, usually, so it seems a unique problem to a lot of people now, and the symbolism of turning over leadership is the obvious way for the administration to try to show that it’s doing something about it.

There’s been a great deal of discussion of efforts by the Defense Department to increase its own human intelligence capabilities. Does this derive from Rumsfeld’s frustration with not getting good intelligence on where the insurgents are, for instance?

To be honest, I don’t really know enough about that. I could speculate, but all I know is what I’ve read in the New York Times. The Defense Department has always had a wide array of intelligence capabilities, and the military services have always wanted to have direct control over the kinds of assets that they need for tactical intelligence. So I don’t think this is new as a general phenomenon. The particular initiatives they are taking, in expanding one unit or another, which I don’t know about, may be bigger in scale than they’ve been in the past. But an issue now is the question of overall control, over espionage and human intelligence collection, because previous directives were that the new National Clandestine Service, which is the new name for the old CIA Directorate of Operations, would have overall coordinating authority for human intelligence collection. So a test of that would be how cooperative the Defense Department is in integrating whatever new programs of that sort that it has, with this guidance to have the National Clandestine Service in charge.

Well I see the Pentagon’s thing is managed by...I’m reading now from the Washington Post today: "Army Lieutenant General William G. "Jerry" Boykin, a legendary special operations officer who now holds the title of deputy undersecretary of defense for intelligence and war-fighting support." And the article says that "the Pentagon is demanding that the CIA share its most sensitive databases, that small teams of undercover soldiers be allowed to secretly collect information in friendly countries, and that clandestine teams of military man-hunters be allowed to sneak into countries with which the United States is not at war to kill or capture terrorism suspects." Interesting?

Could be. I don’t know anything about it myself.

You know, except for Admiral Stanfield Turner who was President Jimmy Carter’s director of Central Intelligence, I didn’t know of any other military people who were on active duty when they were heading the CIA...

He was the last one, although Admiral Bobby Inman, the deputy director in the 1980s, was a very influential deputy director. But in the early days, the first several were military men. Sidney Souers, Roscoe Hillenkoetter, Hoyt Vandenberg, Walter Bedell Smith were all generals or admirals. Then there were a bunch of civilians, and maybe not another one until Turner. When the National Security Act was passed, the law stated that only one of the top two people, the Director of Central Intelligence or his deputy, could be a military officer. They did want to take precautions to make sure they weren’t both military officers. But I think that, in a way, reflects the assumption that intelligence would still be dominated by the military, which was the traditional assumption and the way it is in most countries, but which over the course of the Cold War and the expansion of the U.S. intelligence community, sort of went away.

Do you expect the nomination to run into serious trouble?

Well, I would think it will be a tough battle. Maybe they’ll win in the end, but I was frankly surprised. I had thought that when the story about the warrantless eavesdropping came out, I remarked to friends that this probably unfortunately means that Hayden will never be director of National Intelligence, because I assumed the hearings would just be too problematic. But apparently that isn’t the way the administration has been thinking. So maybe they can push it through. And if it goes through, I think this will be a real signal about the political context, in general, and the public tolerance for a very permissive view of legal constraints.

I suppose one of the problems is a lack of information. The administration has been arguing that it is only monitoring conversations between suspected al-Qaeda operatives in this country and abroad; that it’s not dealing with ordinary folk. Do you think this is fallacious?

My own view is that this is a good thing and should be allowed, but that the law should be amended so that it operates within the law. Again, I’m not a lawyer, but my layman’s understanding of what the law said about the requests and warrants was that the administration’s rationale for how this is legal is really tortured. It’s like their rationale for how "water-boarding" and all those other techniques weren’t torture. And it looks to me like they decided they wanted to do it without changing the law, so they had the lawyers dream up some idea for how to do it. But be that as it may, that’s something that hypothetically the courts might work out, if this goes into the judicial system. If it doesn’t, then the president is going to get away with it, because nobody’s going to impeach him over it. But there’s still a cloud over anyone who Congress has control over, if that person is identified with the program, and it seems to me that’s Hayden’s situation.

It’s interesting that when the issue first arose in the New York Times it seemed to generate a great deal of discussion, then seemed to drop off the front burner. Now it’s obviously going to be brought back again full time.

I would think so. My guess is that will take up a good deal more time then the concerns about his being a military officer. But I was wrong about whether he would ever be nominated for anything, so I may be wrong about what’s going to happen in the hearings.

Now would this presumably help Negroponte, having a close associate running the CIA?

I assume so. Hayden wouldn’t be nominated for this if he wasn’t trusted and relied upon by Negroponte, so I assume that’s the guarantee that they’re going to have a closer working relationship than he had with Goss.