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Stopping Hayden & the NSA

By Ivan Eland
May 17, 2006

Editor's Note: As the American people belatedly focus on their lost liberties from the War on Terror, there suddenly seems to be a lot of quibbling going on. Two of the major U.S. phone companies -- Verizon and BellSouth -- have issued carefully worded statements asserting that they did not turn over all their customers' phone records to the Bush administration for a vast database aimed at tracking patterns of phone calls supposedly to identify suspected terrorists.

USA Today reported last week that the two companies and AT&T had agreed to cooperate by surrendering the phone records, but not the customers' names and addresses, while Qwest rejected the government's request outright. The Verizon/BellSouth denials require detailed analysis of the parsed corporate language, but one possible dodge is that the denials don't cover long-distance subsidiaries, like MCI, which Verizon bought in January.

Similar splitting of hairs appears to have occurred in the Bush administration's internal battles over how far to go in encroaching on constitutional freedoms, with some "hardliners," like Vice President Dick Cheney reportedly favoring warrantless intercepts of all domestic calls while "moderates," such as former National Security Agency director Michael Hayden, proposed warrantless spying only on international calls made by Americans.

In this guest essay, Ivan Eland of the Independent Institute argues that these distinctions are more political than legal -- and the constitutional violations are so egregious that they justify closing down both Hayden's nomination to be CIA director -- and the NSA:

The nomination of Gen. Michael V. Hayden, the National Security Agency’s former director, to replace the disastrously incompetent Porter Goss as Director of the CIA, should be rejected on the grounds that Hayden subverted the U.S. Constitution.

In addition, the public debate about the efficacy of the recent intelligence reorganization should lead to the abolishment of his former agency and the inclusion of its more legitimate functions into a slimmed down and more agile intelligence community.

In an effort to save the Hayden nomination, intelligence officers, through leaks to the press, are arguing that only Hayden’s heroic efforts against Vice President Dick Cheney’s juggernaut limited the warrantless NSA eavesdropping program to cases where a caller in the United States was calling abroad or receiving a call from there.

They say the vice president believed, under his expansive theory of executive power, that the president could eavesdrop on purely domestic calls as well in order to preserve national security. But Hayden should be held accountable for suggesting the expansion of NSA’s activities into warrantless spying in the first place.

What part of the Fourth Amendment to the Constitution doesn’t the general understand? The amendment states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The amendment clearly intends that a warrant is needed for all searches—which includes modern-day eavesdropping and wiretapping—and specifically states that warrants should not even be issued unless government officials can attest that there is “probable cause” that a crime has been committed.

The highest law of the land deems the right of U.S. citizens to be protected against the government’s potent police power to be so important that it creates no exemption for “national security.”

The artificial distinction the Bush administration has made between the international and domestic calls of people in the United States is ludicrous and has no basis in law. The distinction has been made because it is easier to sell illegal and improper spying to the public and some in the intelligence community, who correctly believe that domestic spying of any kind will destroy public confidence in the nation’s intelligence agencies.

But even spying on international calls of people in the United States is unconstitutional without a warrant. So Hayden was advocating subverting the Constitution to expand the activities of his agency.

Also, under Hayden’s watch at NSA, he approved a program to attempt to keep track of every phone call in the United States, whether made within the boundaries of the country or involving a party abroad. The Bush administration maintains that this is not eavesdropping but merely keeping track of callers, recipients, and calling patterns so that they can be mined to uncover terrorist activities.

Can Americans really believe the president’s claim that the creation of such an expensive database doesn’t mean that the government is spying or will spy on the hundreds of millions of people whose calls are on file? The government has a long history of illegal and unconstitutional spying on individuals.

Also, this argument resembles Bill Clinton’s claim that he smoked marijuana but didn’t inhale—verbal gymnastics don’t reduce the illegality of the action. The creation of a massive government database detailing the calling patterns of Americans, even if no eavesdropping on individual calls occurs, is clearly a search of personal information without the warrant required by the Constitution. It also seems to violate the portion of the Fourth Amendment requiring specific, rather than general, searches.

But scrapping Hayden’s nomination to be CIA director is not enough. Those in the intelligence community who believed that spying on people in the United States could discredit spy agencies were right in the case of NSA. The NSA has been so discredited by its warrantless spying and data mining that it is time to reorganize the agency out of existence.

There has been some recent willingness in Congress and in the public debate to admit that the post-9/11 reorganization of the intelligence community has only added more bureaucracy to a system whose main problem during 9/11 was a lack of coordination among agencies.

The 16 agencies of the community need to be streamlined and consolidated. The place to start is NSA. This discredited agency should be eliminated and its more legitimate functions incorporated into a reorganized and more nimble intelligence community.

Ivan Eland is a Senior Fellow at The Independent Institute, Director of the Institute’s Center on Peace & Liberty, and author of the books The Empire Has No Clothes, and Putting “Defense” Back into U.S. Defense Policy.

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