President Bush's selection of Gen. Michael Hayden to replace CIA Director Porter Goss has stirred controversy even among Republicans, but the choice may be more savvy than politically risky.
From 1999-2005, Hayden headed up the National Security Agency, and much of the opposition to his nomination will likely come from critics of the NSA's secret surveillance program, which targeted communications between known terrorists overseas and persons in the United States.
When The New York Times revealed the existence of the program several months ago, Democrats -- and a handful of Republicans -- were quick to question the president's authority to order such intercepts without first obtaining search warrants from a special federal court, the Foreign Intelligence Surveillance Act (FISA) court. The most outspoken critics suggested impeachment might be justified by the president's action. But the furor has largely died down, and re-focusing on the issue might actually help the president, not hurt him.
From the beginning, the public seemed unconvinced that the warrantless eavesdropping was a gross violation of civil liberties. Most Americans, who clamored for better intelligence in the wake of the 9/11 attacks, didn't buy arguments that the president had no authority in wartime to listen in on conversations or intercept e-mails between known terrorists and their agents in the U.S. without seeking permission from a FISA court. But some members of Congress have pushed ahead to try to rein in the program nonetheless.
Last month, Democrats in the House failed to attach amendments to the 2007 Intelligence Authorization bill to restrict the NSA program. And Senate Judiciary Committee Chairman Arlen Specter, R-Pa., continues to push for more operational details on the program. He has held four hearings so far and, on Sunday, warned that he might use confirmation hearings as "leverage" to get more information.
Specter told The Washington Post that "this gives us an opportunity to ask these questions and insist on some answers if the Senate is of a mind to deny confirmation," but the White House doesn't seem especially worried.
Hayden has been the administration's point man in explaining the necessity of the program. Since he's not an attorney, no one expected him to make the legal arguments for the president's inherent or explicit authority to order surveillance without first obtaining warrants -- a more difficult job that fell to Attorney General Alberto Gonzales.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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